nevada reports 1935-1936 (56 nev.).pdf

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ÐÐÐÐ56 Nev. 1, 1 (1935) Picetti v. Orcio et al.ÐÐÐÐ

PICETTI v. ORCIO et al.

No. 3096

ON MOTION TO RESTORE APPEAL

March 1, 1935. 41 P. (2d) 289.

1. Appeal and Error.Statute permitting appellant to file transcript of testimony in lieu of bill of exceptions did not

contemplate that such transcript might not be used with other documents or matters to make up bill of

exceptions for settlement by trial judge (Comp. Laws 1929, sec, 9398).

2. Appeal and Error.Matters not embraced in judgment roll must be embraced in bill of exceptions, with certain

exceptions, to be reviewed.

3. Appeal and Error.Transcript of testimony in volume of record containing also notice of intention to move for new trial,

order denying motion, and trial judge's certificate settling bill of exceptions after reporter's certificate,

held not intended to constitute entire bill of exceptions (Comp. Laws 1929, sec. 9398).

4. Appeal and Error.Appeal should not have been dismissed on ground that record was not filed within 30 days after

perfection of appeal and filing of bill of exceptions, which respondent's counsel erroneously believed to

consist of transcript of testimony only, where transcript was filed within 30 days after trial judge settledbill (Comp. Laws 1929, sec. 9398).

5. Appeal and Error.Failure of bill of exceptions to show settlement thereof within time contemplated by law held not

ground for dismissal of appeal, since appellant is entitled to consideration of matter involved on

judgment roll alone and it may be that bill can be amended (Comp. Laws 1929, sec. 9404).

Appeal from Second Judicial District Court, Washoe County, Second District; Thomas F.

Moran, Judge.

Proceeding between Jennie Picetti and Joe M. Orcio and others. From the judgment

rendered, Jennie Picetti appeals. On appellant's motion to restore the appeal after dismissalthereof. Order dismissing appeal vacated, and appeal restored.

J. M. Frame and W. M. Kearney, for Appellant, did not file a brief on the motion.




L. D. Summerfield, for Respondent:

This court has established the law that under sec. 9398 N. C. L., an appeal may be taken

under two optional methods, so far as the bill of exceptions is concerned: (1) under what has

commonly come to be known as the “narrative form,” which must be settled and allowed by

the trial court, or (2) by using the reporter's transcript of the proceedings, which is not

required to be settled and allowed, but becomes the bill of exceptions when served and filed.(State ex rel. Capurro v. District Court, 54 Nev. 371, 17 P. (2d) 695.)

Of course, the transcript can also be used as a portion of the narrative form, but, it is

submitted, if so used, must be served and filed as a part of the entire proposed bill of

exceptions, and not separately and by itself, because, if served and filed separately and by

itself, it must be presumed that appellant has by that act exercised his option to have it

considered in and of itself as the bill of exceptions. It is submitted that a record on appeal

should clearly show and indicate which of the optional methods of appeal is relied upon, and

should not be misleading.

In any event, so far as this court is entitled to consider this record there is no bill of

exceptions at all, and the record on appeal was not filed within thirty days after the appeal had

been perfected, as required by rule II of the supreme court. Volume 1, not being, norpurporting to be, a bill of exceptions properly served, settled and allowed, obviously nothing

in it but the documents constituting the judgment roll are properly before this court and can

be considered. Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; Nevada First Nat.

Bank v. Lamb, 51 Nev. 162, 271 P. 691; Peri v. Jeffers, 53 Nev. 49, 292 P. 1; Brearley v.

Arobio, 51 Nev. 382, 12 P. (2d) 339. Even in volume 2 of the record on appeal, which

appellant claims is a bill of exceptions, there is no showing that the time to serve and file the

bill of exceptions was ever extended.

Examining the record without any bill of exceptions, for the reasons stated, it next appears

that the appeal ZDVSHUIHFWHGE\VHUYLQJDQGILOLQJDQRWLFHRIDSSHDORQ$XJXVW

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was perfected by serving and filing a notice of appeal on August 26, 1934, and filing the

undertaking on appeal on August 29, 1934. Therefore, under rule II of the supreme court, the

record on appeal should have been filed within thirty days from August 29, 1934, whereas

ninety days elapsed.

OPINION

By the Court, Coleman, J:

Pursuant to rule III of the court, we dismissed the appeal in the above-entitled matter, on

the ex parte motion of counsel for respondents.

The motion to dismiss was upon the ground that the record on appeal was not filed within

thirty days after the appeal had been perfected and the bill of exceptions had been filed, as

required by rule II of this court.



The motion recites that the appeal was perfected by serving and filing of a notice of appeal

on August 26, 1934, and by filing the undertaking on appeal on August 29, 1934; that the bill

of exceptions was settled on October 9, 1934, by serving and filing the transcript of the

proceedings, properly certified to by the official court reporter. A certificate of the clerk of the

trial court, as provided in rule III, was presented in support of the motion to dismiss.

The appellant has moved to restore the appeal, as provided by section 2 of rule II.Chapter 97, sec. 1, Stats. 1923, p. 163 (section 9398 N. C. L.), provides, inter alia: “A

transcript of the proceedings certified by the court reporter to be a full, true, and correct

transcript thereof may be filed in lieu of such bill of exceptions and when so filed shall be and

constitute the bill of exceptions without further stipulation or settlement by the court;

provided, however, that on motion duly noticed, the court may at any time correct any error in

such transcript by appropriate amendment thereto.”

Counsel for respondent was at the time the motion WRGLVPLVVZDVPDGHDQGQRZLVRI WKHRSLQLRQWKDWQRWKLQJPRUHZDVLQFRUSRUDWHGLQWKHSURSRVHGELOORIH[FHSWLRQVWKDQ

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to dismiss was made, and now is, of the opinion that nothing more was incorporated in the

proposed bill of exceptions than the transcript of the testimony, certified to by the reporter. It

was upon this theory he urged the dismissal of the ex parte hearing.

The record on appeal consists of two volumes. Volume No. 2 contains a transcript of the

testimony, certified to by the court reporter. On page 178 is the certificate of the court

reporter, the last folio on that page being 534. In the said volume 2 of the record are

additional pages, containing pages 179, 180, 181, 182, and 183; the last folio being No. 546.

This volume was filed in the office of the clerk of the trial court October 9, 1934.The pages following the certificate of the official court reporter contain notice of intention

to move for a new trial, the order denying the motion for a new trial, and the certificate of the

trial judge, of date November 7, 1934, settling the bill of exceptions. The record on appeal

was filed in this court within thirty days from the settling of the bill of exceptions by the trial

judge.

On motion to restore the appeal, counsel for appellant presented an affidavit to the effect

that the said volume 2 contained the documents just mentioned, in addition to the transcript

of the testimony.

No counter affidavit is filed, though counsel for respondent states that it is his impression

that the documents referred to, in addition to the transcript of the testimony, were notincorporated in the proposed bill of exceptions, but that “in the absence of a definite

recollection of what the bill of exceptions contained when originally served,” he prefers to

accept the affidavit of counsel for appellant, and assume that he was misled by the form of the

bill of exceptions.

1, 2. The portion of chapter 97, Stats. 1923, above quoted, did nothing more than to give

permission to file a transcript of the testimony in lieu of a bill of exceptions. It did not

contemplate that such a transcript might not be used with other documents or matter to make



up a bill of exceptions to be settled by the WULDOMXGJH


trial judge. When this court, in the year 1926, in the case of Water Co. v. Tonopah BelmontDev. Co., 49 Nev. 172, 241 P. 1079, held that section 5336 Rev. Laws 1912 (which, by some

misfortune, was carried into N. C. L. 1929 as section 8903), had been repealed, it became

necessary that all matters not embraced in the judgment roll, which were sought to be

reviewed, be embraced in a bill of exceptions, with certain exceptions, as we have repeatedly

pointed out. Brearley v. Arobio et al., 54 Nev. 382, 12 P. (2d) 339, 19 P. (2d) 432.

3. In the instant matter it clearly appears that it was not the intention of counsel for

appellant that the transcript of the testimony should constitute the bill of exceptions, but that

the other matter thereto attached should become a part of the bill of exceptions.

4. It appearing that the transcript on appeal was filed within thirty days from the settlement

of the bill of exceptions by the trial judge, it is clear that the appeal should not have beendismissed.

5. Counsel for respondents contend, however, that it does not appear from the bill of

exceptions that it was settled within the time contemplated by law. Conceding this to be true,

appellant is entitled to have the court consider the matter on the judgment roll alone;

f urthermore, in view of the spirit manifested by section 9404 N. C. L., and our ruling in

Brockman v. Ullom, 52 Nev. 267, 286 P. 417, it may be that the bill of exceptions can be

amended.

For the reasons given, it is ordered that the order heretofore entered herein dismissing the

appeal in this case be vacated, and that the appeal be restored.

____________

ÐÐÐÐ56 Nev. 6, 6 (1935) First National Bank v. Abel et al.ÐÐÐÐ

FIRST NATIONAL BANK OF WINNEMUCCA v.

ABEL et al.

No. 3086

ON MOTIONS TO DISMISS, ETC.

March 6, 1935. 41 P. (2d) 1061.

1. Appeal and Error—Exceptions, Bill of—Executors and Administrators.Where original complaint was entitled against “D. K. A. administratrix,” but body of complaint

showed that action was against defendant in representative capacity, word “administratrix” in title held

not merely descriptio personae, and defendant was not entitled to have appeal dismissed on ground that

amended complaint, notice of appeal, undertaking on appeal, and bill of exceptions, all of which were

entitled against defendant “as administratrix,” were filed in different action (Comp. Laws 1929, sec.



8905).

2. Appeal and Error—Exceptions, Bill Of.Dismissal of action as to one of defendants held “ final judgment,” as respects time for filing bill of

exceptions in lower court and for perfecting appeal (Comp. Laws 1929, sec. 8885, par. 1; sec. 9398).

3. Exceptions, Bill Of.Errors appearing on face of judgment roll need not be incorporated in bill of exceptions (Comp. Laws

1929, secs. 8829, 9398).

4. Judgment.Copy of judgment, striking amended complaint and dismissing action, filed by the clerk became part

of “judgment roll” (Comp. Laws 1929, sec. 8829).

5. Appeal and Error.Where judgment striking complaint and dismissing action as to certain party was rendered on motion,

such motion and notice thereof held not part of “judgment roll,” and plaintiff's attorney was entitled to

bring the motion and notice thereof into record on appeal by bill of exceptions, so that transcript of

record on appeal, filed within thirty days after bill of exceptions was settled, was timely though filed

more than thirty days after appeal was perfected (Comp. Laws 1929, secs. 8829, 9398; Supreme Court

Rules, rule II).

Supreme court rules, rule II, provides that transcript of record on appeal shall be filed withinthirty days after appeal has been perfected and bill of exceptions has been settled.

Appeal from Sixth Judicial District Court, Humboldt County; E. P. Carville, Judge,

presiding.


Action by the First National Bank of Winnemucca against Daisy K. Abel, administratrix of

the estate of W. H. Abel, deceased, and another. From a judgment dismissing the action as to

named defendant, plaintiff appeals. On named defendant's motions to strike the notice of

appeal, the undertaking on appeal and the bill of exceptions, and to dismiss the appeal and

affirm the judgment of dismissal. Motions denied.

Hawkins, Mayotte & Hawkins, for Respondent, Daisy K. Abel:

The only legal complaint or grievance of appellant is to the action of the district court in

dismissing the action as to the defendant, “Daisy K. Abel, Administratrix of the Estate of W.

H. Abel, Deceased,” after demurrer to the complaint had been sustained and plaintiff given

ten days within which to file an amended complaint. Appellant failed within the time, or at

all, to file an amended complaint against the defendants named in the original complaint, but

sought, by filing its so-called first amended complaint, to change the party defendant; hencethe court had the authority and it was its duty to dismiss the original action as against the

therein-named defendant, to wit: “Daisy K. Abel, Administratrix of the Estate of W. H. Abel,

Deceased.”

If such ruling and order of the court be error, and appellant seeks to have such error

reviewed by the supreme court, no bill of exceptions is necessary or proper, and the matter

may be reviewed by the supreme court upon the judgment roll, under sec. 8829 N. C. L.

The court's action and order in granting the motion to strike from the files the so-called



first amended complaint is not an appealable order, and can only be reviewed in the supreme

court, if at all, upon an appeal taken in the original action, and from a final judgment

disposing of said action and the rights of the parties in said original action. Sec. 8874 N. C. L.

Any appeal which may be taken from the order of WKHFRXUWRI1RYHPEHUPXVW RIQHFHVVLW\EHIURPWKDWSRUWLRQRIVDLGRUGHUZKHUHLQWKHDFWLRQDJDLQVW³µ'DLV\.


the court of November 13, 1933, must of necessity be from that portion of said order wherein

the action against “‘Daisy K. Abel, Administratrix of the Estate of W. H. Abel, Deceased,'

named as defendant in the original complaint, be, and the same hereby is, dismissed.” No bill

of exceptions upon such appeal is necessary or proper. Miller v. Walser, 42 Nev. 497, 181 P.

437.

C. E. Robbins, for Appellant, did not file a brief on the motions.

OPINION

By the Court, Ducker, C. J.:

The complaint in this action was filed in the lower court under the following title: “First

National Bank of Winnemucca, a corporation, plaintiff, vs. Daisy K. Abel, Administratrix of

the Estate of W. H. Abel, deceased and Emery Riffe, Defendants.” A demurrer to the

complaint was sustained and plaintiff was given leave to amend.

An amended complaint was filed in which the title of the action was amended by

describing the defendant Daisy K. Abel as administratrix of the estate of W. H. Abel,

deceased.A motion to strike the amended complaint was sustained, and the action was dismissed as

to the first-named defendant. Hence this appeal.

The matter before this court consists of a number of motions made by the defendant so

dismissed from the action. She will be hereinafter referred to as respondent.

1. There is a motion to strike the notice of appeal, the undertaking on appeal, the bill of

exceptions, to dismiss the appeal, and to affirm the order or judgment of dismissal.

One objection is pressed by respondent in all her motions; that no appeal has been

perfected. This objection is predicated upon the contention that in the RULJLQDOFRPSODLQW UHVSRQGHQWLVVXHGDVDQLQGLYLGXDOWKHZRUGV³$GPLQLVWUDWUL[RIWKH(VWDWHRI:+$EHO

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original complaint respondent is sued as an individual, the words, “Administratrix of the

Estate of W. H. Abel, Deceased,” being merely descriptio personae. Hence it is argued that

the amended complaint, the notice of appeal and undertaking on appeal in all of which said



respondent is described in the title “as Administratrix of the Estate of W. H. Abel, deceased,”

were filed in a different action, to wit, in an action in which respondent is sued in her

representative capacity.

The contention cannot be sustained. The body of the original complaint shows clearly that

the pleader intended to and did place the action against respondent in her representative

capacity. It is alleged: “That Daisy K. Abel, on or about the first day of April, A. D. 1931,was by the above-entitled court appointed and thereafter qualified as administratrix of the

estate of W. H. Abel, deceased, and that ever since she has been and now is the duly qualified

and acting administratrix of said estate.”

It is further alleged that at the time of his death said W. H. Abel was indebted to plaintiff,

appellant here, by reason of certain promissory notes; that a claim for the amount due thereon

was filed against said estate with the clerk of said court; that on or about the 24th day of

September, 1932, the said claim was by Daisy K.Abel, as such administrator, rejected and the

said claim totally disallowed. As the body of the complaint shows the action to be against

respondent in a representative capacity, the omission of the word “as” or other term to make

this clear in the title is immaterial. Particularly should we so hold in view of the express

injunction in section 8905 N. C. L.: “* * * An appeal shall not be dismissed for anyirregularity not affecting the jurisdiction of the court to hear and determine the appeal or

affecting the substantial rights of the parties. * * *”

But the authorities quite generally sustain the view we take. In 47 C. J., sec. 327, it is

stated: “The character in which one is made a party to a suit must be determined from the

allegations of the pleading, and QRWIURPLWVWLWOHDORQH


not from its title alone. And where there is a wrong description or no description in the title,the error will be deemed merely formal. A substantial description is sufficient. And where the

allegations of the complaint indicate with reasonable certainty that a plaintiff sues, or a

defendant is sued, in a representative capacity, although there be no express or specific

averment thereof, this is sufficient to fix the character of the suit.”

The authorities cited are ample to sustain the text.

In Beers v. Shannon, 73 N. Y. 292, it was held that the omission of the word “as” between

the name of the plaintiff, and words descriptive of his representative character in the title, did

not prevent him from claiming in that capacity where the complaint otherwise showed that

the cause of action, if any, devolved upon him solely in that character.

It was contended in the case of Carr v. Carr, 15 Cal. App. 480, 115 P. 261, 262, that theomission to insert the word “as” after the name of the plaintiff, in the title of the action,

necessarily made the action one prosecuted by plaintiff in his individual right, and not in his

representative capacity. In answer thereto the court said: “There is no merit in this claim,

since the averments of the complaints themselves clearly and distinctly disclose that plaintiff

brought the action as the administrator of the estate of Michael Carr, deceased, and not in his

own right.” See, also, 24 C. J., sec. 2069, pp. 824, 825.

2. Our conclusion as to this question also disposes of the objection urged in the motion to



strike the bill of exceptions because its title is the same as the title of the original complaint.

The dismissal of the action as to the respondent, November 13, 1933, was a final judgment,

and the bill of exceptions filed in the lower court on December 2, 1933, was therefore filed

within the twenty days required by section 9398 N. C. L. The appeal being from such final

judgment was perfected as required by paragraph 1 of section 8885 N. C. L.

3-5. In support of the motion to dismiss the appeal LWLVXUJHGWKDWWKHWUDQVFULSWRIWKH UHFRUGRQDSSHDOZDVQRWILOHGLQWKLVFRXUWZLWKLQWKHWLPHUHTXLUHGE\UXOH,,RIWKHUXOHV

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it is urged that the transcript of the record on appeal was not filed in this court within the time

required by rule II of the rules of the supreme court. The rule reads: “The transcript of the

record on appeal shall be filed within thirty days after the appeal has been perfected and the

bill of exceptions, if there be one, has been settled.”

The appeal was perfected May 11, 1934, and the transcript of the record on appeal was

filed in this court some four months thereafter. Respondent insists that no bill of exceptions

was necessary in this case and that therefore the transcript of the record on appeal should

have been filed within thirty days after the appeal had been perfected. Hence the appeal

should be dismissed in accordance with the provisions of rule III of the rules of the supreme

court. The bill of exceptions was settled by the judge of the lower court on August 17, 1934.

If the appellant was entitled to take a bill of exceptions in this case, the transcript of the

record on appeal was filed within the time required by the rule after the settlement of the bill

of exceptions.

Was appellant entitled to take a bill of exceptions in order to present to this court the errors

claimed to have been committed by the lower court in striking its amended complaint anddismissing the action as to respondent? She insists that a bill of exceptions was unnecessary

and improper because the errors claimed appeared upon the face of the judgment roll. It is

true that such errors need not be incorporated in a bill of exceptions. Miller v. Walser, 42

Nev. 497, 181 P. 437. It is also true that a copy of the judgment striking the amended

complaint and dismissing the action filed by the clerk pursuant to section 8829 N. C. L.

became a part of the judgment roll. All of the judgment roll in this case is incorporated in the

bill of exceptions. But there are some papers included in the bill of exceptions which are not a

part of the judgment roll. Among these is the notice of motion to strike from the files the first

amended complaint. It was upon this motion that the judgment striking the DPHQGHG

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amended complaint and dismissing the action as to respondent was rendered. This being so,

we are not prepared to say that it was not the part of a careful attorney to bring the motion and

notice thereof into the record on appeal by means of a bill of exceptions.



It is ordered that all of the motions made by respondent be and they are hereby denied.

On Petition for Rehearing

May 31, 1935.

Per Curiam:

Rehearing denied

____________

ÐÐÐÐ56 Nev. 12, 12 (1935) George v. GeorgeÐÐÐÐ

GEORGE v. GEORGE

No. 3082

March 4, 1935. 41 P. (2d) 1059.

1. Divorce.Living apart by spouses for period of more than five consecutive years, without cohabitation prior to

filing of complaint, is, in discretion of trial court, a ground for divorce (Stats. 1931, c. 111).

2. Divorce.Trial court in exercise of discretion to grant divorce to spouses living apart for more than five

consecutive years next prior to filing of complaint can consider nothing but facts presented in evidence

on trial (Stats. 1931, c. 111).

3. Divorce.Discretion which trial court exercises in granting divorce to spouses living apart for more than five

consecutive years next prior to filing of complaint depends not so much upon comparative rectitude of

conduct of spouses as upon probability of their being able to live together in such a manner as to be for

their best interest and the interest of society (Stats. 1931, c. 111).

4. Divorce.Where spouses had lived apart for more than five consecutive years next prior to filing of complaint,

trial court held authorized to grant divorce to husband, notwithstanding separate maintenance

proceedings in another state indicated that husband had been adjudged to be guilty of extreme cruelty

toward wife who was without fault (Stats. 1931, c. 111).


Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.

Action by Elie George against Katherine George. From an adverse judgment and order

denying a motion for new trial, defendant appeals. Affirmed.



Platt & Sinai and Sidney W . Robinson, for Appellant:

It is our contention that if the legislature had intended a decree of divorce to be rendered in

favor of any person establishing five consecutive years of separation without cohabitation it

would have so stated, and specifically would not have incorporated in the 1931 statute the

provision that such decree might be granted by the court “at its discretion.” We are irresistiblydrawn to the conclusion, therefore, that the legislature did not intend such a ground for

divorce to entitle any person, as a matter of right, to a decree of divorce solely upon proof of

five consecutive years of separation without cohabitation. In Nevada, as in Rhode Island, the

court is vested with judicial discretion. This court has so held in the case of Herrick v.

Herrick, 55 Nev. 59, 25 P. (2d) 378, wherein it is said: “The discretion given the court is a

legal discretion, the exercise of which must be considered and determined in the light of all of

the facts of a particular case.” What could this court have meant by such language other than

that the trial court should have before it, as a basis for the exercise of that judicial discretion,

all of the facts pertaining to the marital difficulties of the parties?

Once the court finds the existence of five consecutive years of separation without

cohabitation it has found that it has jurisdiction of a subject matter of the suit, and nothingmore. It must thereupon take testimony relative to the facts and circumstances giving rise to

said separation period, in order that it may be in a position to exercise its judicial discretion in

the granting or denying of a decree of divorce to the party relying upon five years of

separation as a ground for divorce. Smith v. Smith (R.I.), 172 Atl. 323; Dever v. 'HYHU5

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Dever (R. I.), 146 Atl. 478; Guillot v. Guillot (R. I.), 106 Atl. 801.In the case at bar, since there is no testimony whatsoever which would present to the court

all of the facts and circumstances giving rise to the five years separation period between

appellant and respondent, there is such a complete failure of proof upon the part of

respondent as will prevent the court from exercising its judicial discretion in favor of

respondent. This is particularly so in view of the fact that the only testimony whatsoever

before the trial court relating to the marital relationship of the parties is the testimony

introduced by respondent upon cross-examination, in the form of the exemplified copies of

the proceedings had in the State of Ohio, which conclusively established that respondent had

treated appellant with extreme cruelty. No extenuating circumstances, no conduct of a

recriminatory nature has in any way been introduced by respondent to offset the force andeffect of the findings of said Ohio judgment in this particular. Consequently, the only matter

upon which the trial court could exercise its discretion is evidence conclusively favorable to

appellant's position to the effect that respondent should have been denied relief.

Morgan & Lougaris and Geo. A. Bartlett, for Respondent:

The fact that the parties lived together only a little over two months, and have lived apart

for more than five years, is a strong circumstance and sufficient proof that there is no prospect



of reconciliation. Dever v. Dever, 146 Atl. 478; Smith v. Smith, 172 Atl. 323; McKenna v.

McKenna, 166 Atl. 822. Clearly it has become what the Rhode Island courts term a mere

“legal tie” and a “marital status which is ostensible rather than real,” and clearly within the

rule of those cases, requiring that such a marriage should be dissolved in the interest of both

parties and society. No children are involved, all property rights have been settled, the parties

are still in early middle age, they OLYHGWRJHWKHUOHVVWKDQWZRDQGRQHKDOIPRQWKVWK HUH ZDVPXFKELWWHUILJKWLQJDQGXQKDSSLQHVVGXULQJWKLVVKRUWWLPHWKHUHZDVPXFKELWWHU OLWLJDWLRQWKHUHDIWHUWKHUHZDVQRUHFRQFLOLDWLRQGXULQJWKHVWDWXWRU\SHULRGDOORZHGWKHP LQZKLFKWRJHWWRJHWKHUDQGWKHUHLVQRSURVSHFWRIDQ\UHHVWDEOLVKPHQWRIWKHPDULWDO

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lived together less than two and one-half months, there was much bitter fighting and

unhappiness during this short time, there was much bitter litigation thereafter, there was no

reconciliation during the statutory period allowed them in which to get together, and there isno prospect of any reestablishment of the marital relation.

Counsel contend that the phrase “all the facts” means all the facts of the marital

difficulties. Obviously, what the court meant in the Herrick case was all the facts before the

court, because it said in that case that the wife did not testify. It is hardly reasonable to

assume that the husband rehashed all the testimony of all the former litigation between those

parties, or that he testified to all of the marital difficulties of the parties.

Counsel for appellant pleaded the Ohio separate maintenance decree as res adjudicata in

this case, notwithstanding the holding of the then new and much-discussed Herrick case to

the contrary. They say respondent should have testified to extenuating circumstances to offset

the effect of that Ohio decree, yet they say the question has already been determined and theyadmit, as pointed out in the cases cited by them, that the question of whose fault it is, or the

wrongdoings of the parties, or recriminatory defenses, are not the controlling facts in cases of

this kind.

The opinion of the trial court shows that the court did take into consideration the vital facts

of this case, did have in mind the policy of the law as settled by the cases cited, and did

decide this case in conformity with the spirit of the law and the will of the legislature, and,

therefore, did not abuse the discretion vested in it.

OPINION

By the Court, Coleman, J.:Respondent instituted suit against appellant to obtain a decree dissolving the bonds of

matrimony. Appellant has appealed from an adverse judgment and from the order denying her

motion for a new trial.

1. The cause of action alleged in the complaint is that SODLQWLIIDQGGHIHQGDQWIRUD SHULRGRIPRUHWKDQILYHFRQVHFXWLYH\HDUVQH[WSULRUWRWKHILOLQJRIWKHFRPSODLQWKDG

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plaintiff and defendant, for a period of more than five consecutive years next prior to the

filing of the complaint, had lived apart continuously without cohabitation. Such living apart

is, in the discretion of the court, a ground for divorce. Stats. 1931, c. 111, p. 180; Herrick v.Herrick, 55 Nev. 59, 25 P. (2d) 378, 379.

Appellant urges two grounds for a reversal, which are stated in appellant's opening brief as

follows: “The first of which is that respondent, upon the trial of said cause, did not introduce

sufficient or any testimony upon the basis of which the trial court could exercise the judicial

discretion with which it is vested by the 1931 divorce statute. The second proposition is that

in view of the testimony introduced upon the trial, the judgment of the lower court granting to

respondent a decree of divorce amounts to an abuse of judicial discretion with which said trial

court is vested.”

If we correctly interpret the briefs and oral argument of counsel for appellant, it is their

theory that the trial court, in the exercise of the discretion imposed upon it, must first satisfyitself that all evidence which might be produced as to the marital conduct of the spouses must

be presented for its consideration, and from it alone determine, in its discretion, which of the

parties was the greatest offender. Counsel may say this is an exaggerated conception of their

position, but we think it is justified by the following language in the brief: “In the case at bar,

since there is no testimony whatsoever which would present to the court all of the facts and

circumstances giving rise to the five years separation period between appellant and

respondent, there is such a complete failure of proof upon the part of respondent as will

prevent the court from exercising its judicial discretion in favor of respondent.”

Counsel seem to base their contention upon the following statement in the Herrick

opinion, above cited: “The discretion given the court is a legal discretion the exercise of

which must be considered and determined in the light of all of the facts of a particular case.”

Of course, the court, in using the expression “all of WKHIDFWVRIDSDUWLFXODUFDVH´PHDQW DOORIWKHIDFWVVKRZQLQHYLGHQFHDQGQRWIDFWVQRWWHVWLILHGWRDQGZKLFKPD\RUPD\QRW

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the facts of a particular case,” meant all of the facts shown in evidence, and not facts not

testified to and which may or may not exist. This is obviously correct, from the statement in

the case itself, for the court observed in its opinion in that case that the wife offered notestimony in her own behalf.

2. It is clear that a trial court in the exercise of its discretion can consider nothing but the

facts presented in evidence in the case on trial. In the instant case there is evidence, in the

form of evidence taken and other proceedings had between these parties in a separate

maintenance suit instituted by appellant against respondent in Ohio, from which it appears

that the respondent herein was adjudged to have been guilty of extreme cruelty toward



appellant, and that she was without fault.

There was certainly sufficient evidence before the lower court to enable it to exercise the

judicial discretion necessary to determine the question involved. The real question for us to

determine is whether or not it abused its discretion in granting a divorce to the respondent. To

arrive at a correct conclusion in this connection involves the determination of a question not

only of great importance to the parties but to society, and we approach its consideration witha due regard to the importance of our conclusion. We think, however, that our task is greatly

lessened because of the statements made by us in Herrick v. Herrick, supra. In that case we

said: “The legislative concept embodied in the statute is that when the conduct of parties in

living apart over a long lapse of time without cohabitation has made it probable that they

cannot live together in happiness, the best interest of the parties and of the state will be

promoted by a divorce.”

We think we could safely determine the point solely upon the statement just quoted, and

the authorities cited in the opinion mentioned. However, since the rendition of that opinion

the supreme court of Rhode Island, in applying a statute similar to ours, in Smith v. Smith,

172 A. 323, 324, said: “It is evident that the FRQMXJDOOLIHDQGWKHIDPLO\OLIHRIWKHSDUWLHV

DUHSHUPDQHQWO\GLVUXSWHG


conjugal life and the family life of the parties are permanently disrupted. There is no

inclination for and no prospect of a reconciliation. Nothing is left of the marriage relation but

the legal tie. Respondent contends that, regardless of these facts, petitioner should be

punished for his misconduct by a refusal of the trial justice to dissolve the marriage. If it

appeared that there was any advantage to the family or to the state in continuing the marital

status, the divorce might well be denied. But no such advantage is apparent. On the contrary,it is plain that to compel the parties to continue in their present status would be prejudicial to

the parties and to their children. Such being the situation, we are of the opinion that there was

no abuse of judicial discretion by the trial justice in granting the petitioner's prayer for

divorce.”

In the Herrick case, supra, we observed: “The statute is very plain. It does not in terms

require that a party should be without fault, and we do not think that such limitation may be

inferred from it.” In that opinion we quoted approvingly from Guillot v. Guillot, 42 R. I. 230,

106 A. 801, as follows: “In other words, the granting of a divorce under this statute does not

depend upon the previous conduct of the petitioning party. It is easy to conceive that the trial

court under the circumstances of some particular case, might find it for the best interests of both parties and of society that a divorce should be decreed irrespective of the earlier

behavior of the petitioner.”

3, 4. From these quotations it is clear that the discretion which the trial court is called upon

to exercise depends not so much upon the comparative rectitude of conduct of the spouses as

upon the probability of their being able to live together in such a manner as to be for their

best interest and the best interest of society. In the instant case there was ample evidence to

sustain the conclusion reached by the trial court; hence the judgment and order should be



affirmed.

It is so ordered.

____________

ÐÐÐÐ56 Nev. 19, 19 (1935) Hard v. Depaoli et al.ÐÐÐÐ

HARD v. DEPAOLI et al.

No. 3101

March 4, 1935. 41 P. (2d) 1054.

1. Constitutional Law.All acts of legislature are presumed valid until contrary is clearly established.

2. Constitutional Law.Legislature's authority to pass laws is unlimited, except as restricted by federal constitution and laws

enacted pursuant thereto or state constitution.

3. Statutes.Law adopting law of another state is presumed to have been enacted in light of previous construction

of adopted law by supreme court of latter state.

4. Statutes.Construction of another state's statute, adopted by law of this state, by supreme court of former state

before passage of latter law, is very persuasive, though not conclusive, in construction of adopting statute.

5. Schools and School Districts.School districts have no inherent right to vote bonds or negotiate loans, but must derive such right

from statute and substantially comply therewith (Comp. Laws 1929, secs. 5725-5749, 5836-5848; Stats.

1933, c. 95; Const. art. 11, sec. 2).6. Schools and School Districts.

Statutory requirements that majority of owners of taxable realty in school district and their spouses, as

well as majority of other qualified electors, approve district bond issue at election, held not beyond

legislature's power, unreasonable, or unjust (Stats. 1933, c. 95).

7. Schools and School Districts.Section of constitution requiring provision by law for county registration of electors' names and

ascertainment of persons entitled to vote held inapplicable to school district bond elections and not in

conflict with statute requiring that majority of owners of taxable realty in district and their spouses

express approval of bond issue (Stats. 1933, c. 95; Const. art. 2, sec. 6).

8. Schools and School Districts.

Statute requiring that majority of owners of taxable realty in school district and their spouses expressapproval of district bond issue at election held not in conflict with or prohibited by constitutional

provisions as to persons entitled to vote on questions submitted at elections of officers (Stats. 1933, c. 95;

Const. art. 2, sec. 1).

9. Constitutional Law.Sections of constitution as to distribution of legislative, executive, and judicial powers of state

government and vesting of legislative authority in legislature held not violated by act UHTXLULQJWKDW

PDMRULW\RIRZQHUVRIWD[DEOHUHDOW\DSSURYHLVVXDQFHRIVWDWHRUPXQLFLSDOERQGVDW HOHFWLRQ6WDWV




requiring that majority of owners of taxable realty approve issuance of state or municipal bonds at

election (Stats. 1933, c. 95; Const. art. 3, sec. 1; art. 4, sec. 1).10. Statutes.

Statute requiring that majority of electors owning realty and their spouses, as well as majority of other

electors, approve issuance of bonds by state or municipality held not invalid as local or special law

prohibited by constitution (Stats. 1933, c. 95; Const. art. 4, secs. 20, 21).

11. Municipal Corporations—Statutes.Statute requiring approval of state or municipal bond issues or loans by majority of real property

owners and their spouses held not obnoxious to section of constitution prohibiting special acts relating

to corporate powers, except for municipal purposes, and requiring legislature to restrict power of cities

and towns to borrow money and contract debts (Stats. 1933, c. 95; Const. art. 8, secs. 1, 8).

12. Schools and School Districts.Constitutional provision that plurality of votes at elections shall constitute choice held inapplicable to

school bond election under statute requiring approval of bond issue by majority of real estate owners

and their spouses (Stats. 1933, c. 95; Const. art. 15, sec. 14).

13. Schools and School Districts.School district bond election, provided for by statute, held not prohibited, but authorized, by section

of constitution reserving power of referendum to electors of municipalities as to municipal legislation

(Stats. 1933, c. 95; Const. art. 19, sec. 3).

Original Proceeding in mandamus by Giles C. Hard to compel M. P. Depaoli, president,

and others, as clerk and member of the board of trustees of Wadsworth school district No. 11,

to proceed with the sale of school bonds. Peremptory writ granted.

Painter, Withers & Edwards, for Relator:

Chapter 95, Stats. 1933, p. 116, does not deny the right to vote, nor does it enlarge upon,

or modify, constitutional qualifications, but only provides a method for registering views of

two classes of the electorate. 20 C.J. 75, n. 30, citing: Valverde v. Shattuck (Colo.), 34 P.

947; Setterlun v. Kane (Ore.), 87 P. 763; Hanna v. Young (Mo.), 35 Atl. 674; State v. Hansen

(Neb.), 117 N. W. 412.

This court has already determined that a provision in a city charter that electors must be

taxpayers is FRQVWLWXWLRQDO


constitutional. Carville v. McBride, 45 Nev. 305, 202 P. 802.

The word “electors” is not used in its general or comprehensive sense, but in its restricted

political sense, meaning public elections for the choice of public officers, and public

questions of a generally public nature.

It is manifest that some restrictions must be placed upon the phrases “all citizens,” “all



officers,” and “all questions” as used in art. II, sec. 1, of the Nevada constitution, else every

person having the qualifications therein prescribed might insist upon voting at every election,

private as well as public, and thus interfere with affairs of others in which he has no interest

or concern. Valverde v. Shattuck, supra.

Sec. 147 of art. XI provides that the legislature shall provide for a uniform system of

common schools; and necessarily this carries with it the power to provide for the creation of school districts, appointments or elections of school officials, the necessary finances to

maintain such schools, and who, within the constitutional requirements, and in what

particular way such persons entitled to vote shall express their choice.

The only restrictions placed upon the legislature by the constitution of the United States

apply to race, color, and previous condition of servitude; and by the constitution of this state

to persons under the age of 21 years, those persons not within the residential requirements,

persons convicted of treason or felony whose civil rights have not been restored, and idiots

and insane persons. Sec. 1, art. II, Constitution of Nevada.

It being within the power of the legislature to deny the right of citizens to vote on

questions of a local proprietory character, who are not owners or the spouses of owners of

real property of the municipality, it must follow that the legislature possesses the authority toprovide that both owners and nonowners of real property may vote on issues of this character

by registering the separate views of both classes, as provided in chapter 95, Stats. 1933.


Melvin E. Jepson and A. P. Johnson, for respondents:

The constitutional qualifications of an elector are set forth in art. II of our constitution,

which prescribes age and residence, requires freedom from conviction of treason or felony,

and excludes idiots and insane persons. No property qualifications are required. It will benoted that the constitutional qualifications entitle an elector to vote for all officers that now or

hereafter may be elected by the people, and upon all questions submitted to the electors at

such election.

It will be seen from sec. 6 of art. II of our constitution that it grants to the legislature the

power to compel registration of voters who may be entitled to the right, and also grants the

legislature the right to prescribe rules or oaths as may be deemed necessary as a test of

electoral qualifications. However, it does not grant to the legislature the power to add to,

detract from or modify the qualifications of an elector as defined in the constitution.

A number of cases have held that constitutional provisions fixing the qualifications of

electors at “all elections” or at “any election” apply only to the election of officers providedby the constitution. Within the rule it has been held that the legislature may be competent to

prescribe the qualifications of voters at school elections or municipal elections. R. C. L., vol.

9, p. 1025. In the instant case, however, the Nevada constitution fixes the qualifications of

electors entitled to vote for “all officers and upon all questions submitted to the electors at

such election.” The present case is therefore distinguishable.

The general rule is that the legislature can neither add to nor detract from the qualifications

of voters prescribed in the constitution. Davies v. McKeeby, 5 Nev. 369; Clayton v. Harris, 7



Nev. 64; Livesay v. Litchfield (Ore.), 83 P. 142, 114 Am. St. Rep. 920; People v. Canady, 73

N. C. 198, 21 Am. Rep. 465; State v. Superior Court of Kings County (Wash.), 193 P. 226;

State v. Edwards (W.Va.), 122 S. E. 272; 20 C. J. 75; 56 C. J. 604; People v. English (Ill.), 29

N. E. 678, /5$


15 L. R. A. 131; Coffin v. Board of Election Comrs. (Mich.), 56 N. W. 567, 21 L. R. A. 662.

Similar questions have been raised by the passage of acts prescribing property

qualifications for voters upon bond issues in drainage districts, giving the owner of property a

certain number of votes based upon the amount of land owned by him in the district. In such a

case in Idaho, the court held that a statute fixing a property qualification for electors was

unconstitutional. Ferbrache v. Drainage Dist. No. 5, 44 L. R. A. (N. S.) 540.

OPINION

By the Court, Hawkins, District Judge:

This is an original proceeding in mandamus to compel respondents to proceed with the

sale of school bonds, in an amount of $17,000, of Wadsworth school district No. 11, Washoe

County, Nevada, for the purpose of obtaining money with which to construct an addition to

its high school building, install a heating system therein, and make alterations and repairs to

said building, in conformity with the resolution of said school district authorizing the

issuance of said bonds, passed, adopted, and approved by the board of trustees of said school

district on December 13, 1934.

The matter is before the court upon the petition of relator, Giles C. Hard, and the answer of

respondents, M. P. Depaoli, president; W. C. Ceresola, clerk; and Joseph Garaventa, memberof the board of trustees of Wadsworth school district No. 11, Washoe County, Nevada.

It is alleged in the petition, and admitted by the answer, that relator is, and at all times

mentioned in the petition was, a citizen, resident, and taxpayer of Wadsworth school district

No. 11, Washoe County, Nevada; that Wadsworth school district No. 11 is a school district

duly formed on the 7th day of June, 1869, and has all the powers which are now or whichPD\KHUHDIWHUEHFRQIHUUHGXSRQVFKRROGLVWULFWVE\WKHODZVRIWKH6WDWHRI1HYDGDDQG

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may hereafter be conferred upon school districts by the laws of the State of Nevada, and

particularly that certain act approved March 20, 1911 (Nevada Compiled Laws, secs. 5725 to

5749, and secs. 5836 to 5848); that said school district has complied with all laws and

statutes pertaining to its organization and existence, and now is and at all times in said

petition mentioned was a body politic within the said county of Washoe, State of Nevada; that

M. P. Depaoli, W. J. Ceresola, and Joseph Garaventa now are, and at all times in said petition



mentioned were, the duly elected, qualified, and acting members of the board of trustees of

said school district, the said M. P. Depaoli being president and the said W. J. Ceresola clerk

of said board; that in conformity with the provisions of section 5837 Nevada Compiled Laws,

the board of trustees of said school district, on the 1st day of November, 1934, at a special

meeting, passed a resolution declaring it necessary to incur indebtedness by issuing

negotiable coupon bonds of said district in the sum of $17,000, and caused to be executed acertificate of determination, which was duly entered in the records of said school district; that

thereafter on said day the said board, by resolution duly made and entered on the records of

said district, resolved that the question of contracting such bonded indebtedness be submitted

to the duly qualified electors of said district at a special election to be held in conformity with

chapter 95, Statutes of Nevada 1933, and did by said resolution provide the statutory

machinery for holding said election; that in accordance with the statutes of this state, said

resolutions, and as required by chapter 95, Statutes of Nevada 1933, a special election was

held for the purpose of voting upon the resolution authorizing the issuance of said bonds; that

said resolution was duly passed at said election; that thereafter, and in accordance with the

statutes of Nevada, at a special meeting held on the 13th day of December, 1934, the board of

trustees of said district passed a resolution providing for the issuance of said bonds, thelevying of a special tax for the payment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thereof, the publishing and posting of notices calling for bidders for the purchase of said

bonds, the form of such notice, when the bids would be considered by said board, for the

manner of submission of said bids, for the rejection of any and all of said bids by the said

board, that a notice of sale of said bonds be mailed at least three weeks prior to January 7,

1935, to the state board of finance, and for other matters in relation to the issuance and sale of said bonds; that in conformity with such resolution notice of sale of said bonds was duly

published as required by law in the Reno Evening Gazette, was duly posted by the clerk of

said board of trustees in four public places in said school district, and mailed, as required by

law; that all of said proceedings of the said board of trustees were in strict accordance with all

statutes and laws of the State of Nevada governing and controlling in such matters, and that

said election was called, noticed, and held in conformity with the provisions of chapter 95,

Statutes of 1933.



It also further appears from the pleadings that under the statutes of Nevada, as set forth in

Nevada Compiled Laws, sec. 5839, and chapter 95, Statutes of 1933, it is mandatory that the

board of school trustees shall, in the event the official determination of the election upon a

bond issue is “for the bonds,” as soon as practicable proceed to the sale and issuance of said

bonds. But notwithstanding said statutes, the board of school trustees, at a special meeting

held on the 5th day of January, 1935, passed a resolution refusing to proceed further with thesale of said bonds because of legal advice that the procedure taken for the issuance and sale of

said bonds under the provisions of said chapter 95, Statutes of 1933, was unconstitutional,

and by reason thereof no one would purchase the said bonds. It also further appears from the

answer that unless required by this court respondents will proceed no further with the sale of

said bonds or the construction of said contemplated improvements.

Respondents contend that chapter 95, Statutes of LVXQFRQVWLWXWLRQDOEHFDXVHLWLV LQFRQIOLFWZLWKDQGYLRODWHVWKHSURYLVLRQVRIVHFWLRQVDQGDUWLFOHRIWKH1HYDGD

FRQVWLWXWLRQ


1933, is unconstitutional because it is in conflict with and violates the provisions of sections

1 and 6, article 2, of the Nevada constitution.

1, 2. This court has heretofore frequently held that all acts passed by the legislature are

presumed to be valid until the contrary is clearly established, and we begin consideration of

the act now before the court with that presumption in mind. The authority of the legislature to

pass such laws as it considers advisable is unlimited, except as restricted by the constitution

of the United States and federal laws enacted pursuant thereto, or by our state constitution.

It is not contended in this proceeding that the act now before the court conflicts with any

provision of the constitution of the United States or is prohibited by federal law; hence thepresumption that there is no such conflict will prevail. Thus it is only necessary to determine

whether chapter 95, Statues of 1933, is in conflict with the provisions of the constitution of

Nevada as contained in sections 1 and 6, article 2, therein. Chapter 95, Statutes of 1933,

provides, in section 2 thereof, that: “Whenever the State of Nevada, or any municipality

therein, proposes to issue bonds, or provide for loans, in any amount within the limit of

indebtedness authorized by the constitution, the proposal for such bond issue or loan shall be

submitted at a general or special election called for that purpose, to the electors of the state or

the municipality involved who are not real property owners or the spouses of real property

owners, and also to the electors thereof who are the owners of real property or the spouses of

real estate property owners, as shown by the assessment roll of some one or more of thecounties in the state, or the spouses of such real property owners in the manner hereinafter set

forth.”

The act further provides that at such elections two ballot boxes must be provided, one of

which shall be designated as ballot box A and the other ballot box B; that two sets of ballots,

one of which shall be printed RQZKLWHSDSHUDQGWKHRWKHURQFRORUHGSDSHUFRQWDLQLQJ WKHVDPHVWDWHPHQWVVKDOOEHSURYLGHGIRUWKHXVHRIWKHYRWHUVDWVDLGHOHFWLRQWKDW HYHU\FLWL]HQRIWKH8QLWHG6WDWHVRIWKHDJHRIWZHQW\RQH\HDUVDQGXSZDUGZKRKDV UHVLGHGLQWKHV WDWHVL[PRQWKVDQGLQWKHFRXQW\WKLUW\GD\VQH[WSUHFHGLQJVXFKHOHFWLRQ



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on white paper and the other on colored paper, containing the same statements, shall be

provided for the use of the voters at said election; that every citizen of the United States of the

age of twenty-one years and upward who has resided in the state six months and in the county

thirty days next preceding such election, and who has complied with the registration laws of

this state shall be entitled to vote at said election; that if such elector is not the owner of or the

spouse of the owner of real property assessed on the assessment roll of any county of the

state, in the case of a state bond election, or on the assessment roll of the municipality, in the

case of a municipal bond election, he shall be furnished a ballot printed on white paper, and

the ballots of such persons shall be deposited in ballot box A; that if said elector is the owner

or the spouse of the owner of real property so assessed, he shall be furnished a ballot printed

on colored paper, and the ballots of all such persons shall be deposited in ballot box B. It is

further provided that at the close of the election the ballots in the two boxes be separately

canvassed and the results certified to the authorities proposing the bond issue, and if a

majority of the ballots in each box is in favor of the issuance of the bonds then such bonds

shall have carried, and the proper officers shall proceed to print, execute, advertise, and sell

said bonds; but if the majority of ballots in either of said boxes is against the issuance of saidbonds the proposal to issue said bonds shall have failed and no further proceedings be had

toward the printing, execution, advertisement, or sale of said bonds.

Section 1 of article 2 of the constitution of the State of Nevada is as follows: “All citizens

of the United States (not laboring under the disabilities named in this constitution) of the age

of twenty-one years and upwards, who shall have actually, and not constructively, resided in

the state six months, and in the district or county thirty days next preceding any election, shall

be entitled to vote for all officers that now or hereafter may be HOHFWHGE\WKHSHRSOHDQG XSRQDOOTXHVWLRQVVXEPLWWHGWRWKHHOHFWRUVDWVXFKHOHFWLRQSURYLGHG


elected by the people, and upon all questions submitted to the electors at such election;

provided. * * * There shall be no denial of the elective franchise at any election on account of

sex.”

That section was interpreted in the case of In re Walker River Irr. Dist., 44 Nev. 321, 195

P. 327, 332. And it was therein stated: “We are of the opinion that it is only at elections



which the constitution itself requires to be held, and officers to be voted for as named in the

instrument or created by the legislature as officers necessary in exercising the functions of the

government in running the machinery of the state, that section 1, art. 2, applies.”

It was also held in the same case that the term “elections,” embraced in section 1, article 2,

was there used in its restrictive political sense—as election of public officers and to

determine the will of the people upon questions in which they have a public as distinguishedfrom an immediate private interest.

The same section was again considered by this court in the case of Carville v. McBride, 45

Nev. 305, 202 P. 802, where one question determined was whether section 77 of the charter

of the city of Elko (Stats. 1917, p. 171), limiting those entitled to vote in all cases of elections

held upon the question of passing upon the issuing of bonds, was in derogation of section 1,

article 2, of the Nevada constitution. In that case the court held those provisions of the charter

were not in derogation of said section of the constitution, because such section only

controlled the city in the exercise of its legislative, public, and governmental powers, in the

exercise of which it is a sovereignty, and did not apply to or control it in the exercise of its

proprietary, quasi private powers; the exercise of such powers being governed by the same

rules that govern a private individual or corporation.Section 24 of article 1 and section 1 of article 2 of the constitution of the State of

California are similar in their wording and legal effect to the provisions of section 1, article 2,

of the constitution of Nevada. The VXSUHPHFRXUWRIWKH6WDWHRI&DOLIRUQLDLQWKHFDVHVRI :KHHOHUY+HUEHUW&DO


supreme court of the State of California, in the cases of Wheeler v. Herbert, 152 Cal. 224, 92

P. 353, and Tarpey v. McClure, 190 Cal. 593, 213 P. 983, interpreted the meaning of saidsections of the California constitution, and held they refer only to the qualification of electors

entitling them to vote at the ordinary elections, local and general, held in the course of the

usual functions of civil government.

Chapter 95, Nevada Statutes of 1933, is almost a verbatim copy of chapter 52, Session

Laws 1931, of the State of Wyoming, which was before the supreme court of that state in the

case of State ex rel. Voiles v. Johnson County High School, reported in 43 Wyo. 494, 5 P.

(2d) 255, 262. It was contended in the Wyoming case the law was in conflict with several

provisions contained in the constitution of that state, one of which, to wit, section 2 of article

6, so far as material in this proceeding, is the same as section 1, article 2, of the constitution

of Nevada.Section 4 of article 16 of the constitution of Wyoming directs: “No debt in excess of the

taxes for the current year shall, in any manner, be created by any county or subdivision

thereof, or any city, town or village, or any subdivision thereof in the State of Wyoming,

unless the proposition to create such debt shall have been submitted to a vote of the people

thereof and by them approved.”

In determining whether the act (chapter 52, Laws 1931) was inimical to said section 2,

article 6, or contravened the requirements of section 4, article 16, of the constitution, the



supreme court of Wyoming used the following language: “In the light of the authorities

hereinabove cited, we see no limitation either express or implied placed upon the power of

the legislature of this state by the provisions of either section 2 of article 6, or section 4 of

article 16, of our constitution, to enact such a law as we have seen chapter 52, Laws of

Wyoming 1931, to be.”

3. Differences between the Nevada law before this court and the Wyoming law construedin the case just referred to are that the words “or provide for loans,” IRXQGDWOLQHRIVHFWLRQ RIWKH1HYDGDVWDWXWHDUHQRWLQWKH:\RPLQJVWDWXWHDQGWKHZRUGV³RZQHUVRIUHDO SURSHUW\´DUHXVHGWKURXJKRXWWKH1HYDGDODZLQOLHXRIWKHZRUGV³SURSHUW\RZQHUV´

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found at line 2 of section 2 of the Nevada statute are not in the Wyoming statute, and the

words “owners of real property” are used throughout the Nevada law in lieu of the words

“property owners” found in the Wyoming law. In view of the great similarity between thestatutes and the dates of their respective enactments, it is probable our law was an adoption of

the Wyoming law; which raises the presumption that the legislature of Nevada enacted our

law in the light of the construction that had been placed upon it by the supreme court of

Wyoming in the Voiles-Johnson County High School case, decided more than a year prior to

the passage of the Nevada law. O'Brien v. Board of Commissioners, 41 Nev. 90, 91, 167 P.

1007.

4. The construction given to the Wyoming statute by the supreme court of that state, in the

case hereinbefore cited, while not conclusive on this court is nevertheless very persuasive.

Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49.

5. While it is required under the provisions of section 2, article 11, of the constitution thatthe legislature provide for a uniform system of common schools, by which a school shall be

established and maintained in each school district at least six months in every year, yet such

school districts are creatures of legislative acts. By those acts they are brought into existence

as political subdivisions of the state, formed for the purpose of aiding in the exercise of that

governmental function which relates to the education of children; their functions defined, and

such powers as they may exercise conferred upon them. They have no inherent right to vote

bonds or negotiate loans; such right must be derived from statute, and in voting such bonds or

providing for such loans, the statute must be substantially complied with.

In the exercise of the authority granted such school districts by law to submit a proposal to

issue bonds to a vote of the qualified electors within said municipality at an election to be

held for that purpose, and the voting upon said proposal by said qualified electors, the schoolGLVWULFWLVQRWFRQGXFWLQJDQHOHFWLRQZKLFKWKHFRQVWLWXWLRQLWVHOIUHTXLUHVWREHKHOGRU YRWLQJIRURIILFHUVQDPHGLQWKHFRQVWLWXWLRQRUFUHDWHGE\WKHOHJLVODWXUHDVRIILFHUV QHFHVVDU\LQH[HUFLVLQJIXQFWLRQVRIWKHJR YHUQPHQWLQUXQQLQJWKHPDFKLQHU\RIWKH

VWDWH




district is not conducting an election which the constitution itself requires to be held, or

voting for officers named in the constitution, or created by the legislature as officers

necessary in exercising functions of the government in running the machinery of the state.

6. The effect of voting and issuing bonds by such district is to increase the taxes upon all

assessable property of the district for the payment of the bonds and interest. The legislature

has considered it advisable to require that before such added burden shall be assumed, a

majority of the owners of and the spouses of the owners of real property subject to taxation

within such district shall express their approval thereof, as well as must a majority of all other

qualified electors in said district. We are not prepared to hold such requirement exceeded the

powers of the legislature, or that its division of the qualified electors into the classes,

provided by the law, is unreasonable or unjust; every qualified voter being granted the

privilege of expressing his wishes upon the question, and each vote cast having equal weight

in determining the will of those voting upon the question.

7. Section 6 of article 2 of the constitution has no application under the facts as shown by

the pleadings in this proceeding. However, there is no conflict between the provisions of thatsection and the law under consideration.

8. We are of the opinion that chapter 95, Statutes of 1933 of the State of Nevada, is not in

conflict with or prohibited by either section 1 or section 6 of article 2 of the constitution of

this state.

That conclusion disposes of all the grounds relied upon by respondents in their answer and

argument before the court at the hearing on the return to the alternative writ, but because the

constitutionality of the law has heretofore been assailed in former proceedings before this

court, upon other grounds, and may hereafter again be questioned, it is deemed advisable to

consider whether such law is prohibited by any provision of our constitution.


9. A consideration of section 1 of article 3 and section 1 of article 4 of the constitution

discloses that neither of those sections was violated by the passage of the act now before the

court.

10. Sections 20 and 21 of article 4 of the constitution will be considered together. Section

20 prohibits the passage by the legislature of local or special laws in certain enumerated

cases, and section 21 provides that in all the cases enumerated in section 20, as well as in all

other cases where a general law can be made applicable, all laws shall be general and of

uniform operation throughout the state.

If the act under consideration may be considered of a class wherein the legislature is

prohibited by section 20 from passing local or special laws, such act is neither a “local” nor a

“special” law, because it operates over the whole state, and equally upon all within the classes

into which it divides the qualified electors. State v. Irwin, 5 Nev. 111; State ex rel. Voiles v.

Johnson County High School, supra.

11. For the foregoing reasons, and upon the authority of the cases heretofore cited, we are



of the opinion such law is not obnoxious to, nor is it prohibited by section 1 or section 8 of

article 8 of the constitution.

12. Section 14 of article 15 of the constitution provides: “A plurality of votes given at an

election by the people shall constitute a choice, where not otherwise provided by this

constitution.”

Section 14 of article 15 of our constitution complements section 1, article 2, thereof, anddoes not apply to elections such as are required by chapter 95, Statutes of 1933.

13. Section 3 of article 19 of the constitution reserves to the people the right, at their

option, to approve or reject at the polls any act, part of an act, or measure passed by the

legislature; which power of referendum is also reserved to the electors of each county and

municipality as to all local, special, and municipal legislation in or for said respective

counties or municipalities.

Chapter 95, Statutes of 1933, merely goes further WKDQWKHUHIHUHQGXPSURYLVLRQRIWKDW VHFWLRQRIWKHFRQVWLWXWLRQDQGSURYLGHVWKDWLQWKHPDWWHURIWKHLVVXDQFHRIERQGVDV ZHOODVLQQHJRWLDWLQJORDQVDUHIHUHQGXPPXVWEHKHOGXSRQWKHDFWRUGLQDQFHRU

UHVROXWLRQDXWKRUL]LQJWKHLVVXDQFHRIVDLGERQGVRUWKHQHJRWLDWLRQRIVDLGORDQV


than the referendum provision of that section of the constitution, and provides that in the

matter of the issuance of bonds, as well as in negotiating loans, a referendum must be held

upon the act, ordinance, or resolution authorizing the issuance of said bonds or the

negotiation of said loans.

Not only is such referendum not prohibited by said section of the constitution, but is

expressly authorized therein.

Since the legislature may enact any law not prohibited by the constitution of the UnitedStates and federal laws passed in conformity therewith, or by the constitution of this state,

and there is no provision in either prohibiting such a law as chapter 95, Statutes of 1933, that

act is constitutional.

Petitioner is entitled to a peremptory writ of mandate directed to respondents and requiring

them to proceed as prayed for in his petition.

Let the writ issue as prayed for.

Ducker, C. J.: I concur.

Coleman, J.: I concur in the order.

Note—Taber, J., being disqualified from participating in this opinion, the Governor

designated Hon L. O. Hawkins, Judge of the Sixth Judicial District Court, to sit in his place.

____________

ÐÐÐÐ56 Nev. 34, 34 (1935) Wells v. Justice's CourtÐÐÐÐ



WELLS v. JUSTICE'S COURT OF LAS VEGAS

TOWNSHIP, CLARK COUNTY, Et. Al.

No. 3088

April 3, 1935. 42 P. (2d) 1008.

1. Justices of the Peace.Justice of peace was without power to quash execution and refuse to issue another on default

judgment rendered by him, where no motion to set aside default judgment within time allowed by statute

was made, though notice that motion would be made was given but not served on plaintiff (Comp. Laws

1929, secs. 8909, 9289).

2. Evidence—Mandamus.In mandamus proceeding to compel justice of peace to issue execution on default judgment, statement

that motion to set aside judgment was pending held conclusion of law and insufficient to warrant

judgment for defendant, where evidence showed that merely a notice had been given that motion would

be made to set aside judgment, that notice had not been served on party obtaining judgment, and that nomotion in fact was ever made ( Comp. Laws 1929, secs. 8909, 9289).

Appeal from Eighth Judicial District Court, Clark County; J. Emmet Walsh, Judge,

presiding.

Mandamus proceeding by Maude Wells against the Justice's Court of Las Vegas

Township, county of Clark, State of Nevada, and Frank M. Ryan, as Justice of the Peace of

Las Vegas Township, county of Clark, State of Nevada, to compel issuance of execution.

From a judgment for defendants, plaintiff appeals. Reversed, with directions.

Louis Cohen, for Petitioner:The allegation that defendant filed his notice of motion within ten days does not authorize

his contention that “said motion in said action is still pending and has not been heard or

disposed of,” for the reason that the filing of a notice of motion is not the making of a motion.

Section 8909 N. C. L. 1929, among other things, defines a motion as an application for an

order made to the court. People v. Ah Sam, 41 Cal. 645; Spencer v. Branham, 41 P. 1095.

The justice's court, being an inferior court of limited MXULVGLFWLRQLVFRQWUROOHGE\VHFWLRQ 1&/


jurisdiction, is controlled by section 9289 N. C. L. Abrogast v. Superior Court, 162 P. 909;

Bowman v. Bowman, 47 Nev. 207.

Defendant's answer is devoid of any allegation that defendant Simon moved the justice's court

to set aside the default within ten days from the notice of the entry of said default judgment.

The failure of an allegation to this effect makes defendant's answer an insufficient defense to

plaintiff's petition. Simon v. Justice's Court, 59 P. 296; Colthurst v. Justice's Court, 279 P.



812; Winter v. Fritzpatrick, 35 Cal. 269; Haywards v. Pimentel, 40 P. 545; 15 Cal. Jur., sec.

34, nn. 1 and 16, pp. 497, 498; 35 C. J. 668, sec. 295, n. 94; Abrogast v. Superior Court,

supra; Hubbard v. Superior Court, 98 P. 394; Fast v. Young, 126 P. 854; 24 Cyc. 597, n. 58;

Herrlich v. McDonald, 22 P. 299; Bettencourt v. Superior Court, 163 P. 682.

Green & Lunsford, for Respondents:The justice of the peace contended and the trial court found that the motion to vacate and

set aside the default judgment was still pending and had not been determined. This fact was

admitted by the pleadings, and contradicts the allegation that plaintiff has not a plain, speedy,

and adequate remedy in the ordinary course of law.

Section 9289 N. C. L. plainly and unequivocally requires notice of the entry of a default

judgment in a justice's court before the time commences to run against an application for a

vacation of the default judgment. This means a notice in writing. Wilde v. Wilde, 2 Nev. 306;

46 C. J. sec. 54, p. 555; 18 Cal. Jur. sec. 8, p. 653. Therefore it is quite clear that there was yet

a question to be determined by the justice of the peace as to whether any notice of the entry of

judgment had been given, and as to when the time for the hearing of a motion to vacate the

default would expire. As we glean the record, no notice has yet been given of the entry of judgment, and the trial FRXUWZDVDPSO\MXVWLILHGLQGHFLGLQJWKDWWKHDSSHOODQWKDGDSODLQ VSHHG\DQGDGHTXDWHUHPHG\DWODZE\JLYLQJWKHUHTXLUHGQRWLFHR IHQWU\RIMXGJPHQWRU FDOOLQJIRUKHDULQJWKHPRWLRQILOHGLQWKHMXVWLFHVFRXUW


court was amply justified in deciding that the appellant had a plain, speedy, and adequate

remedy at law by giving the required notice of entry of judgment or calling for hearing themotion filed in the justice's court.

OPINION

Per Curiam:

This appeal is from a judgment rendered in a mandamus proceeding and from an order

denying a new trial.

It appears from the petition for the writ that appellant instituted an action in the justice's

court of Las Vegas township and obtained a judgment by default on the 12th day of May,

1933. An execution was issued and levied on certain property. By order of the justice's court

the execution was quashed and vacated, and the property levied on released. The execution

was returned unsatisfied. Appellant requested the justice to issue another execution, which he

refused to do.

It appears from the respondents' answer to the petition that the defendant on the 18th day

of May, 1933, filed in the action in the justice's court his notice of motion for an order to

vacate and set aside the default judgment. This allegation is not controverted in any way. It is

stated in the answer that the motion has not been disposed of, and is still pending. The justice



of the peace, on the hearing in the district court, testified to the same effect, and there was no

denial of this testimony. The district court, being of the opinion that the request for a writ of

execution was premature because the motion to set aside the default was still pending in the

justice's court, denied appellant's application for the writ of mandamus.

We think the court should have granted the application. The record discloses that no

motion was made to set aside the default judgment within the time required by the statute, orat all. This was alleged in the petition, and it was not denied in the answer.


The notice of the motion filed on the 18th day of May was, of course, not a motion. In fact,

the notice appearing in the record states that, “the defendant * * * will, on Thursday, the 25th

day of May, 1933, at 2 o'clock P.M. of said day, move the above entitled court at the office of

the Justice of the Peace of Las Vegas Township, City of Las Vegas, Clark County, Nevada,

for an order to vacate and set aside the default judgment entered in said cause on the 12th dayof May, 1933, upon the following grounds, etc.” Nothing was done by the defendant pursuant

to this notice, except that he filed his affidavit therewith. It does not appear that the notice

was served on the appellant. At the hearing in the district court the justice of the peace was

asked the following question: “Does the docket or the written notice show, or is it shown by

any other manner, that the notice of motion was ever served upon plaintiff or her attorney?”

He answered: “No.”

The question is governed by section 9289 N. C. L. The pertinent part of the section reads:

“* * * The court may also, on such terms as may be just, and on payment of costs, relieve a

party from a judgment by default taken against him by his mistake, inadvertence, surprise, or

excusable neglect, but the application for such relief must be made within ten days after

notice of the entry of the judgment and upon an affidavit showing good cause therefor.”An application for an order is a motion. Section 8909 N. C. L.

1, 2. As no motion was made within the time specified in said section 9289, the justice's

court at the expiration of that time was without jurisdiction to grant the relief provided by the

statute. The statute is susceptible of no other construction. This is the view taken by the

courts in California where the statute is identical with ours. Spencer v. Branham, 109 Cal.

336, 41 P. 1095; Colthurst v. Justice's Court of Vallejo Tp. in and for Solano County et al.,

100 Cal. App. 146, 279 P. 812. The statements that a motion to set aside the default judgment

was pending in the justice's court DUHPHUHO\FRQFOXVLRQVRIODZDQGHUURQHRXV


are merely conclusions of law, and erroneous. A different rule prevails in the district court.

Bowman v. Bowman, 47 Nev. 207-213, 217 P. 1102. But it will be seen that the statute

applicable therein (section 8640 N. C. L.) is different from said section 9289 N. C. L. There is

no express requirement in the former that the application for relief be made within the time



limited, as is the case in the latter statute.

The judgment and order of the district court are reversed, and the court is directed to issue

the permanent writ of mandamus requiring the said justice's court to issue another execution

as requested by appellant.

____________

ÐÐÐÐ56 Nev. 38, 38 (1935) State v. District CourtÐÐÐÐ

STATE Ex Rel. UNITED STATES LINES COMPANY v. SECOND JUDICIAL DISTRICT

COURT OF NEVADA Et Al.

No. 3104

April 5, 1935. 43 P. (2d) 173.

1. Taxation.Situs of a ship, unless it has acquired actual situs elsewhere, for purposes of taxation is at domicile of

owner, notwithstanding ship may never have been in state of such domicile, may not, by reason of

draught and depth of water, be able to go to any place in such state, and may be registered or enrolled in

different state.

2. Taxation.Corporation, for purposes of taxation as between two or more states, has its domicile in state where it

was created.

3. Taxation.Steamships of corporation whose domicile was in Nevada, which were never within state, but which

had no actual situs anywhere, for purposes of taxation held “in this state,” “within this state,” and “in the

state” within constitution and statutes providing that all property in this state belonging to corporationshall be subject to taxation, that all property within this state shall be subject to taxation, and that ad

valorem tax shall be levied for state purposes on all taxable property in the state except such as is

exempted from taxation (Comp. Laws 1929, sec. 6418; Stats. 1933, c. 195; Const. art. 8, sec. 2).

4. Taxation.Steamships of corporation whose domicile was in Nevada, which had no actual situs anywhere and

which never were ZLWKLQVWDWHKHOGVXEMHFWWRWD[DWLRQDVDJDLQVWFRQWHQWLRQWKDW

VWDWXWHSURYLGLQJWKDWDOOVWHDPHUVQDYLJDWLQJRUXVHGXSRQZDWHUVRIDQ\ULYHURU ODNHZLWKLQVWDW HRUKDYLQJJHQHUDOGHSRWRUWHUPLQXVZLWKLQVWDWHVKDOOEHVXEMHFW WRWD[DWLRQH[HPSWHGVWHDPVKLSVIURPWD[DWLRQ&RPS


within state, held subject to taxation, as against contention that statute providing that all steamers

navigating or used upon waters of any river or lake within state or having general depot or terminus within

state shall be subject to taxation, exempted steamships from taxation (Comp. Laws 1929, secs. 6418, 6419,

6473; Stats. 1933, c. 195; Const. art. 8, sec. 2, and art. 10).

5. Taxation.Tangible personalty which has actual situs should be taxed where it is located, where it receives



protection of law, and where expense of such protection must be incurred, but where such property has no

actual situs anywhere, it should be taxed in domicile of its owner.

Original proceeding in prohibition by the state, on the relation of the United States Lines

Company, against the Second Judicial District Court of the State of Nevada, Honorable

Thomas F. Moran, as Judge thereof, and another. Writ dismissed.

Thatcher & Woodburn, for Petitioner:

The plain, ordinary meaning of the language used in sec. 2 of art. VIII of the Nevada

constitution is that the intentions of the framers of the constitution were the taxation of

personal property of corporations when such personal property was within the State of

Nevada. The provision is a limitation upon the legislature and a constitutional declaration that

personal property tax on corporations and individuals is limited to such property as is within

the state. State v. Hallock, 14 Nev. 202.

An examination of the Nevada statutes clearly shows the legislative intent to be the same as

that of the framers of the constitution. The same limitation has been carried throughout all of

the Nevada legislation relating to taxes on personal property. Sec. 6418 N. C. L.; sec. 6421 N.C. L. An investigation of each act of the legislature fixing the state tax levy for each biennial

period since 1865 will disclose that the state tax levy in each instance was “directed to be

collected for state purposes, upon all taxable property in the state.”

The Nevada legislature has expressly legislated on the subject of taxation of vessels. Sec.

6419 N. C. L. This statute, even if standing alone and unsupported E\WKHVDPHOHJLVODWLYH LQWHQWH[SUHVVHGLQWKHFRQVWLWXWLRQDODQGVWDWXWRU\SURYLVLRQVKHUHWRIRUHPHQWLRQHG ZRXOGQHJDWLYHDQ\LQWHQWRIWKHOHJLVO DWXUHWKDWWKHWD[LQJRIILFLDOVKDYHDXWKRULW\WRWD[ VWHDPVKLSVYHVVHOVRUZDWHUFUDIWHQJDJHGH[FOXVLYHO\LQIRUHLJQFRPPHUFHRQWKH

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by the same legislative intent expressed in the constitutional and statutory provisions

heretofore mentioned, would negative any intent of the legislature that the taxing officials

have authority to tax steamships, vessels or watercraft engaged exclusively in foreign

commerce on the Atlantic Ocean. Not by the widest stretch of imagination can the Atlantic

Ocean be said to be a river or lake within this state. No fiction of law can change this

language. Under the familiar rule of statutory construction, “expressio unius est exclusio

alterius,” steamships, vessels and watercraft not navigating or using the rivers or lakes of this

state or having a general depot or terminus within this state would not be taxable. Ex ParteArascada, 44 Nev. 30, 189 P. 619.

Search the statutes of Nevada as you may, and no single act of the legislature can be found

which authorizes or directs or permits, either by clear language or by implication, the taxing

of any property except that which lies or is within the boundaries of the state.

The supreme court of this state has heretofore held expressly contrary to the theory here

urged by the respondents, in the case of State v. Shaw, 21 Nev. 222, 29 P. 321. That the Shaw

case is sound and based upon common sense and reason is supported by the express holdings



of courts of other states having similar statutory or constitutional provisions. The People ex

rel. Hoyt v. The Commissioners of Taxes, 23 N. Y. Rep. 224; Converse v. Northern Pacific

Ry. Co. 2 Fed. (2d) 959; Guaranty Trust Co. of New York v. State, 172 N. E. 674; Robinson

v. Longley, 18 Nev. 71, 1 P. 377.

Gray Mashburn, Attorney-General; W. T. Mathews and Julian Thruston, DeputyAttorneys-General; Ernest S. Brown, District Attorney; and Nash P. Morgan, Deputy District

Attorney, for Respondents:

The corporate company, petitioner herein, is a resident of and domiciled in the State of

Nevada. 7 R. C. L. 139, sec. 110.

The maxim “mobilia sequuntur personam” is the basic SULQFLSOHRQZKLFKWD[DWLRQRI SHUVRQDOSURSHUW\UHVWV


principle on which taxation of personal property rests. 26 R. C. L. 273, sec. 241; State v.

Gehner, 59 A. L. R. 1057 and note. The maxim is the well-established rule of the common

law, and the situs of personal property of every description, wherever it was actually kept or

located, was held to be at the domicile of the owner and the property was subject to the

jurisdiction of the owner's sovereign. 26 R. C. L., sec. 241, supra. This maxim is particularly

applicable to ocean-going steamships that ply the high seas, because there such ships do not

and cannot acquire the fixity of location so necessary to establish a different situs than that of

the owner for the purposes of taxation.

The petitioner herein is a Nevada corporation. Its domicile belongs exclusively to this

state. It must dwell in Nevada, the place of its creation. It admits ownership of the steamships

in question here, and, further, it admits that such ships are engaged in foreign commerce, anddoes not claim they have acquired a taxable situs anywhere else than Nevada. This being the

status of the petitioner and the ships in question, there can be no doubt as to the application of

the maxim above mentioned as the rule of law governing this case. Cooley on Taxation (4th

ed.), sec. 453.

Under section 6418 N. C. L., as amended Stats. 1931, p. 217, petitioner's ships are clearly

taxable, if a statute were needed. None of the exemptions specified are applicable to

petitioner. And if an exemption is claimed by petitioner, it must present a clear case of

exemption and one free from doubt. 17 R. C. L. 522, sec. 42; 27 C. J. 237, sec. 91; Erie Ry.

Co. v. Pennsylvania, 21 L. Ed. 595; Railway Co. v. Philadelphia, 101 U. S. 528; Camas Stage

Co. v. Kozer, 209 P. 99. The burden is on those claiming exemption from taxation to soshow.

We here cite the authorities sustaining the state's right to tax the steamships in question

here. Hays v. Pacific Mail S. S. Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423;

Morgan v. Parham, 16 Wall. 471; Transportation Co. v. Wheeling, 99 U. S. 273; Old

Dominion Steamship Co. v. Virginia, 198 U.S. 299; $\HU/RUG&RY.HQWXFN\866RXWKHUQ3DFLILF&RY.HQWXFN\867DFRPD2ULHQWDO66&RY




Ayer & Lord Co. v. Kentucky, 202 U. S. 409; Southern Pacific Co. v. Kentucky, 222 U. S.

63; Tacoma Oriental S. S. Co. v. Tallant, 51 Fed. (2d) 359.

Whether petitioner's ships ever come within the state, or can ever come within it, is whollybeside the question, and therefore there is no necessity of such a corporation, or any person in

like circumstances, providing or maintaining a depot or terminus within the state in order for

the state to tax its ocean-going steamships. This is made most clear in the authorities

hereinbefore cited.

OPINION

By the Court, Taber, J.:

This is an original proceeding in prohibition.

Petitioner, United States Lines Company, is now, and at the time of the assessment andother acts complained of in its petition was, a Nevada corporation, and the owner of certain

ocean-going steamships, registered by petitioner at the port of New York in compliance with

the United States shipping laws, and operated by petitioner exclusively in foreign commerce

between the city of New York and certain foreign countries. None of said steamships have

ever navigated or been used upon the waters of any river or lake within the State of Nevada,

or had a general depot or terminus therein. Petitioner's principal office and place of business

in Nevada is at Reno, and its resident agent has his office there.

In September, 1934, the assessor of Washoe County made and entered an assessment for

taxation purposes on said steamships, assessed them to petitioner and caused said assessment

to be entered on the assessment rolls of Washoe County. Thereafter the taxing officers of said

county levied a tax on petitioner based on said assessment, and respondent Frank Campbell,

as assessor, demanded payment of the tax from petitioner, who refused to pay it. Petitioner

protested to the Nevada tax commission, but was given no relief.


Respondent Campbell, assessor as aforesaid, appeared before respondent court and district

judge in January, 1935, and made the affidavit provided for in section 6473 N. C. L.

Thereupon citation issued, directing petitioner to appear on the 22d day of January, 1935, and

answer under oath concerning its property. Unless prohibited by this court, respondent court

will order petitioner to turn over to the assessor sufficient goods, chattels, or effects to satisfy

said tax, and will proceed against petitioner as for contempt of court if it fail to comply with

such order. No claim is made by petitioner that said steamships or any of them are taxed

elsewhere.

No question is raised as to the propriety of relief by writ of prohibition in case the court

finds the property in question not subject to the tax claimed, so the only question before the



court is whether said tax is valid.

Petitioner maintains that said tax is void, and bases its contention chiefly upon the

following grounds: (1) the legislature has not seen fit to authorize the taxing of the property in

question; (2) even if the legislature had attempted to authorize the taxing of these ships, such

legislation would be invalid as contravening article 8, section 2, of the state constitution,

which restricts the taxing power to property “in this state”; (3) in defining the term “personalproperty,” as used in the general revenue act, section 6419 N. C. L., includes in its

enumeration “all steamers, vessels and watercraft of every kind and name navigating or used

upon the waters of any river or lake within this state, or having a general depot or terminus

within this state,” and makes no further or other mention of steamers, vessels, ships, or other

watercraft; (4) the maxim “mobilia sequuntur personam” has no place in the revenue law of

this state, except as to certain kinds of personal property not involved in this case; (5) it has

been the uniform legislative and administrative policy of this state to tax only such tangible

personal property as has an actual situs within its territorial boundaries.

In defense of the validity of the tax sought to be LPSRVHGXSRQSHWLWLRQHUVVWHDPVKLSVE\ :DVKRH&RXQW\UHVSRQGHQWUHO\FKLHIO\XSRQWKHIROORZLQJDUJXPHQWV3HWLWLRQHUV

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imposed upon petitioner's steamships by Washoe County, respondent rely chiefly upon the

following arguments: (1) Petitioner's steamships are to be taxed in Nevada because theirowner is domiciled in this state, and they have not acquired an actual situs elsewhere; (2) the

words “in this state” as used in article 8, section 2, of the state constitution mean subject to

taxation by this state; the same meaning is to be attributed to the words “within this state” as

used in section 6418 N. C. L., and to the words “in the state” as used in the state tax levy act

for the years 1933 and 1934 (Statutes of Nevada 1933, c. 195, p. 340); (3) petitioner's

steamships come within the words “All property of every kind and nature whatsoever, * * *”

as used in section 6418 N. C. L., and the words “all chattels of every kind and description”

and the words “and all property of whatever kind or nature not included in the term ‘real

estate,' as said term is defined in this act,” as used in section 6419 N.C.L.; (4) under article 10

and article 8, section 2, of the state constitution, the legislature could not lawfully exemptpetitioner's steamships from taxation in Nevada, even were it to attempt to do so by express

legislative enactment.

Article 8, section 2, of the Constitution of Nevada reads as follows: “All real property and

possessory rights to the same, as well as personal property in this state, belonging to

corporations now existing or hereafter created, shall be subject to taxation the same as

property of individuals; provided, that the property of corporations formed for municipal,

charitable, religious, or educational purposes may be exempted by law.”



Article 10 of the state constitution: “The legislature shall provide by law for a uniform and

equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a

just valuation for taxation of all property, real, personal and possessory, except mines and

mining claims, when not patented, the proceeds alone of which shall be assessed and taxed,

and, when patented, each patented mine shall be assessed at not less than five hundred dollars

($500) except when one KXQGUHGGROODUVLQODERUKDVEHHQDFWXDOO\SHUIRUPHGRQ VXFKSDWHQWHGPLQHGXULQJWKH\HDULQDGGLWLRQWRWKHWD[XSRQWKHQHWSURFHHG VDQG DOVRH[FHSWLQJVXFKSURSHUW\DVPD\EHH[HPSWHGE\ODZIRUPXQLFLSDOHGXFDWLRQDO

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hundred dollars ($100) in labor has been actually performed on such patented mine during the

year, in addition to the tax upon the net proceeds; and, also excepting such property as may be

exempted by law for municipal, educational, literary, scientific or other charitable purposes.”

Section 6418 Nevada Compiled Laws 1929, provides that “All property of every kind andnature whatsoever, within this state, shall be subject to taxation except:” (exemptions listed).

Section 6419 N. C. L. , being section 6 of the general revenue act, provides in part as

follows: “The term ‘personal property,' whenever used in this act, shall be deemed and taken

to mean, and it is hereby declared to mean and include * * * all goods, wares and

merchandise, all chattels of every kind and description, * * * all steamers, vessels and

watercraft of every kind and name navigating or used upon the waters of any river or lake

within this state, or having a general depot or terminus within this state; * * * and all property

of whatever kind or nature not included in the term ‘real estate,' as said term is defined in this

act.”

Petitioner directs attention to section 6421 N. C. L. which provides in part that within acertain period each year the county assessor “shall ascertain, by diligent inquiry and

examination, all property in his county, real and personal, subject to taxation,” and the names

of the owners thereof.

Petitioner further points out that the act fixing the state tax levy for 1933 and 1934

(Statutes of Nevada 1933, c. 195, p. 340) levies an ad valorem tax, for each of said years, for

state purposes, on all taxable property “in the state,” except such property as is by law

exempted from taxation.

1. Unless it has acquired an actual situs elsewhere, the situs of a ship, for purposes of

taxation, is at the domicile of the owner, notwithstanding it may never have been in the state

of such domicile, may not, by reason of draught and depth of water, be able to go to any place

in such state, and may be registered or enrolled LQDG LIIHUHQWVWDWH


in a different state. Southern Pacific Co. v. Commonwealth of Kentucky, 222 U. S. 63, 32 S.

Ct. 13, 18, 56 L. Ed. 96; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, 26 S. Ct. 679, 50



L. Ed. 1082; Tacoma Oriental S. S. Co. v. Tallant (D. C.), 51 F. (2d) 359; Cooley on Taxation

(4th ed.), vol. 2, sec. 453; 61 C. J. 225; 26 R. C. L. 281; Stimson, Jurisdiction and Power of

Taxation, p. 9; Note 29 L. R. A. (N. S.) 105.

2. “As between two or more states, for purposes of taxation, a corporation has its domicile

in the state where it was created. As to this there is no contention.” Fletcher Cyc. Corp., vol.

14, sec. 6946. To the same effect see Cooley, sec. 484.Petitioner's domicile being in Washoe County, Nevada, and there being no contention that

its steamships, for the purposes of taxation, have any actual situs anywhere, it is clear that

they are taxable in this state unless the constitution or statutes of Nevada render inapplicable

the general rule enunciated above. We are thus brought to a consideration of the main

question in this case, namely, whether petitioner's steamships, for the purposes of taxation,

are in this state, or within this state, as those terms are used in the constitution and statutes

hereinbefore quoted.

In the case of Pacific Cold Storage Co. v. Pierce County, 85 Wash. 626, 149 P. 34, 35, the

court, having under consideration the meaning of the words “in the state,” as used in the

constitution of the State of Washington, said: “In construing the meaning of this clause of the

constitution, it must be remembered that it was used with reference to the taxing power of thestate, that it is a term of inclusion, rather than a term of exclusion, and that it was meant to

secure the taxation of all property subject to taxation by the state, and not to define or mark

limits within which exemption from taxation might be legal or illegal. In other words, when

the constitution said that ‘all property in the state * * * shall be taxed,' it meant to say that all

property subject to taxation by the state shall be taxed, regardless of the question whether or

not the SURSHUW\FRXOGEHVDLGWREHWHFKQLFDOO\ZLWKLQRUKDYHDQDFWXDOVLWXVZLWKLQWKH

VWDWH´


property could be said to be technically within, or have an actual situs within the state.”

In the case of Olson v. City and County of San Francisco, 148 Cal. 80, 82 P. 850, 852, 2 L.

R. A. (N. S.) 197, 113 Am. St. Rep. 191, 7 Ann. Cas. 443, a sea-going vessel engaged in

commerce on the high seas, temporarily registered in the State of Washington and not

permanently registered at San Francisco, but whose managing owner resided at San

Francisco, was held by the supreme court of California to be taxable in that state,

notwithstanding it had never been in the waters of California. The court, after pointing out

that this vessel had no actual situs in any state, said: “Under the well-settled law, this vessel

had its legal situs in the city and county of San Francisco on the first Monday of March, 1901,and for the purpose of taxation was at that time within that city and county. It was ‘property

in the state,' within the meaning of those words as used in section 1, art. 13, of the

constitution, relating to revenue and taxation, and was by such provision required to be taxed

here.”

People ex rel. Astor Trust Co. v. State Tax Commission, 174 App. Div. 320, 160 N. Y. S.

854, 856, quotes section 260 of the New York Tax Law in part, as follows: “In determining

the separate values of the property covered by any such mortgage within and without the



state, for the purpose of ascertaining the proportion of the principal indebtedness secured by

the mortgage which is taxable under this article, the state board of tax commissioners shall

consider only the value of the tangible property covered by each mortgage. * * *”

In that case it appears that a New York corporation engaged, as one branch of its business,

in menhaden fishing along the Atlantic Coast. All of its vessels were enrolled and licensed

under the laws of the United States to carry on the fisheries, and each of the certificates of enrollment was issued and recorded at the port of Greenport, N.Y., which port was designated

in each certificate as the “home port.” Ninety percent of the fishing ZDVGRQHRIIWKHFRDVWV RIVWDWHVRWKHUWKDQ1HZ<RUNWZHOYHRIWKHFRPSDQ\VYHVVHOVZHUHHQJDJHGH[FOXVLYHO\ LQILVKLQJRXWVLGHRIWKHVWDWHRI1HZ<RUNDQGDOOLWVYHVVHOVZLQWHUHGDW3RUWVPRXWK5,7KHSULQFLSDORIILFHDQ GSODFHRIEXVLQHVVRIWKHFRPSDQ\ZDVLQWKHFRXQW\RI6XIIRON

1<7KHYHVVHOVKDGQRWDFTXLUHGDQDFWXDOVLWXVLQDQ\RWKHUVWDWH


was done off the coasts of states other than New York, twelve of the company's vessels wereengaged exclusively in fishing outside of the state of New York, and all its vessels wintered

at Portsmouth, R. I. The principal office and place of business of the company was in the

county of Suffolk, N.Y. The vessels had not acquired an actual situs in any other state. The

court said: “The taxable situs of a vessel which has no permanent location within another

jurisdiction is the domicile of the owner. Southern Pacific Co. v. Commonwealth of

Kentucky, 222 U. S. 63, 32 S. Ct. 13, 56 L. Ed. 96. The domicile of the owner, as well as the

port of enrollment of the vessels, having been at a place within the State of New York, such

was the situs of the vessels, and they must be held to have been tangible property within the

state, within the intent and meaning of section 260 of the Tax Law.”

Petitioner cites four tax cases holding that such terms as “within this state,” “within thestate,” and “in this state” mean actually and physically situated within the territorial

boundaries of the state. These cases are People ex rel. Hoyt v. Commissioners of Taxes, 23 N.

Y. 224; State v. Harrington, 68 Mont. 1, 217 P. 681, 683; Converse v. Northern Pac. Ry. Co.

(C.C.A.) 2 F. (2d) 959; Guaranty Trust Co. v. State, 36 Ohio App. 45, 172 N. E. 674.

People ex rel. Hoyt v. Commissioners of Taxes, supra, is a New York case decided in

1861. The property sought to be taxed was physically situated and had an actual situs outside

the State of New York. The court itself in that case made it plain that the rule set forth was

intended to apply only to property having an actual situs. On page 240 of 23 N.Y., the court

says: “On the other hand, I have no doubt that ships at sea registered at a port within this state

and consequently having no situs elsewhere are justly taxable to the resident owner.” If

petitioner's steamships had an actual situs outside this state, it would be clear that they couldnot be taxed here, but it is a prerequisite to the taxation RIVXFKSURSHUW\DWLWVDFWXDOVLWXV

WKDWLWKDYHVXFKDVLWXV




of such property at its actual situs that it have such a situs.

State v. Harrington, supra, is also a case where the property sought to be taxed had a situs

in another state. The court stated the question in the following language: “The concrete

question presented is whether the laws of Montana command the assessment of the shares of

stock of a resident of this state, even though they have a business situs in another state.” Here

again we have a case which does not involve the question of taxability of tangible personalproperty situate outside the state of the owner's domicile, but having no situs outside such

state. It is interesting also to note that the court expressly recognizes that under some

circumstances the maxim mobilia sequuntur personam would be applicable in the State of

Montana. This appears from the following statement near the end of the opinion: “Of course,

if the shares of stock in a given instance are kept out of the state for the purpose of evading

taxation, they are not within the rule as to business situs, but are controlled by the maxim

mobilia sequuntur personam, and will be taxed at the domicile of their owner.”

In Converse v. Northern Pac. Ry. Co., supra, the facts are very dissimilar from those in the

case at bar. It is an income tax case, and the property sought to be taxed was the income of

appellee from its interstate as well as its intrastate business. The circuit court of appeals in

that case took pains to point out that in construing the meaning of the expression “within thestate” as used in the income tax law the court should look to the intention of the legislature in

enacting that particular statute. In other words, according to that court, it would not be proper

to arrive at the meaning of such an expression under a particular income tax statute by

referring to its meaning as used in a general revenue act. The court used this language:

“Whenever such terms are used in a statute, they must be construed in accordance with the

intention of the legislature in enacting the particular VWDWXWH´


statute.” Conversely, the meaning of such an expression in an income or inheritance tax

statute would not be controlling determining its meaning in a general tax statute or

constitutional provision relating to general taxes.

Guaranty Trust Co. v. State, supra, is also a case where the facts are very dissimilar from

the instant case. In that case the owner of the property was a nonresident, the property was

money on deposit in an Ohio bank, and the words whose meaning was to be construed were

from an inheritance tax statute.

Petitioner has also placed much reliance upon State v. Shaw, 21 Nev. 222, 29 P. 321, 322,

wherein this court made the following two statements: (a) “Generally, in other revenue

systems, it is provided that personal property shall be taxed where the owner resides, if he bea resident of the state. But, in pursuance of this authority to regulate the matter as it may

please, our legislature has adopted the more equitable rule of taxing it where it is located,

where it receives the protection of the law, and where the expense of such protection must be

incurred.” (b) “As already stated, the fiction that personal property follows the person of the

owner has no place in our revenue law, except as to money, gold-dust, and bullion. All other

property is to be assessed in the county where it belongs. Where it remains permanently in a

county, or only leaves it for a temporary purpose, this fact is conclusive, and it must be taxed



there, and cannot be taxed anywhere else.” In this case there was no question of tangible

personal property outside the state which had no actual situs. The question before the court in

State v. Shaw was, In which of two counties in this state should certain livestock be taxed?

Not one of the foregoing cases cited by petitioner was related to shipping, and, what is

more important, not one of them presented for the court's consideration a case where tangible

personal property belonging to a resident of the state, but being outside the state, had noactual situs.


Petitioner points out that the legislature of this state has always pursued the policy of

taxing only property actually within the state, and that the tax officers have maintained the

same policy. It is argued that this legislative and executive construction, having continued for

so many years, should be given great weight by this court in determining the meaning of the

expressions “within this state,” “within the state,” and “in this state.” But none of thedepartments of the state, so far as we are advised, have until very recently been confronted

with a situation such as is presented by this case. We are dealing here with tangible personal

property outside the state, and not having actual situs anywhere. Any policy that may have

grown up concerning property having an actual situs either within or outside the state cannot

be of much help in a case which presents for consideration an entirely new situation,

involving tangible personal property with not actual situs.

It may be observed here that this court, in Bowman v. Boyd, 21 Nev. 281, 30 P. 823, 825,

quoted in part from Meserve v. Folsom, 62 Vt. 504, 508, 20 A. 926, as follows: “It was the

duty of the plaintiff to have a taxable residence somewhere. Though it is true that a tax

assessment is a proceeding in invitum, and the law which operates to take from a citizen his

property for public purposes is to be strictly construed, nevertheless the taxpayer is under aduty, in view of the protection afforded him by the law, to contribute his just proportion to

support the government under which he lives, and the question of his liability to taxation in a

given locality is to be tried in the light of this fact.” Likewise, in 61 C. J. 511, it is said that

“In general, for purposes of taxation a person must have a domicile or residence somewhere.”

3. We hold that petitioner's steamships, for purposes of taxation, were, at the time of the

assessment and levy complained of, “in this state,” “within this state,” and “in the state” as

those terms are used, respectively, in article 8, section 2, of the state constitution, section1&/DQGFKDSWHU6WDWXWHVRI1HYDGD


6418 N.C.L., and chapter 195, Statutes of Nevada 1933.

4. It remains to be considered whether the language of sections 6418 and 6419 is broad

enough to include petitioner's steamships, particularly in view of the fact that the latter

section, in enumerating various kinds and items of personal property, lists all watercraft



“navigating or used upon the waters of any river or lake within this state, or having a general

depot or terminus within this state.” It is contended on the one hand, under the rule of strict

construction, that such property as plaintiff's steamships is not included in our taxing statutes,

and on the other hand that the words last above quoted from section 6419 N. C. L. operate to

exclude such property under the maxim “expressio unius est exclusio alterius.” We deem it

unnecessary, in considering this argument, to enter into an extended discussion of the rules of statutory construction, because we agree with what was said by Chief Justice Norcross (now

United States district judge for Nevada) in the case of State v. Wells Fargo & Co., 39 Nev.

505, 150 P. 836, 842, wherein, after quoting from the state constitution and general revenue

act, he says, in delivering the opinion of the court: “It is clear from the foregoing excerpts, we

think, that the constitution authorizes and the statute directs that all property of every kind,

character, and nature, not specifically exempted, is subject to taxation. The fact that the

legislature at the time of the adoption of the statute, supra, may not have indulged in the hope

even that property of the appellant company, other than that visible to the naked eye, might be

subject to taxation, nevertheless it used language clearly evincing an intent to cover every

possible contingency and to exclude from the burden of taxation only such property as was

specifically exempted.”Many years earlier, in the case of State v. Carson City Savings Bank, 17 Nev. 146, 30 P.

703, 704, this court likewise said: “Since the constitution declares that all property shall be

taxed except mines and other SURSHUW\IRUFHUWDLQHQXPHUDWHGSXUSRVHVWKHOHJLVODWXUH FDQQRWH[HPSWDQ\WD[DEOHSURSHUW\H[FHSWIRUWKHSXUSRVHVWDWHG´


property for certain enumerated purposes, the legislature cannot exempt any taxable property,

except for the purpose stated.”To the same effect see 61 C. J. 385, and Cooley on the Law of Taxation (4th ed.), secs.

661-663. Some years ago the legislature of the State of Washington attempted, by express

legislative enactment, to exempt certain ships or vessels from taxation. The language of the

statute was as follows: “Provided, that the ships or vessels registered in any custom-house of

the United States within this state, which ships or vessels are used exclusively in trade

between this state and any of the islands, districts, territories, states of the United States, or

foreign countries, shall not be listed for the purpose of or subject to taxation in this state, such

vessels not being deemed property within this state.” (Rem. & Bal. Code, Wash., sec. 9093).

Referring to this statute, the court, in Pacific Cold Storage Co. v. Pierce County, supra,

said:“Manifestly the legislature attempted to exempt from taxation vessels situated as this

vessel is situated and used for the purposes for which it is used, and that the claim of the

appellant to an exemption is sound if it is within the power of the legislature to make the

exemption. It is the contention of the taxing authorities of Pierce County that the legislature is

without such power, and this presents the sole question to be determined upon this appeal.

“It will hardly be denied in the light of our present decisions that the legislature cannot,

under the constitutional provision requiring a uniform and equal rate of taxation on all



property ‘in the state,' lawfully exempt from taxation corporeal personal property having an

intrinsic value and having a situs at some place within the state. * * * So, here, since the

vessel in question has intrinsic value, it cannot be exempted from taxation by the legislature

unless it can be said not to be property ‘in the state,' within the meaning of that clause as used

in the constitution.


“In construing the meaning of this clause of the constitution, it must be remembered that it

was used with reference to the taxing power of the state, that it is a term of inclusion, rather

than a term of exclusion, and that it was meant to secure the taxation of all property subject to

taxation by the state, and not to define or mark limits within which exemption from taxation

might be legal or illegal. In other words, when the constitution said that ‘all property in the

state * * * shall be taxed,' it meant to say that all property subject to taxation by the state shall

be taxed, regardless of the question whether or not the property could be said to be technicallywithin, or have an actual situs within the state. That a vessel situated and used as this vessel is

situated and used would be taxable as property in the state, in the absence of legislative

regulation to the contrary, cannot be gainsaid or questioned. It is so held in all of the cases.

While some confusion has arisen as to the proper place of taxation where the port of registry,

the home port, and the domicile of the owner of the vessel are at different places, no court has

as yet held that such vessels are not subject to taxation at some one of the places. So, here,

since the vessel is subject to taxation by the state, we think the legislature is without power to

exempt it, and we so hold. * * *

“This property is owned by a citizen of the state having its domicile within the state. The

place of the owner's domicile is the registered as well as the home port of the vessel. Its

permanent situs is therefore within the state, and its absence therefrom and stoppageselsewhere are but transient and temporary. Stated in another way, the domicile of the owner

fixes the situs of the vessel where it does not appear that it has acquired an actual situs

elsewhere.”

The tax complained of was and is valid, and these proceedings must therefore be

dismissed. This holding will not result in double taxation, because so long as petitioner is

domiciled in Nevada, the ships in question cannot be taxed elsewhere.


5. Finally, it may be observed that, where tangible personal property has an actual situs,

there is reason for saying, as in State v. Shaw, supra, that it should be taxed “where it is

located, where it receives the protection of the law, and where the expense of such protection

must be incurred.” But where such property has no actual situs anywhere, we have the

situation with which the court was dealing in Southern Pac. Co. v. Kentucky ex rel.

Alexander, supra, when it said: “Take the case in hand. The Southern Pacific Company is a



corporation having much extraordinary power. It only exists and exercises this power by

virtue of the law of Kentucky. By the law of its being it resides in Kentucky, and there

maintains its general office, and there holds its corporate meetings. To say that the protection

which the corporation receives from the state of its origin and domicile affords no basis for

imposing taxes upon tangibles which have not acquired an actual situs under some other

jurisdiction is not supportable upon grounds of either abstract justice or concrete law. What isthe protection accorded these vessels at any of the ports to which they temporarily go for

purpose of business? What protection do they receive from the state or city of New York

other than that accorded to every other ship which visits that port, foreign or domestic, for

repairs, supplies, or other business?”

Writ dismissed.


June 1, 1935.

Per Curiam:

Rehearing denied.

____________

ÐÐÐÐ56 Nev. 56, 56 (1935) Caton et al. v. FrankÐÐÐÐ

CATON Et Al. v. FRANK, Mayor Pro Tem., Et Al.

No. 3108

May 2, 1935. 44 P. (2d) 521.

1. Municipal Corporations.Statute providing for amendment of city charter on petition signed by 60 percent of qualified voters

held not to violate constitutional provision authorizing legislature to permit electors to frame or amend

city charter, which did not require an election (Comp. Laws 1929, sec. 1257, subd. 2; Const. art. 8,

sec. 8).

2. Constitutional Law.Where constitutionality of statute is questioned, every reasonable doubt must be resolved in favor of

statute.3. Municipal Corporations.

Petition reciting that it was signed by 60 percent of “qualified electors” held insufficient to require

adoption of city charter amendment under statute requiring signatures of 60 percent of “qualified voters,”

since terms were not synonymous in view of statute requiring electors to register before they are entitled

to vote (Comp. Laws 1929, sec. 1257, subd. 2; Const. art. 2, secs. 1, 6).

4. Municipal Corporations.Petition reciting that it was signed by 5,834 qualified voters, or 60 percent of total vote cast for office

of justice of the supreme court at last election, held insufficient to require adoption of city charter



amendment, since 60 percent of number of actual qualified voters as shown by official register was

required (Comp. Laws 1929, sec. 1257, subd. 2, sec. 2580).

5. Municipal Corporations.Petition failing to contain signers' places of residence as required by statute held insufficient to

require adoption of city charter amendment (Comp. Laws 1929, sec. 1257, subd. 2).

6. Municipal Corporations.City council is body possessed of but limited and special powers, as are especially granted, and, when

law prescribes mode which council must pursue in exercise of such powers, it excludes all other modes of

procedure.

7. Municipal Corporations.City council could lawfully act on petition to amend city charter only if petition showed that it

contained necessary number of signers who were qualified voters, that petition was exhibited to each of

signers before his signature was affixed thereto, and that one of signers who was a qualified voter swore

that statements therein contained were true to best of his knowledge and belief (Comp. Laws 1929, sec.

1257, subd. 2).

8. Municipal Corporations.Petition containing affidavit of person soliciting signatures which failed to show affiant was a signer

of petition and stated that he believed that signers were “electors” instead of being ³TXDOLILHGYRWHUV´

DVUHTXLUHGE\VWDWXWHKHOGLQVXIILFLHQWWRUHTXLUHDGRSWLRQRIFLW\FKDUWHU DPHQGPHQW&RPS


“qualified voters,” as required by statute, held insufficient to require adoption of city charter amendment

(Comp. Laws 1929, sec. 1257, subd. 2; Const. art. 2, secs. 1, 6).

Original proceeding in mandamus by A. J. Caton and others against Sam Frank, Mayor pro

tempore of the city of Reno, and others, to compel respondents to proceed upon a petition toamend the present charter of the city of Reno. On demurrer to the petition. Demurrer

sustained, alternative writ of mandate dismissed, and peremptory writ of mandate

denied.

C. R. Pugh, for Relator:

Every reasonable presumption is to be made in favor of the act of a legislative body.

Cooley Constitutional Limitations (8th ed.), vol. I, pp. 152, 277, 311, 345, 353, 354, 372;

Riter v. Douglass, 32 Nev. 400; State ex rel. Brewster v. Bently (Kans.), 164 P. 290; State v.

Gerhardt (Ind.), 44 N. E. 473; State ex rel. Clarke v. Irwin, 5 Nev. 111; State v. Kruttschmitt,

4 Nev. 178; Walker v. Cincinnatti, 21 Ohio St. 14; State ex rel Smith v. McLellan (Ind.), 37

N. E. 799; State v. Gee Jon, 46 Nev. 418; Meagher v. Storey Co., 5 Nev. 244; Ex Parte

Rosenblatt, 19 Nev. 439; Quilici v. Strosnider, 34 Nev. 9, 115 P. 177.

Nowhere does article VIII, section 8, of the constitution of Nevada refer, or even infer that

an amendment to a city charter can be had only by an election called for that purpose,

accompanied by a campaign under the Australian ballot system.

Admitting relators used in their petition the expression “qualified electors,” such was an

inadvertence and not intended, which should be quite evident, inasmuch as section 1257 N.



C. L., under which the proceedings in mandamus is brought, does not use the expression

“qualified electors,” but uses the expression “qualified voters,” which said last expression

was intended. Even so, we contend that “qualified voter” is sufficiently pleaded, because

“qualified voter” is included in “qualified elector,” in the light of prevailing authorities. Parus

v. District Court, 42 Nev. 229, 174 P. 706; Cass County Y-RKQVWRQ0R 86

/(G&DUUROO&RXQW\Y6PLWK0LVV86/(G'DY\Y0F1HLOO 103


v. Johnston ( Mo.), 95 U. S. 360, 24 L. Ed. 416; Carroll County v. Smith (Miss.), 111 U. S.

556, 28 L. Ed. 517; Davy v. McNeill (N. M.), 240 P. 482; McQuillin Mun. Corps., vol. 2, sec.

432.

As to a method of determining the sixty percent of the qualified voters, we respectfully

submit that under the prevailing rule of statutory construction the court can and may find the

“intendment” sufficient to look for a method of determining the sixty percent in the act of

1915, chap. 137, or in sec. 2580 N. C. L. (although we do not contend that sec. 1257 N. C. L.

is an initiative measure). We further contend that authority for the enactment of sec. 1257 N.

C. L. is found in art. XVII, sec. 1, of the constitution of the State of Nevada (see Nevada

Constitutional Debates, p. 848), which effectually establishes the right to petition. Gibson v.

Mason, 5 Nev. 283; Wallace v. Mayor of the City of Reno, 27 Nev. 71, 73 P. 528.

The case of State ex rel. Fisler et al. v. Glass et al., 44 Nev. 235, 192 P. 472, holds that the

court will liberally construe a statute with a view towards its intendment. The case further

establishes that chapter 155, Stats. 1917, makes provision for determination of the proportion

of signatures to such a petition.

Le Roy F. Pike, City Attorney of Reno, for Respondents:

The respondents respectfully submit that the petition for a writ of mandamus does not state

facts sufficient to constitute a cause for the issuance of said writ, upon the following grounds:

That subdivision 2 of sec. 1257 N. C. L., upon which relators rely as their authority for the

circulation of and the filing of their pamphlet petitions, and as the basis upon which they filed

this mandamus proceeding, is unconstitutional and void, in that it is squarely in conflict with

sec. 8 of art. VIII of the constitution of the State of Nevada. That said subdivision 2 of sec.

1257 N. C. L. in effect permits the amendment of a city charter by the filing of a petition,

signed by only DSHUFHQWDJHRIWKHTXDOLILHGYRWHUV


a percentage of the qualified voters. Whereas, sec. 8 of art. VIII of the constitution

contemplates the amendment of a charter only by an election called for that purpose, at which

all of “the electors” are permitted to express their choice and views, and in an election

accompanied by a campaign culminating in an expression rendered under the protection and



secrecy of the Australian ballot system.

“Electors,” wherever used in the statute, means persons who have all the qualifications to

vote. Sec. 1, art. II, Constitution of Nevada; Parus v. District Court, 42 Nev. 229, 174 P. 706.

That the constitution intends that the legislature can only permit the electors of any city or

town to frame, adopt, and amend a charter for its own government, or amend any existing

charter, is indicated by the initiative provision of the constitution, sec. 207, art. XIX, whichprovides how the legislature may provide by law for the exercising of the initiative and

referendum powers by counties and municipalities. Here it will be noted that the petition

required is only for the purpose of initiating the law so that it may be voted upon by the

electors. We respectfully contend that by these provisions of the constitution the legislature is

impliedly, if not directly, restricted in providing laws for the framing, adopting, or amending

of a municipal charter, and that it has no authority to authorize any council or commission to

adopt any charter or adopt any amendment to a municipal charter, except one created by a

direct legislative act, or a vote of the electors of the city in question. Birnie et al. v. City of La

Grande et al. (Ore.), 153 P. 415.

That the mandamus petition sets forth that the pamphlet petitions are signed by 5,834

“qualified electors,” and shows further that the relators rely exclusively upon the provisionsof sec. 1257 N. C. L., yet that statute nowhere required the signatures of qualified electors,

but, on the other hand, requires the signatures of sixty percent of the “qualified voters.” In

order that the relators prevail, they must both plead DQGSURYHWKDWVL[W\SHUFHQWRIWKH TXDOLILHGYRWHUVKDYHVLJQHGWKHSDPSKOHWSHWLWLRQV


and prove that sixty percent of the qualified voters have signed the pamphlet petitions. Said

section also fails to state definitely who shall determine the sufficiency and number of signatures required. High's Extraordinary Legal Rem. (3d ed.), pp. 48, 948; Tillitson et al. v.

Frohmiller, 271 P. 967; 43 C. J. 161, sec. 145; Hindman v. Boyd, 42 Wash. 17, 84 P. 609.

If sec. 1257 N. C. L. is constitutional, still it is inoperative by reason of the fact that it is

impossible to arrive at what is sixty percent of the qualified voters or qualified electors,

without some basic standard. Such a standard necessarily is fixed in legislation of this kind.

Dunn v. Lott, 67 Ark. 591, 58 S. W. 375; Parus v. District Court, supra; Hindman v. Boyd,

supra; Othus v. Kozer, 119 Ore. 101, 248 P. 146.

OPINION

By the Court, Dysart, District Judge:

This is an original proceeding in mandamus to compel respondents to proceed upon a

petition signed by a number of the qualified voters of the city of Reno to amend the present

charter of the city of Reno, which would change the present city charter from a charter

providing for a mayor and five city councilmen to a city managerial form of government.

Upon the petition as filed, an alternative writ of mandate was issued out of and under the

seal of this court directing the said respondents to appear and show cause before this court, at



the courtroom thereof, on the 13th day of March, 1935, at 10 o'clock a.m. of said day, why an

order should not be made and why a peremptory writ of mandate should not issue ordering

the said respondents to adopt a resolution of the council of the city of Reno amending the

charter of the said city of Reno, Washoe County, Nevada.

The return day of said writ was, by order of this court, continued until the 15th day of

March, A. D.


1935. Upon the said 15th day of March, 1935, and at the hour of 10 o'clock a .m., the

respondents appeared and, in answer to said petition, filed a demurrer to the petition, but

made no further answer to said petition. The matter was orally argued by respective counsel

and submitted to the court upon briefs for its decision.

Respondent's demurrer to realtors' petition for a writ of mandate alleged, among other

things, the following grounds:(1) That subdivision 2 of section 1257 N. C. L. 1929, the statute upon which relators rely

for their writ of mandate, is unconstitutional and void, in that it is in conflict with section 8 of

article 8 of the constitution of the State of Nevada (section 138 N. C. L. 1929); that said

subdivision of said section 1257 N. C. L. 1929, in effect, permits the amendment of a charter

by the filing of a petition signed by only a percentage of the qualified voters, when said

section 8 of article 8 of the constitution contemplates the amendment of a city charter only by

an election called for that purpose, at which all of the electors are permitted to express their

choice by vote.

(2) That petitioners set forth in their petition for a writ of mandate that the petition was

signed by 5,834 “qualified electors,” when the said subdivision 2 of section 1257 N. C. L.

1929, upon which relators rely, requires such a petition to be signed by sixty percent of the“qualified voters” in order to invoke the powers of the city council of the city of Reno.

(3) That the petition does not state suff icient facts to constitute cause for the issuance of a

writ of mandate.

We will dispose of these questions in the order named.

1. Section 8 of article 8 of the constitution of Nevada provides: “The legislature shall

provide for the organization of cities and towns by general laws and shall restrict their power

of taxation, assessment, borrowing money, contracting debts and loaning their credit, except

for procuring supplies of water; provided, however, that the legislature may, by general laws,

in WKHPDQ QHUDQGWRWKHH[WHQWWKHUHLQSURYLGHGSHUPLWDQGDXWKRUL]HWKHHOHFWRUVRIDQ\

FLW\RUWRZQWRIUDPHDGRSWDQGDPHQGDFKDUWHUIRULWVRZQJRYHUQPHQWRUWRDPHQG DQ\H[LVWLQJFKDUWHURIVXFKFLW\RUWRZQ´


the manner and to the extent therein provided, permit and authorize the electors of any city or

town to frame, adopt and amend a charter for its own government, or to amend any existing



charter of such city or town.”

It will be noted that this provision of the constitution provides that the legislature may, by

general laws, in the manner and to the extent therein provided, permit and authorize the

electors of any city or town to frame, adopt, and amend a charter for its own government, or

to amend any existing charter of such city or town.

Now, let us look to the statute in question, namely, subdivision 2 of an act entitled “AnAct fixing the method by which the charters of incorporated cities or towns may be

amended,” approved March 15, 1927, being subdivision 2 of the said section 1257 N. C. L.

1929, which reads as follows:

“Upon the filing of a verified petition bearing the signatures of not less than 60% of the

qualified voters of the city or town praying for he adoption of any amendment or amendments

fully set forth in such petition and exhibited to each of such signers prior to the signature

being affixed thereto. Said signatures need not all be appended to one paper, but each signer

shall add to his signature his place of residence. One of the signers of each such petition shall

swear that the statements therein made are true to the best of knowledge and belief.

“Upon the filing of any such petition bearing the required number of signatures, duly

verified and setting out therein the amendment or amendments proposed, it shall be the dutyof the governing body of such city or town to adopt such amendment or amendments by

resolution without further proceeding.”

It will be noted that said subdivision 2 provides that a city charter may be amended upon a

petition signed by sixty percent of the qualified voters. It will also be noted that section 8 of

article 8 of the constitution authorizes the legislature, by general laws, to permit the “electors”

of a city not only to amend an existing FKDUWHUEXWWRIUD PHDQGDGRSWDFKDUWHU


charter, but to frame and adopt a charter. It, therefore, clearly appears that the statute in

question is in harmony with the constitution.

We are, therefore, unable to agree with respondents' contention that section 8 of article 8

of the constitution limits the electors of a city to the adoption of any amendment of a charter

to a majority of the vote cast at an election, but this court is of the opinion, and so holds, that

the legislature may, under the powers granted by the said section 8 of article 8, provide any

reasonable and uniform method whereby the qualified voters of a city may, by a majority,

express a desire to amend such charter, as by a proper petition signed by sixty percent of the

qualified voters, as is provided by said subdivision 2 of said section 1257 N. C. L. 1929,

which, we hold, is not in conflict with said provision of the constitution.2. It is a well-settled rule that, where the constitutionality of a statute is questioned, every

reasonable doubt must be resolved in favor of the statute. In the case of State v. Gee Jon et

al., 46 Nev. 418, 211 P. 676, 677, 217 p. 587, 30 A. L. R. 1443, this court held: “Every

enactment of the legislature must be deemed in harmony with the constitutional provisions

until the contrary clearly appears.”

3. We come now to a consideration of the second question raised by respondents, namely,

that the petition recites that the petition to amend the charter was signed by 5,834 qualified



electors, when the statute provides that such petition must bear the signatures of “not less

than 60 % of the qualified voters.”

We are of the opinion that the petitioners failed to bring themselves within the terms of

subdivision 2 of said section 1257 N. C. L. 1929, which provides that sixty percent of the

qualified voters may file a verified petition praying for the adoption of amendments to a city

charter. We are of this view because the petition herein alleges that sixty percent of the“qualified electors” signed such petition, instead of alleging that sixty percent of the

“qualified voters” signed said petition.


Our state constitution, section 1 of article 2, provides how and by whom a franchise may

be enjoyed, and reads as follows: “All citizens of the United States (not laboring under the

disabilities named in this constitution) of the age of twenty-one years and upwards, who shall

have actually, and not constructively, resided in the state six months, and in the district orcounty thirty days next preceding any election, shall be entitled to vote for all officers that

now or hereafter may be elected by the people, and upon all questions submitted to the

electors at such election; provided, that no person who has been or may be convicted of

treason or felony in any state or territory of the United States, unless restored to civil rights,

and no idiot or insane person shall be entitled to the privilege of an elector. There shall be no

denial of the elective franchise at any election on account of sex.”

Counsel for petitioners herein contends that the use of the words “qualified electors” in the

petition, instead of “qualified voters,” was an inadvertence, and not intended. Counsel further

says: “Even so, we contend ‘qualified voter' is sufficiently pleaded, because ‘qualified voter'

is included in ‘qualified elector.'” To sustain the contention, our attention is directed to the

case of Parus v. District Court, 42 Nev. 229, 174 P. 706, 4 A. L. R. 140, and other authorities.We are of the opinion that “qualified elector” and “qualified voter” are not necessarily

synonymous.

Whether “qualified elector,” as used in the constitution, and “qualified voter,” as that term

is used in section 1257 N. C. L. 1929, are synonymous depends entirely upon the intention of

the legislature in using the term “qualified voter.”

In our opinion the case of Parus v. District Court, supra, does not sustain the contention

made for it. The only language in that opinion, which it is contended sustains the contention,

is the next to the last paragraph on page 235 of 42 Nev., 174 P. 706, 708. As we interpret that

paragraph, it simply undertakes to state when a woman is a “qualified elector,” and such

HOHFWRUKDVDULJKWWRYRWHZKHQVKHFRPSOLHVZLWKWKHHOHFWLRQODZVUHODWLYHWR UHJLVWUDWLRQ


elector has a right to vote when she complies with the election laws relative to registration.

We find a variety of definitions of “qualified voter.” In State ex rel. Thomas v. Williams,



100 Fla. 996, 130 So. 428, 432, it is said: “There is a difference between an elector, or person

legally qualified to vote, and a voter. In common parlance they may be used indiscriminately,

but strictly speaking they are not the same. The voter is the elector who votes—the elector in

the exercise of his franchise or privilege of voting—and not he who does not vote. There

would be no propriety in saying, in the sense of his having voted, that an elector was a voter

at a meeting or election which he did not attend.”In Shearer et al. v. Board of Supervisors, etc., 128 Mich. 552, 87 N. W. 789, 790, the court

says: “‘The “voters of the county,” referred to by all such statutes, are necessarily the voters

who vote at the elections, since the result in each case must be determined by a count of the

ballots cast, and not by an inquiry as to the number not cast.' This view has the support of the

supreme court of the United States in an opinion by Mr. Justice Mathews, Carroll County v.

Smith, 111 U. S. 556, 4 S. Ct. 539, 28 L. Ed. 517.”

The supreme court of North Dakota in State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119

N. W. 360 at page 363, says: “We next come to the interpretation of the words ‘votes cast,'

and to aid us in this we may seek a definition of the word ‘voter.' This word, like the word

‘elector,' is used in various senses.”

In Mills v. Hallgren, 146 Iowa 215, 124 N. W. 1077, 1079, it is said: “The meaning of theword ‘voters' depends on the connection in which used, and is not always equivalent to

‘elector.'”

The court said in Sanford v. Prentice, 28 Wis. 358, 362: “There is a difference between an

elector, or person legally qualified to vote, and a voter.”

In Board of Supervisors of Carroll County v. Smith, 111 U. S. 556, 4 S. Ct. 539, 544, 28

L. Ed. 517, the supreme court of the United States said: “The words µ TXDOLILHGYRWHUVDV XVHGLQWKHFRQVWLWXWLRQPXVWEHWDNHQWRPHDQQRWWKRVHTXDOLILHGDQGHQWLWOHGWRYRWH

EXWWKRVHTXDOLILHGDQGDFWXDOO\YRWLQJ´


‘qualified voters,' as used in the constitution, must be taken to mean not those qualified and

entitled to vote, but those qualified and actually voting.”

See, also, County Cass v. Johnston, 95 U.S. 360, 24 L. Ed. 416.

Hence, we see that there is no uniform interpretation of the word “voter.”

Section 1 of article 2 of the constitution prescribes the qualifications of an elector. The

case of State ex rel. Boyle v. State Board of Examiners, 21 Nev. 67, 24 P. 614, 615, 9 L. R.

A. 385, holds that one who possesses those qualifications alone cannot vote. In addition to

those qualifications, to be able to vote, one must register in compliance with the statutesregulating registration. In the opinion of this court in the case of State ex rel. Boyle v. State

Board of Examiners, supra, this court recognized this to be the correct rule when it held:

“These laws [requiring registration] simply provide means for ascertaining and determining in

a uniform mode, * * * and are also intended to secure * * * the right of voting.”

This language clearly recognizes the necessity of registering before one can become a

voter.

In the case of State ex rel. Boyle v. State Board of Examiners, supra, this court had



occasion to pass upon section 1 of article 2 of our constitution, and, in so doing, held that the

statute requiring electors to register before they were entitled to vote was not an attempt to

add to the constitutional qualifications of an elector, but was simply an orderly manner of

determining whether the voter possessed the necessary qualifications, and used the following

language: “The error of the position lies in the assumption that registration is an electoral

qualification. The qualifications of an elector are prescribed by the constitution (section 1, art.2) and cannot be altered or impaired by the legislature. State v. Findlay, 20 Nev. 198, 19 P.

241 [19 Am. St. Rep. 346]. The registration laws of the state do not attempt to add to these

qualifications. These laws simply provide means for ascertaining and GHWHUPLQ LQJLQD XQLIRUPPRGHZKHWKHUWKHYRWHUSRVVHVVHVWKHQHFHVVDU\TXDOLILFDWLRQVDQGDUHDOVR

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determining in a uniform mode whether the voter possesses the necessary qualifications, and

are also intended to secure in an orderly and convenient manner the right of voting.”

The statutes regulate registration pursuant to the mandatory provision of section 6, art. 2,

of the constitution. In Massachusetts, where there were no provisions in the constitution for

registration, the legislature nevertheless enacted them, and in disposing of the question of

who was a legal voter the supreme court of that state, in Re Opinion of the Justices, 247

Mass. 583, 143 N. E. 142, 144, said: “Therefore one is not a legal voter unless he possesses

all the constitutional qualifications required to entitle one to be a voter and unless also he has

become registered as a voter in accordance with the statutes. This is manifest from the fact

that even though one possesses all the qualifications prescribed by the constitution as

essential to voting, yet he cannot vote unless his name is actually on the voting list as a

registered voter.”We are of the opinion that the legislature, in enacting section 1257 N. C. L. 1929,

contemplated that the signers to the petition provided for therein, in addition to being a mere

elector as provided in the constitution, must have complied with the registration laws, and

become a voter. Such was evidently the view taken by this court in the case of State ex rel.

Boyle v. State Board of Examiners, supra.

4. We now come to a consideration of the third question, as above designated, raised by

respondents' demurrer, namely, Does the petition for a writ of mandate, as presented to this

court, state facts sufficient to justify the issuance of the writ as prayed for?

We are of the opinion that this last question must be answered in the negative. The

petition, as presented to the council of the city of Reno, and as appears from exhibit Cattached and made a part of the petition presented to this court, and which was addressed to

the honorable council of the city of Reno and presented to WKHVDLGFLW\FRXQ FLODVDSDUWRI WKHSHWLWLRQWRDPHQGWKHFLW\FKDUWHURIWKHVDLGFLW\RI5HQRLQIRUPHGWKHVDLGFRXQFLO WKDWWKHVL[W\SHUFHQWRIWKHTXDOLILHGYRWHUVZKRVHQDPHVDSSHDURQWKHVDLGSHWLWLRQ WRWDOLQJLQQXPEHUZDVDUULYHGDWRQWKHEDVLVRIVL[ W\SHUFHQWRIWKHWRWDOYRWH FDVWIRUWKHRIILFHRIMXVWLFHRIWKHVXSUHPHFRXUWDWWKHODVWHOHFWLRQSUHFHGLQJWKHILOLQJ

RIWKHSHWLWLRQDVLVSURYLGHGE\VHFWLRQ1&/




the said city council as a part of the petition to amend the city charter of the said city of Reno,

informed the said council that the sixty percent of the qualified voters whose names appear on

the said petition, totaling in number 5,834, was arrived at on the basis of sixty percent of thetotal vote cast for the office of justice of the supreme court at the last election preceding the

filing of the petition, as is provided by section 2580 N. C. L. 1929. We are of the opinion that

this is an erroneous calculation, for, if the legislature had intended that the sixty percent be

based on the vote cast for the office of justice of the supreme court, rather than on the number

of actual qualified voters, as shown by the official register, the legislature would have so

stated. Petitioners had no right to rely upon section 2580 N. C. L. 1929, for the reason that

said section is a part of a special statute providing for an initiative petition. In this connection,

it might be well to observe that the laws of this state contain many different statutes which

provide for the filing of petitions with various boards and officers, and each provides for a

different basis of arriving at the required number of signers to such petitions, such as the votecast for governor, the representative in Congress, etc.; and, as argued by counsel for

respondents, petitioners had as much right to take as a basis sixty percent of the vote cast for

any other officer voted for by the voters of the city of Reno, as they had to take the basis of

sixty percent of the vote cast for the office of justice of the supreme court.

Having arrived at this conclusion, it can be readily ascertained that the vote cast for the

office of justice of the supreme court at the last November election of 1934 did not even

represent the number of qualified voters actually voting within the city limits of the city of

Reno. For example, we find by a reference to the official returns of the general election of

1934, as compiled by the secretary of state of the State of Nevada, that the total vote cast by

the qualified voters of the city of Reno for the office of justice of the supreme FRXUWZDV

YRWHVDQGVL[W\SHUFHQWRIZRXOGEH


court was 9,289 votes, and sixty percent of 9,289 would be 5,573.40. Then, if we examine the

same record, we find that within the city of Reno the total vote cast for the office of United

States senator was 9,985 votes, which shows there were 696 more votes cast by the voters of

the city of Reno for the office of United States senator than were cast for the office of justice

of the supreme court, and sixty percent of 9,985 votes (as cast for United States senator) is the

sum of 5,991 votes; and, since the petitioners inform the city council of Reno, upon filing

their petition, that their petition contains only 5,834 signatures after deducting 19 illegible

signatures and 13 withdrawals before the petition was filed, which is also shown by the

petition present to this court, by this calculation and without considering sixty percent of the

registered voters, the petition, upon its face, shows that the petition was short 145 signatures.

Again, we find from the same record that the number of votes cast at this election for

representative in Congress was 9,780, which shows that 491 more votes were cast for the



office of representative in Congress than were cast for the office of justice of the supreme

court; and again, from the same record, we find there were 10,025 votes cast for the office of

governor, which would be 736 more votes cast for the office of governor than were cast for

the office of justice of the supreme court.

5. We also find from the petition for writ of mandate, as presented to this court, paragraph

5, line 27, the following language: “That a copy of the six thousand four hundred five (6,405)signatures to the fifty-five (55) petition pamphlets, as aforesaid, is herewith attached and

marked ‘Exhibit E.'” By reference to the said exhibit E we find that the signers of the petition

fail to add to each signature their place of residence, as is expressly required by said

subdivision 2 of said section 1257 N. C. L. 1929.

6, 7. This court has repeatedly held that a board of county commissioners, being an inferior

tribunal of VSHFLDODQGOLPLWHGMXULVGLFWLRQFRXOGODZIXOO\SHUIRUPRQO\VXFKDFWVDVDUH H[SUHVVO\JUDQWHGE\WKHVWDWXWHVDQGZKHUHDERDUGRIFRXQW\FRPPLVVLRQHUVZDV DXWKRUL]HGWRDFWXSRQDSHWLWLRQZKLFKWKHVWDWXWHSURYLGHGPXVWEHVLJQH GE\DFHUWDLQ SHUFHQWRIWKHYRWHUVRIWKHGLVWULFWRUFRXQW\DQGWKHSHWLWLRQIDLOHGWRVKRZXSRQLWVIDFH WKDWLWFRQWDLQHGWKHUHTXLUHGQXPEHURIVLJQDWXUHVDQ\DFWLRQRIWKHERDUGLQUHVSRQVH

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special and limited jurisdiction, could lawfully perform only such acts as are expressly

granted by the statutes, and where a board of county commissioners was authorized to act

upon a petition which the statute provided must be signed by a certain percent of the voters of

the district or county, and the petition failed to show upon its face that it contained the

required number of signatures, any action of the board in response to such petition would be

absolutely void. See the case of Sate ex rel. S. T. Swift v. Board of County Commissioners of

Ormsby County, 6 Nev. 95; State of Nevada, Appellant, v. Central Pacific Railroad Co., 9

Nev. 79; State of Nevada ex rel. E. Twaddle v. Board of County Commissioners of Washoe

County, 12 Nev. 17; Louisa Godchaux v. L. N. Carpenter et al., County Commissioners of

Humboldt County, 19 Nev. 415, 14 P. 140; State ex rel. Holley et al. v. Boerlin et al., as the

Board of County Commissioners, 30 Nev. 473, 98 P. 402, 403, where this court used the

following language: “It is well settled that boards of county commissioners are inferior

tribunals of special and limited jurisdiction, and that they can only exercise such powers as

are especially granted, and that, when the law prescribes a mode which they must pursue in

the exercise of these powers, it excludes all other modes of procedure.”

We hold that a board of city council is in the same category as a board of county

commissioners and is a body possessed of but limited and special powers, as are especiallygranted, and that, when the law prescribes the mode which they must pursue in the exercise of

such powers, it excludes all other modes of procedure. It, therefore, follows that before the

city council in the instant case could lawfully act upon the petition in question the petition, as

presented, must show that it contained the necessary number of signers, who were qualified

voters, and must further show the petition was exhibited to each of the signers prior to their

signature being affixed thereto, and one of the signers, who must be a qualified voter, must

swear that WKHVWDWHPHQWVWKHUHLQFRQWDLQHGDUHWUXHWRWKHEHVWRIKLVNQRZOHGJHDQG



EHOLHIDQGIURPDQH[DPLQDWLRQRIWKHSHWLWLRQDVSUHVHQWHGWRWKLVFRXUWZHILQGWKDW WKHSHWLWLRQDVSUHVHQWHGWRWKHERDUGRIF LW\FRXQFLORIWKHFLW\RI5HQRVKRZVWKDWWKH IRUPRIDIILGDYLWDWWDFKHGWRWKHSHWLWLRQDVSUHVHQWHGWRWKHERDUGRIFLW\FRXQFLOUHDGV DVIROORZV


the statements therein contained are true to the best of his knowledge and belief; and from an

examination of the petition, as presented to this court, we find that the petition, as presented

to the board of city council of the city of Reno, shows that the form of affidavit attached to

the petition, as presented to the board of city council, reads as follows:

“Affidavit of Person Soliciting Signatures

“State of Nevada, County of Washoe, ss.

“_________, affiant herein, being first duly sworn, says that affiant is the person whosolicited the signatures to the foregoing petition paper; that the number of signatures of such

petition paper is __________; that each of the signatures contained thereon is the genuine

signature of the person it purports to be; that affiant believes such persons are electors of the

City of Reno, Nevada, and that they signed such petition paper in the presence of affiant with

knowledge of the contents thereof.

“____________________________________

“Sworn to before me and subscribed in my presence this________day of__________, 1934.

“____________________, Notary Public,

“Washoe County, Nevada.”

8. It will be noted that this affidavit is defective in the following respects: That it does not

show that the person making the affidavit was himself a signer of the petition, and shows no

more than that he solicited the signatures, when the statute (Comp. Laws 1929, sec. 1257,

subd. 2) expressly provides: “One of the signers of each such petitions shall swear that the

statements therein made are true to the best of knowledge and belief.” The certificate is

further defective in that the affiant states that he believes that such persons (signing the

petition) are “electors” of the city of Reno, Nevada, instead of being “qualified voters,” as

required by the statute. A person may be an elector, that is, he may possess all of the

constitutional requirements entitling him to vote, yet, as hereinbefore pointed out, an elector

would not be a qualified voter until he KDGUHJLVWHUHGDVUHTXLUHGE\WKHUHJLVWUDWLRQODZV RIWKLVVWDWHDQGFDXVHGKLVQDPHWREHSODFHGXSRQWKHRIILFLDOOLVWRIUHJLVWHUHGYRWHUV


had registered as required by the registration laws of this state and caused his name to be

placed upon the official list of registered voters.

There are other questions raised by respondents' demurrer, but, we feel, in view of the



conclusion here reached, namely, that the petition is insufficient to justify the issuance of the

writ as prayed for, it would be unnecessary to decide the other points raised. For the reasons

given, it is hereby ordered that the demurrer to the petition be, and the same hereby is,

sustained, the alternative writ of mandate dismissed, and the peremptory writ of mandate as

prayed for be, and the same hereby is, denied, with costs to respondents.

Note—Ducker, C. J., having disqualified himself, the Governor designated Hon. James

Dysart, Judge of the Fourth Judicial District Court, to sit in his place and stead.

____________

ÐÐÐÐ56 Nev. 72, 72 (1935) Beck v. CurtiÐÐÐÐ

BECK v. CURTI

No. 3091

May 31, 1935. 45 P. (2d) 601.

1. Judgment.In conversion action to recover value of automobile purchased by defendant at receiver's sale of

plaintiff's business during plaintiff's absence, defendant could not contend that trial court did not

determine for itself that receivership proceedings were void, but accepted prior judgment of supreme

court in certiorari proceeding wherein receivership proceedings were held void, where, notwithstanding

record did not state what trial court's theory was, evidence was same as that considered by supreme court,

and justified conclusion that receiver's sale was void.

2. Judgment.

When it appears upon face of record that judgment is void, it may be impeached at any time and byany person.

3. Receivers.In conversion action to recover value of automobile purchased by defendant at receiver's sale of

plaintiff's business during plaintiff's absence, defendant could not rely upon receiver's sale, where

receivership proceedings were void, and hence rule of caveat emptor applied.


4. Receivers.In conversion action to recover value of automobile purchased by defendant at receiver's sale of

plaintiff's business during plaintiff's absence, evidence showing that automobile had been attached prior

to receivership proceedings held properly refused, where party who had attached automobile released his

lien, and defendant could make no claim except pursuant to receiver's sale.

5. Estoppel.In conversion action to recover value of automobile purchased by defendant at receiver's sale of

plaintiff's business during his absence, plaintiff held not estopped from attacking sale in receivership on

ground that plaintiff's employee, who had been in charge of business and who instituted receivership



proceedings, was plaintiff's agent.

6. Estoppel.Essence of “equitable estoppel” is resulting prejudice arising from some act of party estopped, which

misleads other party to his injury.

7. Estoppel.In conversion action to recover value of automobile purchased by defendant at receiver's sale of

plaintiff's business during plaintiff's absence, plaintiff held not estopped from attacking sale, whereplaintiff did not act upon which defendant relied, and defendant knew of plaintiff's departure and his

continued absence, and of all proceedings in receivership.

Appeal from Second Judicial District Court, Washoe County; B. F. Curler and H. W.

Edwards, Judges.

Action by J. W. Beck against Philip Curti. From a judgment for plaintiff, defendant

appeals. Affirmed.

J. M. Frame and W. M. Kearney, for Appellant:

The proceeding in certiorari by the Electrical Products Company, a creditor, does not inure

to the benefit of the plaintiff, Beck, and the acts of the receiver during his incumbency were

not entirely without legal authority. The plaintiff had his remedy by appeal or any other direct

appropriate remedy against the proceeding. It is fundamental, however, that he could not

collaterally attack the proceedings, orders and judgments, and that is the very thing he is

attempting to do in this case. It was error, therefore, for the trial court to hold that the

proceedings were not binding upon Beck, for the reasons: First, that he is ERXQGE\WKH UHFRUGVHFRQGWKDWKHLVERXQGE\HVWRSSHOEHFDXVHRIKLVFRQGXFWDOVRE\ODFKHV EHFDXVHRIKLVQHJOHFWDQGIDLOXUHW RWDNHDQ\VHDVRQDEOHVWHSWRSURWHFWKLVSURSHUW\DQG KHLVERXQGE\WKHDFWVDQGFRQGXFWRIKLVPDQDJHUDQGDJHQWVOHIWLQFRQWURORIKLV

SURSHUW\


bound by the record; second, that he is bound by estoppel because of his conduct; also by

laches because of his neglect and failure to take any seasonable step to protect his property;

and he is bound by the acts and conduct of his manager and agents left in control of his

property. Upon the whole evidence the judgment should have been in favor of defendant.

It was also error for the trial court to sustain an objection to the offer of evidence made by

the defendant to show by the justice of the peace and the record of this court the action

brought by Vail v. Beck, and the attachment and sale of the property in controversy undersaid attachment and the judgment, which, if admitted, would establish a valid title in the

defendant and consequently show that the plaintiff was not the owner of the property in suit,

and that defendant had not wrongfully converted the same. 31 Cyc. 682, subdivision 7; 65 C.

J. pp. 87 to 90.

J. W. Dignan, for Respondent:



We submit that each and every step in the receivership proceedings was void, and no right

of property could be based thereon. This view of the matter should dispose of any alleged

estoppel claimed by reason of the receivership proceeding.

Appellant complains of the ruling of the trial court in sustaining the objection to the

introduction of the record in the justice's court in the case of Vail v. Beck. Counsel stated to

the trial court that the record from the justice's court would show: a suit filed by Vail againstBeck; a writ of attachment levied upon Beck's property—the Packard car in

question—service of summons by publication; a judgment against Beck; then an agreement

and a stipulation entered into between the receiver and the attorney for Vail, in which it was

agreed that Vail would waive his attachment lien upon the Packard car and permit the

property to be sold by the receiver, providing that the receiver would pay the amount of Vail's

lien. This was done, and the receiver sold the Packard car to Curti at the receiver's sale. ThusLWDSSHDUVWKDWWKHUHLVQRFODLPWKDW&XUWLREWDLQHGDQ\RWKHUWLWOHWKDQWKHWLWOHDFTXLUHG

E\WKHSXUFKDVHIURPWKHUHFHLYHUDQGWKHHYLGHQFHZDVSURSHUO\H[FOXGHG


it appears that there is no claim that Curti obtained any other title than the title acquired by

the purchase from the receiver, and the evidence was properly excluded.

As we view the record, no question of agency is involved. The appellant was not an

innocent purchaser, for value; he could not be such, under the law. The receivership

proceedings showed, upon their face, that the pretended receiver was without authority to

make a sale, or to do any other act as such receiver. 32 C. J. 574.

OPINION

By the Court, Coleman, J.:

This is an action of conversion to recover the value of an automobile. Judgment was in

favor of the plaintiff, from which, and an order denying defendant's motion for a new trial, an

appeal has been taken. The parties will be referred to as plaintiff and defendant, as in the trial

court.

The material facts of the case are these: In June, 1932, while engaged in running what was

known as Beck Taxi Company, in Reno, the plaintiff informed one of his employees, a Mr.

Brooks, that he was leaving for a short vacation, and requested him to run the business during

Beck's absence. Beck owned several cars, among which was the one in question. Beck did not

return for many months, nor did he communicate with anyone during his absence. Some time

after Beck's departure, Brooks became incapacitated, and another employee, Mr. A. A.

Heglen, undertook to run the business. At the time plaintiff left he was indebted to one Vail,

who, during Beck's absence, brought suit upon said claim and caused the car in question to be

attached in said proceedings. Thereafter, the said Heglen brought suit against the plaintiff

herein, and caused a receiver to be appointed to take charge of all of the assets of the plaintiff.

Subsequently, the court ordered the receiver to sell the SURSHUW\RIWKHSODLQWLIIDQGDWVXFK VDOHWKHGHIHQGDQWELGLQWKHFDULQTXHVWLRQDQGSRVVHVVLRQWKHUHRIZDVVXUUHQGHUHGWR



KLP


property of the plaintiff, and at such sale the defendant bid in the car in question, andpossession thereof was surrendered to him. Thereafter, the appointment of said receiver was

annulled by this court [see Electrical Products Corporation v. Second Judicial District Court,

55 Nev. 8, 23 P. (2d) 501] upon the ground that the lower court had no jurisdiction to appoint

a receiver.

It is the theory of the plaintiff that the receivership proceedings were void for want of

jurisdiction; hence the defendant obtained no title to the car in question. As we interpret the

51 pages of briefs and the oral argument of counsel for defendant, it is their contention that

plaintiff is attempting to collaterally attack the receivership proceedings, which they say

cannot be done in this action, and, secondly, that plaintiff is estopped from attacking the

validity of said receivership proceedings.The plaintiff, to sustain his cause of action, introduced testimony of his ownership of the

business mentioned, of the car in question, of his departure, and the designation of Mr.

Brooks to run the business during his absence; of being afflicted with amnesia, of regaining

his memory, and return to Reno, to find that his business had been placed in the hands of a

receiver. He then offered in evidence certain of the pleadings and proceedings in the

receivership matter. Counsel for the defendant objected to the introduction of the pleadings

and proceedings, except the order appointing the receiver, the order directing the sale of the

property, and the order confirming the sale. His objection was on the ground that the evidence

offered was in an attempt to collaterally attack the judgment of a court of general jurisdiction,

which could not be done in the circumstances of the matter. The court overruled the objection

and admitted the tendered record. Thereafter, all of the records and files in that matter wereadmitted. In his oral opinion rendered upon the conclusion of the trial of the case, the learned

trial judge said: “In other words, the affirmative defense ILUVWOD\VFODLPWRWKHSURSHUW\E\ YLUWXHRIDUHFHLYHUVDOHDQGVHFRQGWKHGHIHQVHWKDWWKHSODLQWLIILVHVWRSSHGWRGHQ\

WLWOHWRWKHSURSHUW\


first lays claim to the property by virtue of a receiver sale; and, second, the defense that the

plaintiff is estopped to deny title to the property. Both of defendant's defenses must fail.”We will not undertake to follow counsel for defendant in their argument, but will endeavor

simply to apply the rules of law applicable to the facts.

It seems to be the theory of counsel for defendant that the trial court did not determine for

itself that the receivership proceedings in question were void, but accepted the judgment of

this court in the certiorari proceeding mentioned, on that point, and hence contend that such

judgment could not bind the defendant; citing in support of the contention Burr v. Board of

Supervisors of Sacramento County, 96 Cal. 210, 31 P. 38, and Reagan v. Bahrs et al., 11 Cal.



App. 234, 104 P. 589.

1, 2. We do not interpret the action of the trial court as accepting the judgment of this

court, as contended. What was the theory of the plaintiff in offering the record in the

receivership, and why did the lower court admit it, if the contention is well founded? It is true

there is nothing in the record specifically stating what the theory of the trial court was, but

from its rulings we must conclude it based its judgment upon the evidence. The evidence wasthe same as that considered by this court when it reviewed the receivership proceedings in the

matter mentioned, and it is not now contended that such evidence is not sufficient to justify

the conclusion that the sale under such proceedings was void. As to the contention that such

proceedings cannot be attacked collaterally, we must hold that it is entirely without merit. It is

a well-established rule that when it appears upon the face of the record, as in such

receivership, that the judgment is void, it may be impeached at any time and by any person. 1

Black on Judgt. sec. 278; 34 C. J. 532; 15 R. C. L. pp. 842, 843.

3. The receivership proceeding being null and void, the rule of caveat emptor applies

(Tonopah Banking &RUSRUDWLRQY0F.DQH0 LQ&R1HY


Corporation v. McKane Min. Co., 31 Nev. 295, 103 P. 230); hence the defendant cannot rely

upon the receiver's sale.

4. Counsel for defendant contends that the trial court erred in refusing to admit evidence

showing that the car in question had been attached in the suit of Vail v. Beck. The ruling of

the court was based upon the allegation in the answer that defendant had purchased the car in

the matter of receivership. Counsel for the defendant admitted during the trial that such was

the fact, but contended that such sale was with the permission and under the direction of Vail.

The ruling was right; Vail released his lien by his action, and, furthermore, defendant couldmake no claim except pursuant to the alleged sale.

5-7. It is further contended that plaintiff should be estopped from attacking the sale in the

receivership. Various reasons are given as a basis of this contention. We may say generally

that none of them are well founded, and least of all the assertion that Heglen was plaintiff's

agent in instituting the receivership proceedings. The very essence of equitable estoppel is the

resulting prejudice arising from some act of the party estopped, which misleads the other

party to his injury. Sharon v. Minnock, 6 Nev. 377. There is no such circumstance appearing

in the receivership matter. From the time the plaintiff departed from the state he did no act

upon which the defendant relied. Defendant knew of plaintiff's departure and of his continued

absence, and of all the proceedings in the receivership. At least he was in a better position toknow, so far as appears, than the plaintiff. In this situation it cannot be said that the plaintiff

misled the defendant in any way or to any extent.

The judgment and order appealed from are affirmed.

____________



ÐÐÐÐ56 Nev. 79, 79 (1935) Smith v. Smith-Peterson CompanyÐÐÐÐ

SMITH v. SMITH-PETERSON COMPANY Et Al.

No. 3087

May 31, 1935. 45 P. (2d) 785.

1. Explosives.Complaint in action against owners of quarry for injuries sustained by child through explosion of

dynamite cap which had been given him by two 11-year-old boys who had found it while playing in

quarry held not to state cause of action under attractive nuisance doctrine, in absence of allegation that

boys were led to quarry by its attraction or attraction of instrumentality which caused the injuries.


dynamite cap which had been given him by two boys who had found it while playing in quarry held to

state cause of action on theory that owners of quarry had failed to take reasonable precautions either to

prevent children coming upon premises, or to remove danger to which they were exposed.Complaint alleged that premises on which quarry was located were situated partly within limits

of populous city near residences of large number of families having children, and were unfenced,

that quarry was attractive place for children, that large number of children customarily played

around quarry with knowledge and consent of owners, and that blasting operations made quarry

danger zone for children.

3. Explosives.Degree of care required of persons employing an attractive dangerous instrumentality such as

dynamite in places accessible to and likely to be frequented by children is of the highest, commensurate

with dangerous nature of the instrumentality.

4. Explosives—Negligence.Complaint in action against owners of quarry for injuries sustained by child through explosion of

dynamite cap which had been given him by two 11-year-old boys who had found it while playing inquarry held not defective for failure to allege that boys finding cap were of inferior intellect, not

appreciating danger of cap, since there is no conclusive presumption that child of 11 years must be

considered capable of exercising same care for its safety as mature person.



quarry held not defective for failure to allege that boys were of inferior intellect3ot appreciating GDQJHU

RIFDSLQYLHZRIDOOHJDWLRQWKDWER\VKDGQRDSSUHFLDWLRQRIGDQJHURXVFKDUDFWHURI FDS


danger of cap, in view of allegation that boys had no appreciation of dangerous character of cap.



quarry which alleged that children had had no experience with caps and did not appreciate their

dangerous character, held not to disclose contributory negligence of children on face of complaint, hence



such negligence would be matter of defense only if it appeared by plaintiff's evidence.



quarry held not defective for failure to allege that boys were of inferior intellect, not knowing it was

wrong to appropriate dynamite cap and pieces of fuse, in view of allegation that boys believed, as they

had a right, that fuse and cap had been discarded and were of no value.8. Explosives.

Actions of boys in finding dynamite cap while playing about quarry and in giving it to child who was

subsequently injured when it exploded held not, as matter of law, an intervening proximate cause of

child's injuries, even though it contributed thereto, unless acts of boys could not have been reasonably

foreseen.

Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Action by Bernard J. Smith against the Smith-Peterson Company and others. From a

judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

H. R. Cooke, for Appellant:

The admitted facts being that the pit with machinery therein and large pile of fine sand

greatly attracted young boys; that visits of children not only were naturally to be anticipated,

but respondents actually knew children customarily visited the premises; the respondents, as

the landowners, were under a legal duty to take precautions for protection of said children

against danger to which they would be unwittingly exposed. Best v. Dist. of Columbia, 78 L.

Ed. 635-639.


It is not conceded that the boys were trespassers, but per contra, appellant's case is

bottomed upon the principle that on account of conditions in the pit making it a likely place

for young boys to play, and more particularly because of respondents actually knowing

children customarily visited and loitered in the premises, and respondents making no

objection thereto, there was an implied invitation, and therefore such children were not

trespassers.

Respondents' abandonment of the dynamite cap, as alleged, differentiates this case from

those where the dangerous instrumentality is an actual and necessary use by the landowner.

We contend that any careless or negligent management of explosives which causes injury

is punishable as a misdemeanor, under a Nevada statute, and therefore respondents' acts

constitute negligence per se. N. C. L. sec. 10248.

Thatcher & Woodburn and Wm. J. Forman, for Respondents:

A landowner owes no duty to either adults or children trespassing on his premises, or to

bare licensees, other than to refrain from willfully or wantonly injuring them, where attractive

nuisance doctrine does not apply. Surely it could not be contended that leaving one dynamite



cap in a five-acre tract of land would be such conduct as to constitute willful or wanton

conduct on the part of the landowner.

The State of Nevada has never had occasion to rule upon the applicability of the doctrine

of attractive nuisance. To adopt it at this late date would seem to be a mistake, inasmuch as

the courts which have adopted it are now seeking by some plausible means to either

distinguish or overrule their former decision.In the absence of an allegation in the complaint that the boys who found the dynamite cap

were allured to the premises by some instrumentality thereon, the complaint wholly fails to

state a cause of action, even under the principles of the liberal attractive nuisance doctrine.


There are no allegations in the complaint that the two boys who found the dynamite cap

were children of inferior intellect. Nor is there any allegation that such boys did not know it

was wrong to go upon another's property and take therefrom such personal property as theyfound there. The mere conclusion of the pleader that the dynamite caps were apparently

abandoned, could not supply this deficiency.

The complaint failed to show that the injuries to plaintiff's son were proximately caused by

the alleged negligence of the respondents. An ordinary prudent man would not, in the

ordinary course of affairs, be bound to anticipate that if he left one dynamite cap on a

five-acre tract of land owned by himself, trespassing boys would come thereon, assume that

he had abandoned the cap, convert it to their own use, take it from the premises, and some

time later give it to another boy who would light a match to the fuse attached thereto and

thereby cause an explosion and injure himself.

OPINION


This controversy grows out of injuries alleged to have been suffered by appellant's minor

son when a dynamite cap exploded in the boy's hand. Appellant, suing in the latter's behalf,

seeks to recover the sum of $15,000 for such injuries. A demurrer to the complaint was

sustained, and judgment entered thereon.

Respondents contend that the complaint does not state a cause of action, and the judgment

was put on that ground.

According to the complaint, respondents, for some months prior to and on August 25,

1933, had been and were engaged in rock crushing on a five-acre tract of land owned bythem, or in their possession and control, and situate partly within and partly without the

corporate limits of the city of Reno. On this tract of land respondents had installed various

types of machinery in a pit about 150 feet wide by about 450 feet long DQGIHHWGHHS H[FDYDWHGE\WKHPDQGKDGFDUULHGRQEODVWLQJE\WKHXVHRISRZGHUIXVHDQGG\QDPLWH

FDSV




and 20 feet deep, excavated by them, and had carried on blasting by the use of powder, fuse,

and dynamite caps. In or near the pit was a large pile of fine sand which, together with the pit,

machinery, and equipment therein, greatly interested young boys who were, to the knowledge

of respondents, accustomed to visit the premises and pit on nonschool days and to loiter and

play thereat. About 200 feet to the north of the pit were and are situate the tracks of the main

line of the Southern Pacific Company between the city of Reno and Sparks, along which

tracts were paths frequented by boys and other persons walking between these points. Within

20 feet, and to the south of the pit, is the Truckee River, and to the south of the river and

opposite the pit is a city dumping ground long frequented by boys residing in the

neighborhood in searching for articles on the dump. A large sewer pipe forming a sort of a

walkway was laid across the river by the city of Reno between the dump and the pit premises.

Boys customarily crossed from the dump premises on said sewer pipe, and with the

knowledge and consent of respondents entered their premises and pit without any warning or

prohibition. A short distance to the north of respondent's premises and across the said railwaytracts resided a large number of families, the children of which customarily visited, loitered,

and played in and about the pit for periods of from fifteen minutes to an hour at a time. The

pit was unenclosed, and various roads used by trucks and other vehicles led into and from

said pit, and paths and walkways, customarily used by children and others, led into the pit.

Respondents at all times had notice and actual knowledge of the foregoing matters.

While carrying on said blasting operations in the easterly portion of the pit on or about

August 25, 1933, respondents carelessly and negligently kept and placed in the westerly

portion of the pit, readily accessible to children and wholly exposed, unguarded, and

unprotected, about 20 to 25 pieces of fuse about one foot in length, some burnt and some

unburnt, to one of which SLHFHVRIXQEXUQWIXVHDG\QDPLWHFDSKDGEHHQIL[HGE\ UHVSRQGHQWVDQGOHIWUHDG\IRUILULQJ


pieces of unburnt fuse a dynamite cap had been fixed by respondents and left ready for firing.

These articles lying loose, scattered and abandoned, were known to respondents to be

attractive to and would arouse the curiosity of children, and tended to invite and induce

children of the age of the two boys hereinafter mentioned, to go upon the premises and

examine the objects there lying.

No blasting operations had been carried on in the westerly portion of the pit for several

weeks or more, prior to said August 25, 1933. On or about that date two boys, each of the age

of 11 years, while playing in the abandoned area of the pit, picked up some fuse including the

piece with the dynamite cap affixed, and carried them off respondents' premises and gave

some of them, including the piece with the dynamite cap affixed, to appellant's minor son. It

is alleged that the boys, in picking up and carrying the pieces of fuse away, at the time,

understood and believed, and had a right to understand and believe, that respondents had no



objection to children loitering and playing in the westerly portion of the pit, and that the said

pieces of fuse had been by respondents' workmen wholly discarded and abandoned and of no

use or value. These children, including appellant's son, had had no experience with dynamite

caps and had no knowledge or appreciation of the dangerous character thereof, but

understood and assumed that such dynamite cap so affixed to the fuse was intended to serve

as a handle for the piece of fuse for more convenient handling and firing thereof. OnSeptember 1, 1933, appellant's minor son, while attempting to make what boys call a

“sizzler” of said fuse with the dynamite cap affixed, lighted the fuse, at the time holding the

cap end thereof in his right hand. The dynamite cap exploded, mangling his hand and causing

other injuries.

1. Such in brief is the story of the complaint. Does it show liability? Appellant insists that

it does because the pit, machinery, equipment, and sand formed a place where children were

in the habit of going to loiter and SOD\DQGWKDWUHVSRQGHQWVNQRZLQJWKLVDQGKDYLQJ DFTXLHVFHGLQLWZHUHXQGHUWKHOHJDOGXW\WRWDNHUHDVRQDEOHSUHFDXWLRQVHLWKHUWR SUHYHQWWKHIXUWKHUFRPLQJRIFKLOGUHQRUWRUHIUDLQIURPOHDYLQJGDQJHURXVH[SO RVLYHV

VXFKDVG\QDPLWHFDSVO\LQJORRVHDQGDEDQGRQHGRQWKHSUHPLVHV


play, and that respondents knowing this, and having acquiesced in it, were under the legal

duty to take reasonable precautions either to prevent the further coming of children, or to

refrain from leaving dangerous explosives, such as dynamite caps, lying loose and abandoned

on the premises. This, we take it, is appellant's main contention, though there is language in

his briefs which indicates that reliance is also had on the doctrine of an attractive nuisance.

On the other hand, respondents contend that there is no duty to a trespassing child by a

landowner except to refrain from willfully or wantonly injuring him. They contend, further,that if an exception to the above rule exists in a case where the trespasser is induced to go

upon the premises by reason of some attraction situated thereon, that the facts alleged in the

complaint do not show such a case. They contend, further, that the attractive nuisance

doctrine is not sound in law and should not be adopted in this state. The two latter

contentions we may dismiss from our consideration because we are satisfied that the so-called

attractive nuisance doctrine declared by the supreme court of the United States and some state

courts of last resort has no application to the facts of this case. This because the complaint

does not allege that the two boys who picked up the fuse with the dynamite cap attached,

which they gave to the boy injured by its explosion, were led to the pit by its attraction or the

attraction of the instrumentality which caused the mischief.

An allegation to that effect would be essential under the authorities supporting the

doctrine. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745; United Zinc &

Chemical Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28; Perry v.

Tonopah Mining Co. (D. C.) 13 F. (2d) 865; Hayko v. Colorado & Utah Coal Co., 77 Colo.

143, 235 P. 373, 39 A. L. R. 482. These decisions proceed upon the ground that the attraction

has to children the legal effect of an invitation.

The trial court ruled correctly in holding that the FRPSODLQWGRHVQRWVWDWHDFDXVHRI



DFWLRQRQWKHWKHRU\RIDQDWWUDFWLYHQXLVDQFH


complaint does not state a cause of action on the theory of an attractive nuisance. We mustdetermine then whether, independently of this question, the complaint shows liability.

Analogies to their satisfaction are found by respondents in cases like United Zinc & Chemical

Co. v. Britt, supra, and Hayko v. Colorado & Utah Coal Co., supra. In the former case, in

which the principle of an attractive nuisance was recognized with strict limitations, it was

held that “infants have no greater right to go upon other people's land than adults, and the

mere fact that they are infants imposes no duty upon landowners to expect them and to

prepare for their safety.” The latter case holds to the same effect.

In opposition to the doctrine of such cases appellant stresses the recent case of Best v.

District of Columbia, 291 U. S. 411, 54 S. Ct. 487, 78 L. Ed. 882, as a controlling authority

for his contention. In that case a child of five years of age, while playing on a wharf belongingto the District of Columbia, fell through a hole in the wharf and was drowned. The action was

for damages for the alleged negligence of the District. While the situation there was

materially different from that revealed in United Zinc & Chemical Co. v. Britt, supra, we do

not think that the case is an authority for appellant's contention that, irrespective of the

attractive nuisance theory, liability appears from the facts stated in the complaint. We are,

however, persuaded to the conclusion that appellant's contention must be allowed.

2. The complaint shows the tract of land on which the pit was located to be situated partly

within the limits of a populous city near the residences of a large number of families and

unfenced; that the pit, together with the other features alleged, and its proximity to the homes

of many families having children, was a likely place for children to visit and play in; that a

large number of children customarily visited the pit to loiter and play therein, all within theknowledge and consent of respondents; that the blasting operations FDUULHGRQWKHUHE\ PHDQVRIG\QDPLWHLIQRWDWWHQGHGZLWKGXHFLUFXPVSHFWLRQPDGHWKHSLWDGDQJHU]RQH

IRUVXFKFKLOGUHQ


carried on there by means of dynamite, if not attended with due circumspection, made the pit

a danger zone for such children. These circumstances, we think, were sufficient to give

respondents reason to anticipate the presence of children in the pit and give rise to the duty of taking reasonable precautions either to prevent their coming there or obviating the danger to

which they were exposed.

The rule, we think applicable, is stated by Judge Thompson in his work on the Law of

Negligence, vol. 1, sec. 1030, as follows: “We come now to a class of decisions which hold

the land-owner liable in damages in the case of children injured by dangerous things suffered

to exist unguarded on his premises, where they are accustomed to come, with or without

license. These decisions proceed on one or the other of two grounds: (1) (Attractive nuisance



doctrine.) (2) That although the dangerous thing may not be what is termed an attractive

nuisance—that is to say, may not have an especial attraction for children by reason of their

childish instincts—yet where it is so left exposed that they are likely to come in contact with

it, and where their coming in contact with it is obviously dangerous to them, the person so

exposing the dangerous thing should reasonably anticipate the injury that is likely to happen

to them from its being so exposed, and is bound to take reasonable pains to guard it so as toprevent injury to them.”

The rule applicable to this class is broadly stated in Shearman & Redfield on the Law of

Negligence, sec. 705, as follows: “The owner of land, where children are allowed or

accustomed to play, particularly if it be unfenced, must use ordinary care to keep it in a safe

condition, for they, being without judgment and likely to be drawn by childish curiosity into

places of danger, are not to be classed with trespassers, idlers and mere licensees.”

With reference to explosives, the rule is thus stated in 11 R. C. L. 664: “As a general rule a

person leaving exposed and unguarded on his premises an explosive ZKL FKLVIRXQGE\ WUHVSDVVLQJFKLOGUHQLVOLDEOHIRUDQ\LQMXULHVUHVXOWLQJIURPLWVH[SORVLRQ


which is found by trespassing children, is liable for any injuries resulting from its explosion.

This rule is based on the very natural and reasonable assumption that children, wherever they

go, must be expected to act upon childish instincts and impulses; and those who are

chargeable with a duty of care and caution towards them must calculate upon this, and take

precautions accordingly. If persons leave exposed to the observation of children anything

which would be tempting to them, and which they in their immature judgment might

naturally suppose they were at liberty to handle or play with, such persons should expect that

liberty to be taken.”In 45 C. J. 757, it is stated: “It is also considered that one who maintains something

dangerous to children and so exposed that there is a likelihood of their coming in contact with

and being injured by it, is under a duty of anticipating injury to them and taking precautions

to avoid it, even though the particular thing in question does not come within the attractive

nuisance rule.”

In Lone Star Gas Co. v. Parsons, 159 Okl. 52, 14 P. (2d) 369, 374, it was said: “All courts

recognize the fact that explosives are instrumentalities of the most dangerous character, and

that their dangers are unknown to young children, or at least insufficiently appreciated by

them to prevent their natural inclination to tamper with them, causing harm, the tampering

being probable because of the attractiveness due to noise or fire, or to the attractiveappearance of some explosives, and their apparent use in play. * * * And the rule is that one

having explosives in his possession, so far as their safe-keeping is concerned, is under a duty

to exercise the highest care to avoid them coming into the hands of children and causing harm

to or through them, and it is conceded in the majority of jurisdictions, and conceded in all

jurisdictions that apply the doctrine of attractive nuisance, that whether the children are or are

not trespassers is immaterial, if there is a reasonable probability of WKHLUSUHVHQFHWKDWZRXOG

FUHDWHDGDQJHURIWKHH[SORVLYHVIDOOLQJLQWRWKHLUKDQGV´




their presence that would create a danger of the explosives falling into their hands.”

In Southwest Cotton Co. v. Clements, 25 Ariz. 124, 213 P. 1005, 1009, it appeared that theemployees of the defendant corporation left a dynamite cartridge lying on the ground on its

premises. A 12 year-old-boy, who had been going on the premises with its permission, picked

up the cartridge which afterwards exploded in his hand, injuring him. The court held the

defendant liable, saying: “We think under the facts in this case it made little or no difference

whether the plaintiff was a trespasser, a licensee, or an invitee. It is quite clear that he was a

licensee; but under the authorities he would have been entitled to a verdict even had he been a

trespasser, providing he satisfied the jury the defendant left the dynamite cartridge where he

found it. At all events, it may be questioned whether the rule is different, as applied to these

different classes, when the injured party is a child and the instrumentality causing the injury is

dynamite or other high explosive.”In Butrick v. Snyder, 236 Mich. 300, 210 N. W. 311, 313, it appeared that some dynamite

caps were left by a road construction company in a tool shed situated on unfenced,

unoccupied land held in private ownership, at a place about 600 feet from a schoolhouse, and

about 150 feet back from a highway. The pupils attending the school had been permitted by

the teacher, the year before the dynamite was used on the highway, to cross it and play on the

land. In November of the following year, two boys of the school, aged 9 and 11 years, were

given such permission. They went into the tool shed, the front of which was open, and

discovered some dynamite caps in a box on a shelf. They did not know what they were. The

older boy took the cap which injured the younger out of the box and gave it to him. At the

afternoon recess, the younger boy got some matches and laid the cap on a stove in the

schoolhouse and lit the end of it. An explosion followed, injuring him. It was held that thedefendant construction company could not avoid OLDELOLW\RQWKHJURXQGWKDWWKHSODLQWLII ZDVDWUHVSDVVHU


liability on the ground that the plaintiff was a trespasser. In the course of its opinion, the court

said: “The proximity of the school and the probability that these lands would be used as a

playground by the children were facts apparent to defendant's employees. Whether a

reasonably prudent person, with a knowledge of the conditions surrounding the building andthe use which the school children would probably make of this unfenced and unoccupied

land, should have anticipated the danger incident to leaving these caps as they were left in the

shed, was, we think, a question for the jury.”

In Mattson v. Minnesota & North Wisconsin Railroad Co. 95 Minn. 477, 104 N. W. 443,

445, 70 L. R. A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498, the court said:

“The rule governing cases of this kind, stated in substance, is that one who maintains



dangerous instrumentalities or appliances on his premises of a character likely to attract

children in play, or permits dangerous conditions to remain thereon with the knowledge that

children are in the habit of resorting thereto for amusement, is liable to a child non sui juris

who is injured therefrom, even though a trespasser.”

Again the court said: “The dangerous instrumentality here involved (dynamite) is an

extremely hazardous article in the hands of mature persons, and a hundred fold more so in thehands of young children. The degree of care required of persons having the possession and

control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost

caution must be used in their care and custody, to the end that harm may not come to others

from coming in contact with them. The degree of care must be commensurate with the

dangerous character of the article (Keasbey on Electric Wires [2d ed.] 269, 270), and is

greater and more exacting as respects young children. As to such, the care required to be

exercised is measured by the maturity and capacity of the child. Sioux City & P. R. Co. v.

Stout, 17 Wall. (U. S.) 657, 21 L. Ed. 745. What would constitute reasonable care with

respect to adults might be gross negligence as DSSOLHGWRD\RXQJFKLOG


applied to a young child. 7 Am. & Eng. Enc. Law (2d ed.), 441, and cases cited. The case at

bar, within these rules, is even stronger than the so-called ‘turntable cases.' There is nothing

so attractive to young boys as articles of an explosive nature, and the greater the volume of

sound that may be produced therefrom the greater the attraction. As compared with an

ordinary turntable, dynamite is vastly more attractive, and far more dangerous. Young

children are incapable of comprehending the dangers in handling or exploding the same, and

their natural instincts urge them into experiments with it whenever it comes within their

reach. In view of these considerations, the rule of law imposed upon him who possesses suchdangerous articles should be more exacting than in the case of a turntable; and, applying the

rule to the facts before us, it is clear that the jury was justified in finding negligence upon the

part of defendant. It failed to take proper care of dynamite brought into this vicinity, and left

it exposed upon the premises where children had, to the knowledge of its servants, been in the

habit of loitering and amusing themselves.” (The italics are ours.)

3. In holding the allegations of the complaint sufficient to state a cause of action, we are

fully cognizant of the large number of respectable authorities in which the rule that a

landowner or occupier cannot be held responsible for injuries to children classed as

trespassers, unless the same are willfully or wantonly afflicted. We are unwilling to accept it.

In our opinion it leaves out of view the common propensities of children to venture in playwithout that care for their safety that comes with the experience of maturer years. Injuries

resulting in death or maiming of children, who by reason of their immaturity have been

disposed to investigate and play with attractive dangerous instrumentalities, form a long and

melancholy train of events in the realms of jurisprudence. These mournful experiences are

sufficient, we think, to supply the basis of a rule of care on the part of those employing such

instrumentalities in places accessible to and likely to EHIUHTXHQWHGE\FKLOGUHQ




be frequented by children. The degree of care should, of course, be commensurate with the

dangerous nature of the instrumentality. There are few things more attractive and none more

dangerous for children to play with than a dynamite cap. As stated in Wood v. McCabe &Co., 151 N. C. 457, 66 S. E. 433, 434: “All courts and writers agree that the degree of care

required of persons using such dangerous instrumentalities as dynamite in their business is of

the highest, and what might be reasonable care in respect to grown persons of experience

would be negligence as applied to youths and children.”

If the case were only the accessible pit with its machinery, equipment, and sand in or near

thereto, with the instrumentality alleged, the respondents would not be subject to liability

from the mere fact that two boys wandered there and picked up the dynamite cap which

caused the injury. The duty arises from the additional circumstances of the place being

frequented by children for play, and which habit was known to respondents. Because of this

knowledge and the knowledge of the nature of the danger to which they were unconsciouslyexposed, respondents should have been prompted to anticipate their presence and take proper

measures for their protection. That the habit of children visiting a place of danger might

supply a foundation for liability was intimated by the court in United Zinc & Chemical Co. v.

Britt, supra, where the court remarks: “It does not appear that children were in the habit of

going to the place; so that foundation also fails.”

And again in the same opinion where the court, distinguishing Union Pac. R. Co. v.

McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434, said: “It hardly appears that he was a

trespasser; * * * at all events boys habitually resorted to the place where he was,” (We have

supplied the italics.)

4, 5. It is contended by respondents that the complaint fails in stating essential facts in not

alleging WKDWWKHWZRER\VZKRIRXQGWKHG\QDPLWHFDSVZHUHFKLOGUHQRILQIHULRULQWHOOHFW


that the two boys who found the dynamite caps were children of inferior intellect. The

argument in this regard is that the boys of the age of 11 years should be presumed to

appreciate the danger of dynamite caps and know that it was wrong to go on another's

premises and appropriate personal property found there. We do not agree with this

contention. There is no conclusive presumption that a child of 11 years of age must be

considered capable of exercising the same care for its safety as a mature person. As was said

in Consolidated City & C. P. Ry. Co. v. Carlson, 58 Kan. 62, 48 P. 635, 636: “The question

as to the capacity of a particular child at a particular time to exercise care in avoiding a

particular danger, is one of fact, falling within the province of the jury to determine.”

In the instant case, insofar as the pleading is concerned, the question of the children's

capacity for the exercise of due care is foreclosed by the allegations: “That these children,

including appellant's son, had had no experience with dynamite caps and had no knowledge



or appreciation of the dangerous character thereof.”

6, 7. In the face of such allegations it cannot be said that contributory negligence appears

on the face of the complaint. Consequently such negligence would be a matter of defense

unless it appeared by plaintiff's evidence. The same is true of the contention that the boys

should be presumed to know that it was wrong to appropriate the pieces of fuse, in view of

the allegation that “at the time (they) understood and believed and had a right to understandand believe that * * * said pieces of fuse had been by respondents' workmen wholly discarded

and abandoned and of no use or value.”

8. Respondents contend that the complaint fails to show that the injuries to appellant's son

were proximately caused by their negligence. It is insisted that the acts of the two boys on the

premises as trespassers and wrongdoers constituted an intervening cause ZKLFKZDVWKH SUR[LPDWHFDXVHRIWKHLQMXU\


which was the proximate cause of the injury. So far as the complaint discloses, they were not

trespassers, except in the very technical sense, and were not wrongdoers for taking the fuse

which they believed had been discarded. Their actions, therefore, did not constitute such a

sufficient independent cause operating between respondents' negligence and the injury that it

can be said as a matter of law to have been the proximate cause of such injury, even though it

contributed thereto, unless their acts could not have been reasonably foreseen.

The rule is stated in Konig v. Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141,

153, where the court said: “* * * If the probable cause of an injury or accident is the first

wrong done, then that becomes the proximate cause, regardless of how many acts may have

been performed or how many agencies may have intervened between the first act or wrong

and the catastrophe. Any number of causes may intervene between the first wrongful act andthe final injurious consequences, and, if with reasonable diligence they are such as might

have been foreseen, the consequences, as well as every intermediate result is to be considered

in law as the proximate result of the first wrongful cause. Whenever a new cause intervenes

which is not the consequence of the first wrongful cause, and which is not under the control

of the first wrongdoer, and which he could not with reasonable diligence have foreseen, and

except for which the final catastrophe could not have happened, then such a result must be

held too remote to furnish the basis of an action. In all cases where no other cause intervenes

between the original act or omission contributing or producing the resultant catastrophe,

negligence of the first wrongdoer is to be regarded as the proximate cause of an injury.”

Thompson's Commentaries on Law of Neg., vol. 1, sec. 49.The circumstances shown by the allegations of the complaint when subjected to the

foregoing rule disclose a case where the respondents ought in reason to KDYHDQWLFL SDWHG

ZKDWDFWXDOO\KDSSHQHGDVWKHUHVXOWRIWKHLUQHJOLJHQFH




have anticipated what actually happened as the result of their negligence.

The judgment is reversed.


September 5, 1935. 48 P. (2d) 760.

1. Pleading.

Pleading should be liberally construed (Comp. Laws 1929, sec. 8621).

2. Explosives.

Allegation that boys who were injured by explosion of dynamite caps were playing

about quarry and understood, and had right to so understand, that owners of quarry did

not object to their playing therein, held sufficient as against general demurrer to imply

that boys belonged to group of boys which frequented the place ( Comp. Laws 1929,

sec. 8621).

3. Explosives.That boys who were injured by explosion of dynamite caps had previously visited

quarry held not essential to recovery against owners of quarry, since duty of occupier of

premises to exercise due care rests upon danger of the land and knowledge on part of

occupier that it is likely place for young children to play, and his duty extends to all

who come within protected class on account of their immaturity.


On petition for rehearing. Former judgment affirmed.

For former opinion, see 56 Nev. 79, 45 P. (2d) 785.

H. R. Cooke, for Appellant.

Thatcher & Woodburn, for Respondents.

OPINION


A petition for rehearing has been filed in which counsel for respondents express strong

exceptions to our decision. A portion of the petition is devoted to a reargument of respondents' case. It is not contended WKDWWKHFRXUWIDLOHGWRGHFLGHDQ\SRLQWSUHVHQWHG EXWWKHGHFLVLRQLVYLJRURXVO\DVVDLOHGDVEHLQJZLWKRXWSUHFHGHQWUDGLFDOO\ZURQJDQGLI SHUPLWWHGWRVWDQGZLOOSODFHDQXQGXHEXUGHQXSRQWKHRZQHURUSRVVHVVRURIODQGLQ

WKL VVWDWH




that the court failed to decide any point presented, but the decision is vigorously assailed as

being without precedent, radically wrong, and, if permitted to stand, will place an undue

burden upon the owner or possessor of land in this state.

We have given the argument due consideration, but are not persuaded that our decision is

wrong.

We concede that it is more liberal to the injured party than many of the cases cited by

respondents, but we do not concede that it is wrong in principle or without precedent or

inequitable between the owners or occupiers of land and trespassing children. We are willing

to grant that the public's interest in the possessor's free use of his land for his own purposes is

of the greatest importance. It is, however, of no higher importance than the protection of

children who, by reason of their immaturity, are entitled to such protection.

We do not intend to again discuss respondents' contentions at large, but will give attention

to a particular point made in the petition for rehearing. First, however, we will advert to the

claim that the decision is without precedent.

The American Law Institute has been well designated as an attempt to meet the need of

some restatement of law that will bring certainty and order out of the wilderness of precedent.That the decisions of courts on the subject of trespassing children make up such a multitude

of precedent is recognized by counsel for respondents, for, in their petition for a rehearing, it

is said, they “are fully cognizant of the almost chaotic state of the law upon the subject of

duties and liabilities of landowners towards trespassing children.” There being such a growth

of precedent, it is gratifying to find that the American Law Institute has established rules

consistent with the case made by the allegations of the complaint in this action. Restatement,

Torts, sec. 339. It is there said:

“A possessor of land is subject to liability for bodily KDUPWR\RXQJFKLOGUHQWUHVSDVVLQJ WKHUHRQFDXVHGE\DVWUXFWXUHRURWKHUDUWLILFLDOFRQG LWLRQZKLFKKHPDLQWDLQVXSRQWKH

ODQGLI


harm to young children trespassing thereon caused by a structure or other artificial condition

which he maintains upon the land, if

“(a) the place where the condition is maintained is one upon which the possessor knows or

should know that such children are likely to trespass, and

“(b) the condition is one of which the possessor knows or should know and which he

realizes or should realize as involving an unreasonable risk of death or serious bodily harm to

such children, and

“(c) the children because of their youth do not discover the condition or realize the risk

involved in intermeddling in it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition is slight as compared to the

risk to young children involved therein.”

Comment on clause (a) in part is: “It is sufficient to satisfy the conditions stated in clause

(a) that the possessor knows or should know that children are likely to trespass upon a part of



the land upon which he maintains a condition which is likely to be dangerous to them because

of their childish propensities to intermeddle or otherwise. Therefore, the possessor is subject

to liability to children who after entering the land are attracted into dangerous intermeddling

by such a condition maintained by him although they were ignorant of its existence until after

they had entered the land, if he knew or should know that the place is one upon which

children are likely to trespass and that the condition is one with which they are likely tomeddle.”

As to the particular point made in the petition, it is contended that this court laid down a

rule that the frequenting of the premises by children will give rise to a duty on the part of the

landowner to protect such children; that the court misapplied such rule to the allegations of

the complaint for the reason that it nowhere appears therein that the two boys who picked up

the fuse had ever visited the premises theretofore, ZHUHPHPEHUVRIWKHQHLJKERUKRRG JURXSRUWKDWWKH\KDGDQ\NQ RZOHGJHWKDWDQ\RWKHUFKLOGUHQKDGHYHUIUHTXHQWHGWKH

SUHPLVHV


were members of the neighborhood group, or that they had any knowledge that any other

children had ever frequented the premises.

In connection therewith it is argued that it is necessary in every negligence case for the

complaint to show either a duty owed by the defendant to the particular person injured, or that

the latter was a member of a particular class or group of persons to which a duty was owed.

Conceding that point was originally raised either directly or inferentially, which is doubtful,

we will dispose of it. We think the complaint shows that the two boys who picked up the fuse

were of the group in the habit of going to the pit. This is to be clearly inferred from the

following allegations of the complaint. “That said two boys were playing in and about the pit.* * * That said two boys at the time understood and believed and had a right to understand

and believe that defendants had no objection to children loitering and playing in the said

westerly portion of said pit.”

1, 2. For the purpose of determining its effect, a pleading should be liberally construed.

Section 8621 N. C. L.; Ferguson v. Virginia & T. R. Co., 13 Nev. 184.

Under this rule the foregoing allegations are sufficient, even in the presence of a general

demurrer, to imply the fact claimed by respondent to be essential, that the said two boys

belonged to the group or groups which frequented the place. 46 C. J. pp. 108, 109, 110; 21

Cal. Jur. 30.

3. But our opinion must rest on a broader basis. If the two boys were not shown to havepreviously visited the pit or to belong to a neighboring group of children who were in the

habit of visiting it, the complaint would nevertheless state a cause of action. The duty of

exercising care springs from the danger on the land and the knowledge on the part of the

possessor that it is a likely place for young children to play in. When the duty is thus charged

upon him, it extends to all trespassing children, who, if it is not observed, may be liable to

injury. It is a false logic that says an RFFXSLH URIODQGLVXQGXO\RSSUHVVHGLIFKDUJHGZLWKD

GXW\WRDOO\RXQJWUHVSDVVLQJFKLOGUHQ




occupier of land is unduly oppressed if charged with a duty to all young trespassing children.

If he is compelled to use ordinary care for the protection of those in the immediate vicinitywho are in the habit of coming upon his land, wherein does he suffer any injustice if this duty

extends to all who come within the protected class on account of their immaturity? Ordinary

care protects him as fully from the many as from the few, or, if the danger is great, a

corresponding degree of care shields him from damage in either instance.

It is to be observed that the restatement and comment formulated by the American Law

Institute make no such limitations as counsel contends for. When the duty arises, it extends to

young children trespassing on the land, and this, as we have indicated, is not unreasonable in

scope. To illustrate, the complaint alleges the premises to be situate partly within the limits of

a populous city. Certainly it would be a curious doctrine that would afford protection to

young living nearest the pit and who were in the habit of going thereto to play, and withholdit from the others of the city, who might visit the place. To illustrate further, suppose two

boys had come from afar to visit a family living near the pit and had gone with the children of

that family to the place, would the duty devolving upon respondents have extended only to

the latter? We think not.

For the reasons given, the rehearing is denied.

____________

ÐÐÐÐ56 Nev. 100, 100 (1935) Taylor v. Taylor et al.ÐÐÐÐ

TAYLOR v. TAYLOR Et Al.

No. 3107

May 31, 1935. 45 P. (2d) 603.

1. Appeal and Error.Appeal from judgment held not dismissible for lack of judgment roll, where bill of exceptions settled

by trial judge contained all of documents constituting judgment roll, and proceedings, including evidence,

although nothing in bill of exceptions was designated “judgment roll” (Comp. Laws 1929, secs. 8829,

9400).

2. Appeal and Error.Where bill of exceptions recited that appellants' motion for new trial was denied, reviewing court was

required to conclusively presume that motion for new trial was made and to refuse respondents' motion to

dismiss appeal from order denying motion for new trial and motion to affirm order denying motion for

new trial, made on ground that bill of exceptions did not contain motion for new trial, and to grant

appellants' motion to remand bill of exceptions for correction and amendment.

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



Actions by Donald F. Taylor and by Francis B. Taylor against A. C. Taylor and others.

From the judgment, defendants appeal. On plaintiffs' motions to dismiss the appeal from the

judgment, to dismiss the appeal from the order denying defendants' motion for a new trial,

and for affirmance of the order denying defendants' motion for a new trial, and for striking of

all portions of the record not properly a part of the judgment roll, and on defendants' motionto have the bill of exceptions remanded to the trial court for correction and amendment.

Plaintiffs' motions denied, with directions, and bill of exceptions ordered remanded for

correction and amendment.

Hawkins, Mayotte & Hawkins, for Respondents:

The motion to dismiss the appeal from the judgment should be sustained. There is neither

a copy or purported copy of the judgment roll, nor copies of the papers making up the

judgment roll, “certified by the clerk or by the parties,” as required by sec. 9394 N. C. L.


on file in this court. There is no provision in the statutes of Nevada authorizing the judge of

the trial court, or anyone except the clerk or the parties, to certify as to the judgment roll or

the papers making up the judgment roll. Holmes v. Iowa Mining Co., 23 Nev. 23, 41 P. 762;

Becker v. Becker, 24 Nev. 476, 56 P. 243; Ellis v. Bennet et al. (Cal.), 3 P. 801; Hayne v.

New Trial and Appeal, vol. 2 (rev. ed.), sec. 268, p. 1484.

There is no motion for a new trial in the record on appeal; hence we submit that by and

under the unbroken line of decisions of this court, culminating in Baer v. Lilenfeld, 55 Nev.

198, 31 P. (2d) 1037, and the authorities therein cited with approval, it is manifest that

respondent, in each of the cases, is entitled to an order of this court affirming the orderdenying the motion for a new trial.

Milton B. Badt, for Appellant:

Respondents' motions to dismiss and to strike parts of the bill of exceptions upon the

ground that sundry pleadings that would be a part of the judgment roll are not certified to by

the clerk, must be denied under authority of Orleans Hornsilver Mining Company v.

LeChamp D'Or Gold Mining Company, 52 Nev. 85, 280 P. 887, and Picetti v. Orcio, 56 Nev.

1, 41 P. (2d) 2089.

The affidavit of Mr. Hawkins, to the effect that the statement of facts contained in his

motion is true of his own knowledge, is not an affidavit to the effect that no motion for newtrial was made. As contrasted with such affidavit, the affidavit of Milton B. Badt, in

opposition to respondents' motions, and in support of appellants' motions to remand the

record for correction, recites definitely that the motions for new trial were made, the grounds

stated and the motions submitted. And the affidavit is supported by the notes of the affiant set

out verbatim therein.

The motion to remand the bill of exceptions should be granted. Brockman v. Ullom, 52

Nev. 267, 286 P. 417; Picetti v. Orcio, supra.




OPINION


On March 28, 1935, respondent filed notice of motion to the effect that the appeal from the

judgment be dismissed; that the appeal from the order denying appellants' motion for a new

trial be dismissed; that the order denying appellants' motion for a new trial be affirmed; that

all portions of the record not being properly a part of a judgment roll be stricken.

The ground for the motion to dismiss the appeal and affirm the order denying the motion

for a new trial is that there is not in the bill of exceptions settled by the court a motion for a

new trial. The motion to dismiss the appeal from the judgment is based upon the ground that

there is not before us a judgment roll, as contemplated by section 8829 N. C. L.

Subsequent to the filing of the notice of motions mentioned, counsel for appellant filedand served notice of motions to the effect that he would move to have the bill of exceptions in

the case remanded to the trial court for correction and amendment, so as to include therein the

motion for a new trial which it is claimed was made in the trial court. At the time set for

hearing, the respective parties made motions in conformity with their notices of motions.

Counsel for appellant supports his motion by his aff idavit to the effect that a motion was

made and denied. Counsel for respondent has filed counter affidavits and a certificate of the

clerk to the effect that no motion for a new trial was made.

1. We will consider first the contention of respondents to the effect that there is no

judgment roll in the record. The trial judge settled a bill of exceptions which contains all of

the documents constituting the judgment roll and the proceedings, including the evidence. It

is true there is nothing in the bill of exceptions designated “judgment roll.” We do not think that is necessary. Subsection 1 (b) of section 2, chapter 88, Statutes 1927 (section 9400 N. C.

L.), provides: ³:KHQHYHUWKHMXGJPHQWUROORUWKHSDSHUVPDNLQJXSWKHMXGJPHQWUROO VKDOOEHLQFRUSRUDW HGLQDELOORIH[FHSWLRQVLWVKDOOQRWEHQHFHVVDU\WRWDNHWRWKH

VXSUHPHFRXUWDQ\VHSDUDWHFRS\RIWKHMXGJPHQWUROO´


“Whenever the judgment roll, or the papers making up the judgment roll, shall be

incorporated in a bill of exceptions, it shall not be necessary to take to the supreme court anyseparate copy of the judgment roll.”

This disposes of the first contention of counsel for respondent, as we held in Orleans M.

Co. v. Le Champ M. Co., 52 Nev. 85, 280 P. 887.

2. The next question we will consider is appellants' motion to remand the bill of

exceptions for amendment and correction.While the showing made by the respective parties

is conflicting as to whether or not a motion for a new trial was made in the trial court, the bill

of exceptions recites: “and defendants' motion for a new trial, coming on regularly to be heard



* * *. It was further ordered that the defendants' motion for a new trial be and the same is

hereby denied.”

This record shows that a motion for a new trial was made. Furthermore, one of

respondents' motions is to affirm the order denying appellants' motion for a new trial. In view

of the recital in the bill of exceptions, we must conclusively presume that a motion for a new

trial was made. In view of this situation, should we remand the record for correction andamendment? Unquestionably we should. Brockman v. Ullom, 52 Nev. 267, 286 P. 417.

There is nothing in Shirk v. Palmer, 48 Nev. 449, 232 P. 1083, 236 P. 678, 239 P. 1000, in

conflict with the conclusion we have reached, since we held in that case that the bill of

exceptions had not been settled as provided by law; in other words, there was no bill of

exceptions to settle. Nor is there anything in Brearley v. Arobio et al., 54 Nev. 382, 12 P. (2d)

339, 19 P. (2d) 432, in conflict with the conclusion here reached. In that case there was not in

the record a motion for a new trial, which could only have been brought up in a bill of

exceptions. No motion was made in that case, as in this, to remand the bill of exceptions for

correction and amendment, which distinguishes it from the instant case.

It is ordered that the bill of exceptions on file in this case be remanded by the clerk of this

court to the clerk RIWKH6HFRQGMXGLFLDOGLVWULFWFRXUWRI1HYDGDLQDQGIRU:DVKRH&RXQW\ IRUFRUUHFWLRQDQGDPHQGPHQWE\WKHFRXUWLQLWVGLVFUHWLRQVRDVWRPDNHLWVSHDNWKH

WUXWKDVWRWKHPDWWHUVXUJHGE\DSSHOODQWV


of the Second judicial district court of Nevada, in and for Washoe County, for correction and

amendment by the court, in its discretion, so as to make it speak the truth as to the matters

urged by appellants.

It is further ordered that all of the motions of respondents be denied, without prejudice totheir renewal within ten days after said bill of exceptions is returned to this court and written

notice thereof is given respondents.

____________

ÐÐÐÐ56 Nev. 104, 104 (1935) Conservation District v. BeemerÐÐÐÐ

WASHOE COUNTY WATER CONSERVATION

DISTRICT v. BEEMER, County Clerk, Et Al.

No. 3109

May 31, 1935. 45 P. (2d) 779.

1. Counties.Statute authorizing Washoe County to aid in $1,000,000 water storage project, for which United

States was to advance money by issuing noninterest-bearing bonds of county for $500,000, delivering



bonds to water conservation district, and levying and collecting taxes for payment thereof, held not

violative of constitutional provision against “loan” of county's credit to joint stock company, corporation,

or association (Stats. 1935, p. 22; Comp. Laws 1929, secs. 8008-8097; Const. art. 8, sec. 10).

2. Constitutional Law—Taxation.Statute authorizing Washoe County to aid in $1,000,000 water storage project, for which United


bonds to water conservation district, and levying and collecting taxes for payment thereof, held notinvalid as imposing tax for private rather than public purpose, or as depriving property owners outside

conservation district of property without due process (Stats. 1935, p. 22; Const. U. S. Amend. 14;

Const. Nev. art. 1, sec. 8).

3. Statutes.Where constitution prohibits local or special laws in enumerated cases, and requires that all laws be

general where general law can be made applicable, special or local law within enumerated cases is

unconstitutional, but if not within enumerated cases, its constitutionality depends upon whether general

law can be made applicable (Const. art. 4, secs. 20, 21).

4. Statutes.Statute authorizing Washoe County to aid in $1,000,000 water storage project, for which United

States was to advance money by issuing noninterest-bearing bonds of county for

GHOLYHULQJERQGVWRZDWHUF RQVHUYDWLRQGLVWULFWDQGOHY\LQJDQGFROOHFWLQJWD[HVIRU SD\PHQWWKHUHRIKHOGQRWDFW³UHJXODWLQJ´FRXQW\EXVLQHVVRUIRUDVVHVVPHQWDQG FROOHFWLRQRIWD[HVIRUFRXQW\SXUSRVHZLWKLQFRQVWLWXWLRQDOSURKLELWLRQDJDLQVWORFDO RUVSHFLDOODZVRIVXFKQDWX UH6WDWV


$500,000, delivering bonds to water conservation district, and levying and collecting taxes for payment

thereof, held not act “regulating” county business or for assessment and collection of taxes for county

purpose, within constitutional prohibition against local or special laws of such nature (Stats. 1935, p. 22;

Const. art. 4, sec. 20).To “regulate” is to govern or direct according to rule; to adjust, order, or govern by rule,

method, or established mode; to control, govern, or direct by rule or regulations.

5. Statutes.Existence of general law relating to subject matter of special or local law does not show that general

law could be made applicable, so as to invalidate special or local law, but strong presumption exists that

legislature had good reason for determining that general law could not be made applicable to situation

covered by special or local law (Const. art. 4, sec. 21).

6. Statutes.Statute authorizing Washoe County to aid in $1,000,000 water storage project, for which United


bonds to water conservation district, and levying and collecting taxes for payment thereof, held not

unconstitutional on ground that existing general law could be made applicable (Stats. 1935, p. 22; Stats.

1933, c. 95; Const. art. 4, sec. 21).

7. Statues.Title of statute authorizing Washoe County to aid in $1,000,000 water storage project, for which

United States was to advance money by issuing noninterest-bearing bonds of county for $500,000,

delivering bonds to water conservation district, and levying and collecting taxes for payment thereof, held

not objectionable as expressing more than one subject, and matters properly connected therewith, or as

purporting to revise or amend a law by reference to its title only (Stats. 1935, p. 22; Stats. 1933, c. 95;



Const. art. 4, sec. 17).

Original proceeding in mandamus by the Washoe County Water Conservation District

against Elwood H. Beemer, as County Clerk and Ex Officio Clerk of the Board of County

Commissioners of Washoe County, Nevada. Writ granted.

Price & Merrill, for Petitioner:

There are many decisions to the effect that the inhibition in state constitutions against the

loaning or pledging of funds of the state do not apply to districts organized for public

purposes. Fisher v. Steele, 39 /D


La. Ann. 447, 1 So. 882; Foster v. Cowlitz County, 100 Wash. 502, 171 P. 539; Kadow v.

Paul, 134 Wash. 539, 236 P. 90; Flood Abatement Commission v. Merritt, 94 Misc. 388, 158N. Y. Supp. 289; City of Oakland v. Garrison, 194 Cal. 298, 228 P. 433; Cobb v. Parnell

(Ark.), 36 S. W. (2d) 388; Alabama State Bridge Corporation v. Smith (Ala.), 116 So. 695;

Connor v. Blackwood (Ark.), 2 S. W. (2d) 44.

The petitioner clearly does not come within the class of excluded corporations designated

in the section of the constitution as “joint-stock company, corporation, or association.” It was

created for public purposes, for the same general purposes and under the same act that Walker

River irrigation district and Lovelock irrigation district were created; and this court has held

in the case of In re Lovelock Irrigation District, 51 Nev. 215, 273 P. 983, that that district,

organized “pursuant to the irrigation district act, was created for a public purpose.” It

therefore follows that the constitutional prohibition of sec. 10 of art. VIII is not applicable.

But the act is not unconstitutional for a still stronger reason. It enables the county, acting incooperation with the conservation district, to protect its own property and to safeguard the

health of its inhabitants. Its bonds will not be issued without a consideration. Gem Irrigation

District v. Gallet (Ida.), 253 P. 128.

The case of State v. Churchill County, 43 Nev. 290, 185 P. 459, is clearly distinguishable

from the instant case, in that in the former case the purpose was a private one, while in the

latter the purpose is a public one. The tax for the bonds, therefore, would not deprive the

taxpayers of the county of their property without due process of law, in violation of the

fourteenth amendment to the constitution of the United States and of sec. 8 of art. I of the

constitution of Nevada.

The enumerated cases in sec. 20 of art. IV of the constitution of Nevada do not cover sucha case as that at bar, unless it comes within the phrase “for the DVVHVVPHQWDQGFR OOHFWLRQRI WD[HVIRUVWDWHFRXQW\DQGWRZQVKLSSXUSRVHV´


assessment and collection of taxes for state, county and township purposes.” We submit



that the tax in question does not provide a special law for that purpose. The taxes required to

discharge the bonds provided for in the act are assessed and collected in the same manner as

are state and county taxes. Gibson v. Mason, 5 Nev. 284.

Upon examination of the title of the act it will appear that there is one main subject, namely,

“to aid in the acquisition and construction of works and improvements for upstream storage

of waters of the Truckee River system,” and that the other provisions specifically mentionedin the title are necessarily germane thereto. Section 6 of the act does not revise or amend or

attempt to revise or amend the general act relating to bond issues, but simply indicates that

this act is a special act and independent of the provisions of the general act. Worthington v.

District Court, 37 Nev. 212, 142 P. 230; State v. Payne, 53 Nev. 193, 295 P. 770.

It has been settled by numerous decisions of this court that when a special act is passed by

the legislature, a presumption is thereby raised that a general law could not be made

applicable, and the court will not oppose its judgment to that of the legislature except in cases

admitting of no reasonable doubt. State v. Irwin, 5 Nev. 111; Hess v. Pegg, 7 Nev 23; Evans

v. Job, 8 Nev. 322; State v. Swift, 11 Nev. 128; State v. Lytton, 31 Nev. 67, 99 P. 855;

Quilici v. Strosnider, 34 Nev. 9, 115 P. 177.

Ernest S. Brown, District Attorney of Washoe County, and Nash P. Morgan, Deputy

District Attorney of Washoe County, for Respondent:

The act of 1935, providing for the loan of credit of Washoe County to the water district,

violates sec. 10 of art. VIII of the constitution of Nevada. The only case in which this section

has come before this court for consideration in this connection is that of Gibson v. Mason, 5

Nev. 284. It was held therein that Ormsby &RXQW\PLJKWZLWKWKHSHUPLVVLRQRIWKH OHJLVODWXUHOHQGLWVFUHGLWRUPDNHDJLIWRUGRQDWLRQWRWKH9 LUJLQLDDQG7UXFNHH5DLOZD\

&RPSDQ\


County might, with the permission of the legislature, lend its credit or make a gift or donation

to the Virginia and Truckee Railway Company. But this is expressly provided for in the

section, and, because railroads are excepted from its provisions, it follows that all other

quasi-public corporations come within its provisions and cannot be aided by the county. State

v. Williams, 43 Nev. 290, 185 P. 459; Rogers v. White (Ala.), 70 So. 994.

The general act of 1919, under which petitioner was created, provides a method of paying

for the improvements of the district, namely, the assessment of the land benefited. So, a

general tax on all the property of the county cannot be levied for such purposes. The general

act is exclusive. Devine v. Sacramento County (Cal.), 54 P. 262; Interstate Trust Company v.

Montezuma Water District (Colo.), 181 P. 123.

The act of 1935 is violative of sec. 10, art. VIII of the constitution of Nevada, because,

inasmuch as there is no provision for the repayment of the money, and the county acquires no

lien, right or interest in and to the property or improvements to be constructed, and retains no

control over the use or regulation of the water to be stored; it is in effect a gift to the district.

The purpose being private, and not public, the act violates the fourteenth amendment to the



federal constitution, and sec. 8 of art. I of the constitution of Nevada. State v. Williams,

supra. Taxing property owners who are not directly benefited, in order to irrigate the lands of

others and directly benefit them by helping them raise more crops, is taking private property

of one and giving it to another without due process or compensation.

The act is both local and special, and hence violates sec. 20 of art. IV of the constitution of

Nevada. The act of 1919, under which the district was organized, is a general law, andconforms to the constitution; it provides the method for paying for such improvements, to

wit: by assessment of the lands directly benefited.


The act of 1935 is special and local by its own terms and language. By section 6 it

attempts to exclude the operation of all general acts pertaining to bond issuances. All other

municipalities of the state must submit their bond issues to the vote of the people. The law of

1933, requiring bond elections, is general, and can be and is made applicable to WashoeCounty, as well as all other counties. The act of 1935 is an attempt to regulate county

business and provide for the assessment and collection of taxes for county purposes within

one county only of the State of Nevada, and as such violates said section of the constitution.

State v. Con. Virginia Mining Co., 16 Nev. 432.

The title to the act does not express one subject only and matters properly connected

therewith, as required by sec. 17, art. III of our constitution. The title says nothing about

repealing the bond election law insofar as it applies to the proposed issue. The title does say

that the act is independent of all other acts relating to bond issues. But an act requiring

elections to be held and the consent of the people obtained before bonds can be issued is quite

a different matter from all acts “relating to bond issues.” State v. Payne, 53 Nev. 193, 295 P.

770; State v. Hoadley, 20 Nev. 317, 22 P. 99; State v. Commissioners of Washoe County, 22Nev. 399, 41 P. 145.

The act of 1935 violates sec. 17 of art. III in that it attempts to amend or revise another act

by reference to title only. Section 6 of the act provides that it shall not be subject to the act of

1933, quoting the title of said act of 1933. Mulcahy v. Baldwin (Cal.), 15 P. (2d) 738; City of

Los Angeles v. Hanes (Cal.), 54 P. 387.

The act of 1935 violates sec. 20 of art. IV in granting special privileges to the petitioner.

No other district or corporation is relieved from the general bond election law of 1933. No

other district or corporation in Washoe County, or the State of Nevada, has received a

donation or gift. All other conservation or irrigation districts in Nevada must assess the

property of their own members to raise money for improvements. In RUGHUWRPDNHWKLVJLIW DVSHFLDOODZLVSDVVHGIRUWKHEHQHILWRISHWLWLRQHU


order to make this gift, a special law is passed for the benefit of petitioner. Only this district is



thereby relieved of half the cost of its proposed construction.

Section 21 of art. IV of our constitution provides that no local or special law shall be

passed in any case where a general law can be made applicable. There is now a general law

applicable to bond elections; it has been declared constitutional by this court in a recent

decision; there is no reason for a special or local law in this respect for Washoe County. Such

law as enacted by sec. 6 of the act of 1935 is void, being in conflict with this provision.

OPINION


Original proceeding in mandamus.

Petitioner, Washoe County water conservation district, was organized under the Nevada

irrigation district act of March 19, 1919, N. C. L. secs. 8008-8097. Its chief purpose was to

store and regulate the flood waters of the Truckee river. It is now proposed that $1,000,000 be

spent in the acquisition and construction of reservoirs, waterworks, and improvements for

upstream storage of the waters of the Truckee river stream system. The money is to be

advanced by the United States and repaid, over a long term of years, by petitioner. In order toaid and participate in this project, it is proposed that Washoe County issue bonds in the

aggregate amount of $500,000 which is alleged to be a reasonable, proper, and equitable

proportion of the cost for said county to bear, by reason of the benefits it will derive from

such reservoirs and improvements.

In furtherance of said plan, the legislature passed an act, approved February 28, 1935,

authorizing the board of county commissioners of Washoe County to aid in the acquisition

and construction of such reservoirs,ZDWHUZRUNVDQGLPSURYHPHQ WVE\LVVXLQJ QRQLQWHUHVWEHDULQJERQGVRIVDLGFRXQW\GHOLYHULQJVXFKERQGVWRSHWLWLRQHUDQGOHY\LQJ

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waterworks, and improvements by issuing noninterest-bearing bonds of said county,

delivering such bonds to petitioner, and levying and collecting taxes for the payment thereof.

Statutes of Nevada 1935, p. 22. After reciting the benefits to be derived by Washoe County

from said proposed project, said act authorizes said board of county commissioners to issue

bonds as aforesaid, but provides that such bonds shall not be delivered to petitioner until it

shall have entered into a contract with the United States, an agency of the United States, or

other corporation, public or private, for the acquisition and construction of such waterworks

and improvements, or for the payment of moneys required to be paid in connection therewith.

The act further provides that all moneys collected by or paid to petitioner under said bonds,

and all proceeds thereof, shall be used by petitioner for the purposes aforesaid, and for no

other purpose. It is further provided that, if within two years after the approval of said act of

1935, said contract with the United States shall not have been entered into nor delivery of

said bonds requested by petitioner, the bonds shall be forthwith canceled by the county

treasurer. The act next provides that an annual ad valorem tax be levied and collected for the



payment and redemption of said bonds; such taxes to be levied and collected in the same

manner as general county taxes. By the terms of the act, Washoe County is authorized to enter

into contracts with petitioner, or such parties as may by said county or petitioner be deemed

advisable, relating to the financial participation of said county in the costs of such work and

improvements.

The United States has agreed to advance $1,000,000 to the petitioner for the acquisitionand construction of the reservoirs and improvements aforesaid. This money, according to the

allegations of the petition, is available to the petitioner only in the event it proceed

immediately to enter into a contract with the United States for the repayment of said money.

Petitioner further alleges that it cannot safely enter into VXFKFRQWUDFWVZLWKWKH8QLWHG 6WDWHVXQOHVV:DVKRH&RXQW\ZLOODVVXPHLWVSURSRUWLRQRIWKHFRVWRIWKH7UXFNHHULYHU

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such contracts with the United States, unless Washoe County will assume its proportion of

the cost of the Truckee river upstream project as provided in said act of 1935.

Pursuant to said act, the county commissioners passed a resolution prescribing the form

and date of the proposed bonds, and directing the clerk of the board to cause said bonds to be

printed and signed, and to do and perform the other acts and things which he is required to do

under said act and said resolution. In March, 1935, petitioner demanded of respondent that he

proceed to perform the acts required of him, as aforesaid, whereupon respondent declined so

to do, upon the ground that he entertained serious doubts as to the constitutionality of said act

of 1935, and as to whether bonds issued thereunder would be valid. Petitioner in this

proceeding prays that respondent be commanded to do the things required of him by said act

of 1935 and said resolution of the board of county commissioners, as aforesaid.1. 1. Respondent first attacks the constitutionality of said act of 1935 upon the ground that

it violates section 10 of article 8 of the constitution of Nevada. This provision reads as

follows: “No county, city, town, or other municipal corporation shall become a stockholder in

any joint-stock company, corporation, or association whatever, or loan its credit in aid of any

such company, corporation, or association, except railroad corporations, companies, or

associations.”

We do not find it necessary to decide whether petitioner is a joint stock company,

corporation, or association within the meaning of the foregoing provision, because it is not

clear that the proposed bond issue would constitute a loan of the credit of Washoe County.

Grout v. Kendall, 195 Iowa 467, 192 N. W. 529; Martens v. Brady, 264 Ill. 178, 106 N. E.266; Kinney v. City of Astoria, 108 Or. 514, 217 P. 840; Veterans' Welfare Board v. Riley,

188 Cal. 607, 206 P. 631; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9; Ruff v. Womack,

174 Ark. 971, 298 S. W. 222.




The legislature, by the act of February 28, 1935, has not authorized Washoe County to

become surety for petitioner. The United States, as a part of its national recovery program, is

willing to advance the $1,000,000 required for the Truckee river upstream storage project; an

enterprise which the legislature, as well as petitioner and the board of county commissioners

of Washoe County, believe will bring about much needed benefits, consisting not only in

direct material assistance to petitioner, but also in numerous advantages tending directly andvery substantially to the public welfare of Washoe County as a whole. Petitioner, naturally, is

chiefly interested in the benefits accruing to it from the proposed project, while Washoe

County as a whole is primarily interested in the direct benefits which said project will bring to

it through prevention of flood damage, the improvement of sanitary conditions, increase of

property values, enhancement of scenic beauties, stimulation of tourist travel, improvement of

conditions for fish culture, and other advantages. Petitioner, besides assuming a full half of

the cost of this project, must also bear its proportion of the taxes which will be assessed and

collected for the redemption of the county bonds. The legislature has authorized Washoe

County, not to lend or give either its money or its credit, but to bond itself for the purpose of

taking advantage of an opportunity to participate in a project which it is believed will redound

in full measure to the material and lasting prosperity of said county.2. Respondent further contends that the act in question violates the due process provisions

of the federal and state constitutions, the fourteenth amendment to the constitution of the

United States, and section 8 of article 1 of the constitution of Nevada. The only authority

cited in support of this position is State v. Churchill County, 43 Nev. 290, 185 P. 459. It is

claimed that the purpose of the 1935 act is private, not public; that the taxing of property

owners outside the boundaries of the conservation district is for the EHQHILWRIWKRVHKDYLQJ LUULJDEOHODQGVZLWKLQVDLGGLVWULFWDQGWKDWWKLVLVGHSULYLQJWKHIRUPHURISURSHUW\

ZLWKRXWGXHSURFHVVRIODZ


benefit of those having irrigable lands within said district; and that this is depriving the

former of property without due process of law. But the situation here is very different from

that presented in the Churchill County case. It is true that the county bond issue would

operate to help petitioner; but it is just as true that the assumption by petitioner of half the

cost of the project, in addition to the proportion of county taxes which would have to be paid

by owners of irrigable lands within the boundaries of the district, would in turn operate to

help the county as a whole. The primary purpose of the proposed bond issue is to enable

Washoe County, by cooperating with petitioner and the United States to seize the opportunityto gain for itself lasting benefits of great value; an opportunity which may not again be

available, either to petitioner or Washoe County. The act of 1935 is free from the ineffective

and unenforceable loaning enterprise which was found to be objectionable by a majority of

the members of this court in the Churchill County case. Whenever the United States, in its

recovery program, lends money to aid in the carrying out of such enterprises as the Truckee

river upstream storage project, it takes an active interest in them at all stages, supervising and

inspecting the work, insisting upon compliance with the terms of carefully prepared contracts,



and keeping in close touch with the projects at all times; realizing that upon the success of the

project depends the full repayment of the government loan. Assurance is thus not wanting

that the project in question here would be completed, with inestimable benefit to Washoe

County and petitioner, not to mention an appreciable amount of benefit to the whole state; for

that which benefits substantially and permanently one portion of the state contributes to the

prosperity and well-being of its other portions also.We are unable to agree with respondent's claim that the purpose of the act of February 28,

1935, is private, not public. In Dayton Mining Co. v. Seawell, 1HYDWSDJH


11 Nev. 394, at page 405, the court quotes the following words of Chief Justice Bigelow in

Talbot v. Hudson, 16 Gray (Mass.) 417, 423: “It has never been deemed essential that the

entire community, or any considerable portion of it, should directly enjoy or participate in an

improvement or enterprise, in order to constitute a public use, within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and

cripple the authority of the legislature, so as to deprive it of the power of exerting a material

and beneficial influence on the welfare and prosperity of the state. In a broad and

comprehensive view, such as has been heretofore taken of the construction of this clause of

the declaration of rights, everything which tends to enlarge the resources, increase the

industrial energies, and promote the productive power of any considerable number of the

inhabitants of a section of the state, or which leads to the growth of towns and the creation of

new sources for the employment of private capital and labor, indirectly contributes to the

general welfare and to the prosperity of the whole community.”

Even in the Churchill County case, 43 Nev. 290, 185 P. 459, cited by respondent, the court

recognized that the tax there in question was for a public purpose.The article on taxation in 61 C. J. says, at pp. 92, 93: “It is conceded that it is often

difficult in practice to determine whether a particular object of taxation is public or private;

and it has been said that ‘public purpose' is a phrase perhaps incapable of definition, and

better elucidated by examples. It has been held, however, that the power of taxation is exerted

for a public purpose when the money raised is to be applied: * * * To the development and

conservation of water resources for domestic use, irrigation, and light and power.”

And see Mott, Due Process of Law (1926), secs. 176, 177, 178.

3, 4. Respondent next contends that the act of February 28, 1935, is special and local, and

that it comes ZLWKLQWZRRIWKHVXEMHFWVRUFDVHVHQXPHUDWHGLQVHFWLRQRIDUWLFOHRI

WKHVWDWHFRQVWLWXWLRQ


within two of the subjects or cases enumerated in section 20 of article 4 of the state

constitution. He further contends that if said act is not included in any of the enumerated



subjects in said section 20, it is none the less void because, under the provisions of section 21,

art. 4, a general law not only could be made applicable to the situation covered by said act,

but such a general law is actually in effect (Statutes of Nevada 1933, c. 95, pp. 116, 117), and

has recently been held to be constitutional. The pertinent part of said section 20 provides that:

“The legislature shall not pass local or special laws in any of the following enumerated cases,

that is to say: * * * Regulating county and township business; * * * for the assessment andcollection of taxes for state, county, and township purposes. * * *” Section 21 of said article 4

reads: “In all cases enumerated in the preceding section, and in all other cases where a general

law can be made applicable, all laws shall be general and of uniform operation throughout the

state.” The 1933 act above mentioned provides that whenever the state, or any county, city, or

town, school district, or high school district, proposes to issue bonds, the proposal for such

bond issue shall be submitted at a general or special election, called for that purpose, to the

electors of the state or municipality involved. This act contains other special provisions which

it is not necessary to mention here.

It is a general rule, under such provisions as those of sections 20 and 21 of article 4 of the

state constitution, that if a statute be either a special or local law, or both, and comes within

any one or more of the cases enumerated in section 20, such statute is unconstitutional; if thestatute be special or local, or both, but does not come within any of the cases enumerated in

section 20, then its constitutionality depends upon whether a general law can be made

applicable.

Respondent claims that the act of February 28, 1935, is a law for the assessment and

collection of taxes for county purposes; also that said act regulates county EXVLQHVV


business. It seems clear that the act in question is not a law for the assessment and collectionof taxes, as those words are used in said section 20. Gibson v. Mason, 5 Nev. 283, 284, at

pages 304, 305.

If it be conceded that the act is a special or local law, or both special and local, then we

have to consider whether it regulates county business. It will be observed that the

constitutional provision (section 20, art. 4) reads, “regulating” county business, not “relating

to,” “pertaining to,” or “concerning” county business. To regulate is (a) to govern or direct

according to rule (Webster); (b) to adjust, order, or govern by rule, method, or established

mode (Funk & Wagnall); (c) to control, govern, or direct by rule or regulations (Oxford).

These are not the only definitions of this word in the dictionaries cited, but they predominate

there, as elsewhere, and conform to the etymology of the word. The act of February 28, 1935,does not undertake or attempt to lay down a rule to the effect that in Washoe County

proposed bond issues need not, after the passage of the act, be submitted to the electors. It

does not seek to amend, revise, or repeal the act of 1933 hereinbefore mentioned. It is rather

an act intended to meet a particular and peculiar situation, in the nature of or analogous to, an

emergency. The legislature may have believed that quick action was necessary, and that,

failing such speedy action, the proposed project might be lost altogether. Or, there may have

been other reasons why the legislature decided that a general act would not be applicable in



this particular situation. It is difficult to explain the act in any other way, because the

legislature certainly knew of the act of 1933; in fact, it is expressly mentioned and referred to

in the 1935 act.

In Quilici v. Strosnider, 34 Nev. 9, 115 P. 177, 180, this court, holding constitutional the

special act removing the county seat of Lyon County from Dayton to Yerington, said: “The

special act of the legislature may be better justified and sustained on the ground that theemergency and conditions were such as to PDNHSURPSWDFWLRQE\VSHFLDODFWRIWKH OHJLVODWXUHQHFHVVDU\LQRUGHUWRSUHYHQWXQGXHKDUGVKLSXSRQWKHUHVLGHQWVDQG WD[SD\HUVRIWKHFRXQW\ZKLFKXQGHUH[LVWLQJFRQGLWLRQVZRXOGKDYHEHHQFDXVHGE\

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make prompt action by special act of the legislature necessary in order to prevent undue

hardship upon the residents and taxpayers of the county, which under existing conditions

would have been caused by delay in proceeding under the general act. Since the burning of the courthouse a long time has been consumed by resisting removal of the county seat under

the general law and by waiting for the legislature to act at the instance of the members of the

legislature from the county, which has been and is without a proper courthouse or

accommodations for conducting county affairs. If the emergency did not justify this special

act, much more delay might be expected if further proceedings were brought for the removal

under the general act and anticipated resistance made to removal. In the meantime, the county

would continue to be without a courthouse or proper accommodations for enforcing criminal

laws and conducting litigation and county business; or if the county commissioners proceeded

promptly to rebuild or provide a courthouse at Dayton, and by completion an election was

reached under the general act and the county seat removed to Yerington, great andunnecessary expense might be entailed upon the taxpayers. As great an emergency may have

existed for the passage of this special act as for the one moving the county seat of White Pine

County to Ely after the destruction of the courthouse at Hamilton.”

See State ex rel. Clarke v. Irwin, 5 Nev. 111; also 59 C. J. 725, where the author says:

“Where the constitution so provides, a special, private, or local law cannot be made in any

case for which provision has been made by an existing general law, but such provision has no

application to a special, private, or local law passed to meet a particular situation with which

the existing general law does not adequately deal.”

In Evans v. Job, 8 Nev. 322, 333, the court said: “It is evident to our mind that the framers

of the constitution recognized the fact that cases would arise in the ordinary course of

legislation requiring local or special ODZVWREHSDVVHGLQFDVHVZKHUHLQWKHLURSLQLRQD JHQHUDOODZPLJKWEHDSSOLFDEOHWRWKHJHQHUDOVXEMHFWEXWQRWDSSOLFDEOHWRWKHSDUWLFXODU

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laws to be passed, in cases where in their opinion a general law might be applicable to the

general subject but not applicable to the particular case. In other words, that a general law

could not always be so moulded as to meet the exigencies of every case not enumerated in

section 20. Without this right of discrimination the wheels of legislation would often be

materially clogged and the wants and necessities of the people liable to be hampered, and the

relief to which they were otherwise entitled oftentimes necessarily delayed.”See, also, the following cases in other jurisdictions: Manigault v. S. M. Ward & Co. (C.C.)

123 F. 707, at page 717; Common Council of Detroit v. Engel, 202 Mich. 544, 168 N. W.

465; Scarbrough v. Wooten, 23 N. M. 616, 170 P. 743; State v. Bowles, 217 Ala. 458, 116

So. 662; 59 C. J. 725, 726.

An act of the 1871 legislature of this state admitted to probate a will which had no

attesting witnesses, thus dispensing with this requirement. The public administrator of

Ormsby County attacked the constitutionality of this act, claiming, among other things, that

besides being special, it came within one of the enumerated subjects in section 20 of article 4

of the state constitution; namely, “regulating the practice of courts of justice.” The court in Re

Estate of Henry Sticknoth, 7 Nev. 223, 233, held that the act was special, but that it was not

included in the said or any other of the enumerated cases in said section 20.In State ex rel. Clarke v. Irwin, supra, the statute involved was an act creating the county

of White Pine and providing for its organization. The court held that the act was both special

and local, but that it did not come within the enumerated subject “regulating the election of

county and township officers.” It was not even claimed, in this case, that the statue regulated

county business.

In Quilici v. Strosnider, supra, the court recognized the statute (removing county seat) as

being a special law, but held it constitutional, thus showing that it GLGQRWFRQVLGHUWKH V WDWXWHRQHUHJXODWLQJFRXQW\EXVLQHVVRUFRPLQJZLWKLQDQ\RIWKHRWKHUHQXPHUDWHG

FDVHVLQVDLGVHFWLRQ


did not consider the statute one regulating county business, or coming within any of the other

enumerated cases in said section 20. The same is true of Gibson v. Mason, supra (act

authorizing county bond issue to aid railroad); Hess v. Pegg, 7 Nev. 23 (removing county

seat); Evans v. Job, 8 Nev. 322 (local law removing county seat); State ex rel. Rosenstock v.

Swift, 11 Nev. 128, 141 (act incorporating Carson City); State v. Lytton, 31 Nev. 67, 99 P.

855 (act authorizing county bond issue for new courthouse and jail); Russell v. Esmeralda

County, 32 Nev. 304, 107 P. 890 (act to regulate fees, Esmeralda County); and Dotta v.Hesson, 38 Nev. 1, 143 P. 305 (act authorizing county bond issue for new high school

building).

There are other Nevada cases holding, expressly or by implication, that the respective

statutes under consideration did regulate county business. Williams v. Bidleman, 7 Nev. 68

(act for the relief of sheriff of Lander County); Youngs v. Hall, 9 Nev. 212 (acts creating a

fund and providing for redemption of outstanding indebtedness of Esmeralda; note that in this

case the court held that these statutes were neither special nor local); Odd Fellows Bank v.



Quillen, 11 Nev. 109 (act funding the indebtedness of Lincoln County; here also the court

held that the act was neither a special nor local law); State v. Cal. M. Co., 15 Nev. 234 (act to

discontinue litigation touching claims for taxes and penalties); Singleton v. Eureka County,

22 Nev. 91, 35 P. 833 (act authorizing sheriff to appoint night watchman); Schweiss v.

District Court, 23 Nev. 226, 45 P. 289, 34 L. R. A. 602 (act incorporating Storey County);

Thompson v. Turner, 24 Nev. 292, 53 P. 178 (act providing for payment of indebtedness of Lincoln County; held, however, by implication, not to be either a special or local law); Wolf

v. County of Humboldt, 32 Nev. 174, 105 P. 286 (act authorizing county commissioners to

provide for the imprisonment of certain prisoners in branch jail at Lovelock); McDermott v.

County Commissioners, 48 Nev. 93, 227 P. 1014 (act for relief of Andrew McDermott).


The cases cited in the foregoing paragraph furnish the basis for a serious claim that the act

of February 28, 1935, regulates county business, within the meaning of section 20 of article 4of the state constitution. When considered together with the cases previously cited, however,

the court finds itself unable to say, in a case such as this where it is required to pass upon the

validity of an act of the legislative department of the state government, that the said act is

clearly within the enumerated subject “regulating county business.”

5, 6. We are accordingly brought to consider whether a general act is or would be

applicable. Where there is already a general act such as that of March 20, 1933, hereinbefore

mentioned, it is sometimes argued that that fact alone shows that a general act would be

applicable; but such is not the law. In Hess v. Pegg, supra, the court said the inference was the

other way, and that the very passage of the law raises the presumption that the general act was

not and could not be made applicable.

Whether or not a general law is or would be applicable is for this court to decide; but inthe absence of a showing to the contrary, the court seldom goes contra to the very strong

presumption that the legislature has good reason for determining that a general law is not or

would not be applicable in some particular cases. Upon this subject the court in Hess v. Pegg,

supra, had this to say: “For this court to oppose its judgment to that of the legislature,

excepting in a case admitting of no reasonable doubt, would not only be contrary to all

well-considered precedent, but would be an usurpation of legislative functions. It cannot be

denied that the tendency in some states of this Union is that way, undoubtedly from good

motives; but the sooner the people learn that every act of the legislature not found to be in

‘clear, palpable and direct conflict with the written constitution,' must be sustained by the

courts, the sooner they will apply the proper correction to unjust or impolitic legislation, if such there be, in the more careful selection of the members of that branch RIWKHVWDWH JRYHUQPHQWWRZKLFKWKH\KDYHGHOHJDWHGDQGLQZKLFKWKH\KDYHYHVWHGWKHµOHJLVODWLYH

DXWKRULW\RIWKLVVWDWH




of the state government to which they have delegated and in which they have vested the

‘legislative authority' of this state. No court should, and this court will not, step out of the

proper sphere to undo a legislative act; and therein, no court should, and this court will not,

declare any statute void because unconstitutional, without clear warrant therefor.”

If in the case at bar a clear showing had been made that the passage of the act of February

28, 1935, was a mere trick for the purpose of evading the act of March 20, 1933, or that thelegislature's reasons for passing the 1935 act were unsubstantial and purely fanciful, the court

would have had a different situation presented for its consideration; but no such showing

having been made, and the court being unable, after considering the act of February 28, 1935,

and the record in this case, to say that it is clearly satisfied that a general act could be made

applicable, it becomes the duty of the court to abide by the presumption that the legislative

branch of the state government had a reasonable basis for deciding that a general act would

not be applicable, and that it was proper to pass the act of February 28, 1935, in order to meet

the particular and peculiar situation with which it was dealing.

7. Respondent contends that the title of the act of February 28, 1935, does not express one

subject only, and matters properly connected therewith, and further claims that the tile of said

act purports to revise or amend the act of March 20, 1933, by reference to its title only; thusviolating section 17 of article 4 of the state constitution which provides that: “Each law

enacted by the legislature shall embrace but one subject, and matters properly connected

therewith, which subject shall be briefly expressed in the title; and no law shall be revised or

amended by reference to its title only; but, in such case, the act as revised, or section as

amended, shall be reenacted and published at length.” It has already been stated in this

opinion that the court does not take the view that the 1935 act amends or revises the 1933 act.

The court is further RIWKHRSLQLRQWKDWWKHWLWOHWRWKHDFWFRPSOLHVZLWKWKH

SURYLVLRQVRIVDLGVHFWLRQRIDUWLFOH


of the opinion that the title to the 1935 act complies with the provisions of said section 17 of

article 4.

The other matters referred to by respondent in his brief are covered by what has already

been said in this opinion.

The court finds it impossible to say that the act of February 28, 1935, is beyond a

reasonable doubt, unconstitutional, and must therefore decline to hold it so.

The order directing issuance of a peremptory writ of mandamus has heretofore been made

and entered, and this opinion is now filed pursuant to stipulation of counsel.

____________

ÐÐÐÐ56 Nev. 123, 123 (1935) Boyd v. HoughÐÐÐÐ

BOYD v. HOUGH (Roberts Mining & Milling



Company, Intervener)

No. 3099

July 8, 1935. 47 P. (2d) 381.

1. Exceptions, Bill Of.Where notice of intention to move for new trial was not made in time, trial court properly refused to

settle tendered bill of exceptions after denying motion for new trial, since under statutes a new trial could

not have been granted (Supreme Court Rule 2; Comp. Laws 1929, secs. 8879, 8884).

2. Appeal and Error.Where notice of intention to move for a new trial was not made in time, supreme court would not

remand proposed bill of exceptions for settlement, since such order would avail appellant nothing.

3. Exceptions, Bill Of.Where time for filing transcript on appeal had been by order of supreme court extended to 30 days

after bill of exceptions was settled, order was vacated when it was shown that, because motion for new

trial had not been made in time, new trial could not be granted so that there could be no bill of exceptions

(Comp. Laws 1929, secs. 8879, 8884).


Action by James T. Boyd against M. J. Hough, wherein the Roberts Mining & Milling

Company intervened. From a judgment for plaintiff, the intervener DSSHDOV


appeals. On motions by James T. Boyd to set aside order extending time for appellant to filerecord on appeal and to strike from records of the court the record on appeal and alleged bill

of exceptions, and to dismiss the appeal. Motions granted.

Hawkins, Mayotte & Hawkins, for Appellant:

It is respectfully submitted that respondents's “Motion to Set Aside Order Extending

Time” should be denied, on the authority of American Sodium Co. v. Shelley, 50 Nev. 416,

264 P. 980, and 51 Nev. 26, 267 P. 497.

It will be observed that the “Objections to Proposed Bill of Exceptions,” filed by plaintiff

in the lower court, not only totally fails to “specifically” point out, but fails to even call in

question, that the bill of exceptions does not state the true facts, or omits any material fact

necessary to explain or make clear any ruling, decision or action of the court, as required by

sec. 9386 N. C. L., and that the same should not have been considered by the trial court, in

view of the decisions of the supreme court in the cases of State v. District Court, 51 Nev. 412,

278 P. 363, and State ex rel. Cappurro v. District Court, 54 Nev. 371, 17 P. (2d) 695.

The motion of respondent to dismiss the appeal from the judgment, upon the ground that

the record on appeal from said judgment was not filed in this court within thirty days after the

appeal had been perfected, should be denied because of the provisions contained in the



“Order Extending Time for Filing Transcript of Record on Appeal from Judgment,” giving

appellant thirty days' time after the bill of exceptions concerning its motion for a new trial had

been settled. Since no bill of exceptions has been settled, intervener is not in default in filing

the record on appeal because of said order extending the time.

It will be observed by the court that all the papers enumerated and moved by respondent to

be stricken are certified by the county clerk; hence we submit that the motion to strike thepapers enumerated should be denied.


As to respondent's motion to strike the bill of exceptions, it will be observed from said bill

of exceptions and record on appeal that portions thereof constitute the transcript of

proceedings had and evidence offered and admitted upon the trial, and transcript of

proceedings had and evidence offered upon the hearing of the motion for a new trial, all of

which are certified by the court reporter.Appellant's motion, made this day in open court, that the bill of exceptions and record on

appeal be remanded to the district court, in order that proper proceedings, by mandamus, may

be instituted to require the judge of the trial court to settle said bill of exceptions, should be

granted.

James T. Boyd, for Respondents, did not file a written brief.

OPINION


This case is now before the court on two motions of respondent Boyd, one to set aside anorder entered by this court on January 2, 1935, extending the time of appellant within which

to file its record on appeal, including the judgment roll and bill of exceptions, to and

including thirty days after the bill of exceptions has been settled, and the other to strike from

the files and records of this court the record on appeal and alleged bill of exceptions in the

above-entitled cause and to dismiss the appeal.

It appears from the so-called record on appeal that judgment was rendered in favor of

respondent on June 28, 1934, of which written notice was given on June 29, 1934. Notice of

intention to move for a new trial was served and filed on December 12, 1934. On December

31, 1934, the court denied the motion for a new trial, upon the ground that appellant's notice

of intention to move for a new trial was not VHUYHGDQGILOHGZLWKLQWKHWLPHDOORZHGE\ODZ


served and filed within the time allowed by law. On December 8, 1934, appellant perfected

its appeal from a part of the judgment of June 28, and on January 11, 1935, perfected its

appeal from the order denying its motion for a new trial. On March 14, 1935, the trial court



refused to settle the proposed bill of exceptions.

The purpose of a motion for a new trial is twofold: First, to obtain such new trial; and,

secondly, in the case of its denial, to enable this court, on appeal from an order denying such

a motion to review the evidence introduced upon the trial upon the merits. Rule II of this

court provides that the transcript of the record on appeal in a case appealed to this court shall

be filed within thirty days after the appeal has been perfected, and a bill of exceptions, if therebe one, has been settled. On January 2, 1935, a petition was filed in this court reciting the

judgment of June 28, 1934; that an appeal had been perfected therefrom on December 8,

1934; that notice of intention to move for a new trial had been made by respondent, and

denied on December 31, 1934. Upon this showing appellant asked that the time for filing the

transcript on appeal be extended to and including thirty days after the bill of exceptions in the

case be settled. The order of January 2 was made accordingly.

1. In view of the fact that section 8884 N. C. L. provides that where the appeal is based

upon the ground that the evidence is insufficient to justify the verdict or decision of the court,

a motion for a new trial must be made and determined before the appeal is taken, and the

further fact that section 8879 N. C. L. provides that when a new trial is sought from a

decision of the court the party seeking it must file and serve his notice of intention within tendays after written notice of the decision, and the additional fact that the notice of intention to

move for a new trial was not served and filed within the time required by law, the motion for

a new trial could not be made at all; hence the trial court was justif ied in refusing to VHWWOH WKHWHQGHUHGELOORIH[FHSWLRQV


settle the tendered bill of exceptions. In the circumstances, if we do not vacate the order of

January 2 respondent can never enforce his judgment.2. Counsel for appellant contends that we should remand the proposed bill of exceptions

for settlement, and during the argument made a motion to that effect. We know of no

authority to make such an order, but the notice of intention to move for a new trial coming

too late, such an order would avail appellant nothing; hence his motion must be denied. Had

the tendered bill of exceptions been properly settled, we could, on motion and showing,

remand it for correction and amendment. Brockman v. Ullom, 52 Nev. 267, 286 P. 417.

3. The order of January 2, 1935, extending the time in which to file a transcript of the

record on appeal, should be vacated, effective as of this date, in view of the fact that there is

no bill of exceptions in the case, and the further fact that there can be none.

There being no record which the court can consider, it follows that the so-called bill of exceptions and record on appeal should be stricken. It naturally follows that both of the

appeals should be dismissed.

It is ordered that the order of January 2, 1935, be and is hereby vacated; that the so-called

bill of exceptions and record on appeal be stricken from the files; and that both of the appeals

be and are hereby dismissed. Remittitur to issue instanter.

____________




STATE Ex Rel. ROBERTS MINING & MILLING COMPANY v. SECOND JUDICIAL

DISTRICT COURT, in and for Washoe County, Et Al.

No. 3120

July 8, 1935. 47 P. (2d) 383.

Exceptions, Bill Of.

Refusal of court to settle bill of exceptions held proper, where notice of intention to move for new

trial for insufficiency of evidence was not timely filed, in view of rule that courts do not decide moot

questions, nor order doing of vain things (Comp. Laws 1929, secs. 8879, 8884).

Original proceeding in mandamus by the State of Nevada, on the relation of the Roberts

Mining & Milling Company, against the Second Judicial District Court of the State of Nevada in and for the County of Washoe, and the Honorable B. F. Curler, as Judge of said

court. Proceeding dismissed.

Hawkins, Mayotte & Hawkins, for Petitioner and Relator:

From the record before the court it appears: (1) That no party, within the time specified in

sec. 9386 N. C. L., or at any time, served and filed any “statement specifically pointing out

wherein said bill does not state the true facts, or wherein the same omits any material fact

necessary to explain or make clear any ruling, decision, or action of the court,” as required by

said sec. 9386 N. C. L. (2) That the trial court, upon the hearing of the objections filed, did

not “designate in what respect said bill is incorrect or untrue, or fails or omits to state the true

facts,” as authorized by said sec. 9386 N. C. L., because said bill of exceptions was correct

and contained all the record in said action then pending in said district court. (3) That, under

such circumstances, it was the plain duty of the respondent, Hon. B. F. Curler, as judge of

said respondent district court, to settle and allow said bill of exceptions, as specifically

enjoined upon said respondent in said sec. 9386 N. C. L., and as decided by this court in State

ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363.


See, also: State ex rel. Capurro v. District Court, 54 Nev. 371, 17 P. (2d) 695; State ex rel.

Beach v. District Court, 53 Nev. 444, 5 P. (2d) 535.

James T. Boyd, for Respondents:

Before the notice of intention to move for a new trial had been served and filed, the

Roberts Mining & Milling Company had perfected its appeal from the judgment. By so doing

it had waived its motion for a new trial. That waiver also would preclude the court from



hearing or determining the motion for a new trial or from settling the bill of exceptions. Sec.

8884 N. C. L.; Gill v. Goldfield Con. M. Co., 43 Nev. 1, 176 P. 784.

Under our procedure the right for a new trial is initiated by a notice of intention to move

for a new trial, served and filed within ten days after written notice of the decision. The ten

days mentioned is in the nature of a limitation of the right, and unless it is served within time,

the court's jurisdiction of the matter is gone. The district court in this instance never acquired jurisdiction to pass on or determine the motion for a new trial. 46 C. J., p. 295, sec. 263.

OPINION


This is an original proceeding in mandamus. The salient allegations in the petition are that

the petitioner became an intervener in the case of Boyd v. Hough, pending in the Second

judicial court in and for Washoe County, Nevada, wherein judgment was rendered in favor of

the plaintiff; that petitioner caused to be served upon the plaintiff in said action its “Notice of

Intention to Move for a New Trial,” upon the ground, among others, of insufficiency of the

evidence to justify the decision; that thereafter said petitioner made its motion in accordancewith its notice of motion, and that the hearing upon said motion was continued from time WR WLPHXQWLO'HFHPEHUDWZKLFKWLPHLWZDVDUJXHGVXEPLWWHGDQGGHQLHGE\WKH FRXUWWKDWWKHUHDIWHURQ-DQXDU\WKHSHWLWLRQHUSHUIHFWHGLWVDSSHDOWRWKH VXSUHPHFRXUWIURPWKHRUGHUGHQ\LQJLWVVDLGPRWLRQIRUDQHZWULDOWKDWWKHUHDIWHUDQG RQ-DQXDU\SHWLWLRQHUILOHGLWVFHUWDLQ³%LOORI([FHSWLRQVRI,QWHUYHQRU´LQVDLG

DFWLRQDQGRQWKHVDPHGDWHVHUYHGXSRQ-DPHV7


to time until December 31, 1934, at which time it was argued, submitted, and denied by the

court; that thereafter, on January 11, 1935, the petitioner perfected its appeal to the supreme

court from the order denying its said motion for a new trial; that thereafter and on January 15,

1935, petitioner filed its certain “Bill of Exceptions of Intervenor” in said action, and on the

same date served upon James T. Boyd, plaintiff in said action, said “Bill of Exceptions of

Intervenor”; that said “Bill of Exceptions” included all of the papers making up the judgment

roll, and the proceedings had, the evidence, oral and documentary, offered upon the hearing

upon the merits of said action, certified by the court reporter, and all papers filed and all

proceedings had concerning intervener's motion for a new trial; that said bill of exceptions

was correct and contained the substance of the proceedings relating to the points involved.

The petition further alleges that on or about January 18, 1935, the said Boyd served uponpetitioner, the intervener in said action, and filed in said action his “Objections to Proposed

Bill of Exceptions”; that thereafter said objections came on to be heard, whereupon counsel

for intervener objected to the consideration of said “Objections to Proposed Bill of

Exceptions,” upon the grounds and for the reasons that said objections were insufficient to

authorize the court to hear the same, in that they did not comply with section 9386 or section

9388 N. C. L., in that they did not specifically, or at all, point “out wherein said bill does not

state the true facts, or wherein the same omits any material fact necessary to explain or make



clear any ruling, decision, or action of the court,” or that there was any error therein, and that

said Boyd had no right to be heard upon said objections.

It is further alleged that said objections so made on behalf of the intervener were

overruled, and that said “Objections to Proposed Bill of Exceptions” were heard and

thereafter the court made and entered an order that said “objections to the bill of exceptions

as a whole VKRXOGEHVXVWDLQHGDQGWKHFRXUWUHIXVHVWRVHWWOHWKHSURSRVHGELOORI H[FHSWLRQVLQWKLVFDVH´

ÐÐÐÐ

56 Nev. 128, 131 (1935) State v. District CourtÐÐÐÐ

should be sustained; and the court refuses to settle the proposed bill of exceptions in this

case.”

The respondent filed its answer to the petition, wherein it is alleged that on June 28, 1934,

judgment was rendered in the case of Boyd v. Hough, as defendant, and the petitioner herein

as intervener; that on June 29, 1934, written notice of decision was served upon the residentagent of the intervener in said action, petitioner herein; that on the 12th of December, 1934,

notice of intention to move for a new trial was served upon plaintiff in said action; that on

January 15, 1935, said intervener filed its proposed bill of exceptions; that the matter was

submitted to the court on February 13, 1935, upon said plaintiff's objections to said proposed

bill of exceptions; and that the court held that the right to a new trial had been waived, in that

its notice of intention to move for a new trial was filed too late.

It is further alleged in said answer that the petitioner filed its proposed bill of exceptions

and record on appeal in the supreme court, on an appeal from said order denying intervener's

motion for new trial in said suit of Boyd v. Hough, certified to by the clerk of the court, and

that it thereby waived its right to have the same settled and allowed, and is not now entitled to

complain.This matter was submitted upon the petition, answer, and the proposed bill of exceptions

in the case of Boyd v. Hough, 56 Nev. 123, 47 P. (2d) 381, this day decided.

It will be noted that the petition herein carefully avoids giving the date of any action taken

in the case of Boyd v. Hough prior to date of the argument of intervener's motion for a new

trial, but it appears from respondent's answer herein, as it does from intervener's proposed bill

of exceptions, that the judgment was rendered against intervener in the case of Boyd v.

Hough on June 28, 1934. It also appears from the answer herein and said proposed bill of

exceptions that written notice of the decision in said matter was served on intervener on June

29, 1934, and that the notice of motion for new trial was not given within ten days WKHUHDIWHU

DVUHTXLUHGE\ODZDQGWKDWVXFKIDLOXUHZDVWKHUHDVRQDVVLJQHGE\WKHWULDOFRXUWIRU GHQ\LQJWKHLQWHUYHQHUVPRWLRQIRUDQHZWULDO




thereafter, as required by law, and that such failure was the reason assigned by the trial court

for denying the intervener's motion for a new trial.

Pursuant to section 8884 N. C. L., where the appeal is based upon the ground that the

evidence is insufficient to justify the verdict or decision of the court, a motion for a new trial

must be made and determined before the appeal is taken; and pursuant to section 8879 N. C.

L. when a new trial is sought from a decision of the court the party seeking it must file andserve his notice of intention within ten days after written notice of the decision. The notice of

intention to move for a new trial not having been served and filed within the time required by

law, it could not be considered by the court. It is a well-known rule that courts do not decide

moot questions (Ex parte Ming, 42 Nev. 472, 181 P. 319, 6 A. L. R. (1216) nor order the

doing of vain things; hence the refusal of the court to settle the bill of exceptions, as tendered,

was right.

It is ordered that the petition be denied, and that these proceedings be dismissed, at cost of

petitioner.

____________

ÐÐÐÐ56 Nev. 133, 133 (1935) State v. Carson Valley Bank; State v. United BankÐÐÐÐ

STATE Et Al. v. CARSON VALLEY BANK Et Al.

STATE Et Al. v. UNITED NEVADA BANK Et Al.

Nos. 3105, 3106

July 10, 1935. 47 P. (2d) 384.

1. Evidence.Supreme court takes judicial notice that since deposits of funds belonging to state insurance fund were

made at bank, state treasurer, governor, and personnel of industrial commission and industrial

commission board have from time to time been changed.

2. State.State can only act through its duly elected and appointed officers, and their actions when authorized

by law constitute actions of state.

3. Statutes.Supreme court must give meaning to all words used in statute.

4. Banks and Banking.

Deposits in insolvent banks of money belonging to state insurance fund held not entitled to preferencein payment where statute required only that such deposit be “special time deposit” bearing interest and

secured by surety bond, and did not provide that bank should hold deposit as trust fund, that it should be

preferred claim, or that state would exercise a “sovereign right” of preference, since deposits were not

“special deposits,” as designated in certificates of deposit issued by bank, but were “general deposits”

(Stats. 1913, c. 111, sec. 40, as amended by Stats. 1915, c. 190, sec. 12, and by Stats. 1919, c. 176, sec.

7).

There are but two kinds of bank deposits, “special” and “general.” A “special” deposit is one

in which funds are deposited for a special purpose and the identical funds returned to the depositor



or paid to other particular persons designated by the depositor and the relation of bailee and bailor

arises between the bank and the depositor and not the relation of debtor and creditor; all other

deposits are general and between the bank and its depositor the relation of debtor and creditor

exists with no preference of payment to creditor. Use of the word “time” in Stats. 1913, c. 111,

sec. 40, as amended by Stats. 1915, c. 190, sec. 12, authorizing deposit of state insurance fund on

special time deposits, means that the deposit is to be made for some period of time.

5. Banks and Banking.Exceptions to rule that deposit will be treated as general exist only where identical money deposited is

to be returned, where deposit is to be used for specific purpose or where deposit is wrongful or unlawful.


6. Banks and Banking.Deposits in insolvent banks were not special deposits entitled to preference in payment because

certificates of deposit so designated them, but their true character must be found in acts and intentions of

parties.

7. Banks and Banking.Deposit of money belonging to state insurance fund which was carried in name of industrial

commission to clear premium checks which state treasurer could not receive in such form held not

unlawful, so as to create trust fund in favor of state entitled to preference in payment from assets of

insolvent bank, on ground money should have been turned over to state treasurer, where statute did not

require immediate payment of such funds to state treasurer, times shown for retention were not

unreasonable, deposit was secured by surety bond, and state officers took no action to disapprove such

course by removing members of commission (Stats. 1913, c. 111, sec. 8, as amended by Stats. 1915, c.

190, sec. 3; sec. 24; sec. 40, as amended by Stats. 1919, c. 176, sec. 7; sec. 40 1/2, as added by Stats.

1917, c. 233, sec. 10; Stats. 1931, c. 50, sec. 558g, subsec. 15).

8. Banks and Banking.Deposit in name of industrial commission of money belonging to state insurance fund which was

working fund deposited for convenience and used for payment of minor items held not unlawful so as tocreate a trust fund in favor of state entitled to preference in payment from assets of insolvent bank, where

deposit while not authorized by law was not prohibited by law and had been so used for many years with

knowledge and approval of all parties concerned in administration of industrial insurance act (Stats.

1913, c. 111, sec. 8, as mended by States. 1915, c. 190, sec. 3; sec. 24; sec. 40, as mended by Stats. 1919,

c. 176, sec. 7; sec. 40 1/2, as added by Stats. 1917, c. 233, sec. 10; Stats. 1931, c. 50, sec. 558g, subsec.

15).

____________________

See, also, 55 Nev. 26, 23 P. (2d) 1105.


Actions by the State and another against the Carson Valley Bank and others, and against

the United Nevada Bank and others, as consolidated, wherein Leo F. Schmitt, as receiver of

each of such banks, was substituted as successor to defendants. From a decree for defendant,

plaintiffs appeal. Affirmed.

Gray Mashburn, Attorney-General, and George L. Sanford, for Appellants:



An unauthorized deposit, with the knowledge of the EDQNUHFHLYLQJVDPHLVKHOGLQWUXVW

DQGPD\EHUHVFLQGHGE\WKHRZQHUDQGUHFRYHUHG


bank receiving same, is held in trust and may be rescinded by the owner and recovered.

Uniform Fiduciaries Act, sec. 9 (sec. 2993 N. C. L.). While not expressly declared void, as

was explained in Organ et al. v. Winnemucca State Bank et al., 55 Nev. 72, 26 P. (2d) 237,

and Leach v. Armstrong, 52 Nev. 125, 283 P. 396, the deposits made by the commission were

clearly unauthorized, either as general or special deposits, and relief can be had on this

showing, whether the state appears to be transacting business or administering government.

Leach v. Armstrong supra.

An unauthorized deposit never becomes a general deposit. It may be recinded and

denounced and recovered back by the owner in full. Patek v. Patek (Mich.), 131 N. W. 1101;

35 L. R. A. (N. S.) 461, and notes; Andrews v. Farmers Trust Co. (Mo. App.), 21 S. W. (2d)641.

A purported deposit by a fiduciary, without authority of law, or contrary to law and

without the consent of the owner, express or implied, and to the knowledge of the bank, is

taken out of the category of a general deposit and becomes a special deposit and trust fund to

be rescinded, denounced, and recovered back in full by the owner. Yellowstone County v.

First Trust & Savings Bank (Mont.), 128 P. 596; Brogan v. Kreipe (Kans.) 227 P. 261;

Tooele County Board of Education v. Hadlock (Utah), 11 P. (2d) 320-329; Allen v. United

States (C. C. A. 1st), 285 Fed. 678; State v. Thum (Ida.) 55 P. 858; State v. Bruce (Ida.), 102

P. 831; Montgomery v. Sparks (Ala.), 142 So. 769; State v. Ross (Ore.), 104 P. 596-600; Re

Fidelity State Bank (Ida.), 209 P. 449; Leach v. Farmers Sav. Bank (Iowa), 216 N. W. 748;

Tucker v. Newcomb (C. C. A. 4th), 67 Fed. (2d) 177; Compton v. Farmers Bank, 279 S. W.746; Zydek v. First State Bank of Wilkeson (Wash.), 30 P. (2d) 654; American Surety Co. v.

Jackson ( C. C. A. 9th), 24 Fed. (2d) 768; Board of Township Trustees, etc., v. Gray, 47 Ohio

App. 216, 191 N. E. 802; State ex rel. Gentry v. Page Bank, 14 S. W. (2d) 597.

A bank is charged with notice of a public statute as WRDXWKRULW\WRPDNHDGHSRVLW


to authority to make a deposit. State ex rel. Gentry v. Page Bank, supra.

A deposit wrongfully made, with the bank's knowledge, creates a trust. State v. Ross,supra.

A contract of deposit is governed by the law existing at the time it is made. State v. Ross,

supra; In re Fidelity State Bank, supra; Cochrane v. Pacific States Life Ins. Co. (Colo.), 27 P.

(2d) 196.

When the state is the owner, an unauthorized deposit is not converted into an authorized

general deposit by reason of any practice or construction of the governing law by any officer,



agency of the state, or commission, when the law is not doubtful. There is no estoppel. The

evidence does not show any knowledge or ratification of any purported general deposits made

by the commission in the Carson Valley bank, by the state or any officer of the state. The

treasurer and the governor had nothing to do with them. The commission is not a part of the

state government. Only when a doubt exists as to the proper construction of a statute will

courts give weight to the construction placed thereon by coordinate branches of thegovernment. State v. Brodigan, 35 Nev. 35 at 39, 136 P. 680-682; State v. Claypool (Ore.), 28

P. (2d) 882; State v. Davies (Wash.), 28 P. (2d) 322-326; Austin v. Barrett (Ariz.), 16 P. (2d)

12-14.

An express contract, governed by law and referring to specific law, setting out and

referring to a specific purpose, identifying the subject matter as a trust fund and stating, or by

reference to law disclosing, the powers of or limitations upon the depositors, distinguishes the

deposit from a general deposit. These principles apply in the disjunctive as well as in the

conjunctive. A general deposit represents the general rule. All other deposits are exceptions to

the general rule. Michie on Banks and Banking, vol. V, pp. 624, 625; Montana-Dakota Power

Co. v. Johnson (Mont.), 23 P. (2d) 956-958; Pethybridge v. First State Bank (Mont.), 243 P.

569, syllabus 2; McStay Supply Co. v. Stoddard, 35 1HY3&-

%DQNVDQG%DQNLQ JS


Nev. 284, 297, 132 P. 545; 7 C. J. (Banks and Banking), p. 630, sec. 306, p. 631, sec. 307;

City of Sturgis v. Meade County Bank (S. Dak.), 161 N. W. 327; Gray v. Elliott (Wyo.), 257

P. 345; Hitt Fireworks Co. v. Scandinavian-American Bank (Wash.), 195 P. 13-15, 196 P.

629; 3 R. C. L., “Banks,” 517; 26 R. C. L. 1237-1238.

Platt & Sinai, for Respondents:

It needs no special evidence, aside from the fact that the funds were deposited, to draw the

indisputable inference and implication that by law and practice these funds were always

understood between the state and the bank to be general deposits. In the first place, in

accordance with the law under which the deposits were made, the bank was obligated to pay

interest. If the deposit were segregated and set aside as a special deposit, not only would the

bank have had no opportunity to invest it, but it could not possibly, as a matter of business,

pay any interest on it. The conclusion at once is irresistible that the funds were intended to be

mingled along with the funds of other depositors, to be used by the bank as it saw fit. If this

were not the understanding, the bank could not possibly have obligated itself to pay anyinterest at all. This was undoubtedly in contemplation of the lawmakers when they enacted

the legislation authorizing the industrial commission to make the deposits. The act

characterized the nature of the deposits, but by the very terms of the act practically each of

these deposits contemplated a specified interest-bearing percentage. No law of this character

could be enacted without disclosing an intention upon the part of the legislators that the

deposits were to be general, and that the bank was to have the use of the funds deposited in

order to make the interest payments fixed by law. Aside from the interest-bearing features of



the statute (sec. 2721 N. C. L.), which would require a bank to commingle the funds with

other deposits and invest the same in order to pay interest, it is evident IURPWKLVDQGRWKHU VWDWHOHJLVODWLRQWKDWWKHSRO LF\RIWKHVWDWHZLWKUHVSHFWWRPRQH\VLQWKHVWDWHWUHDVXU\ LVDQGKDVEHHQWRFDWHUWRWKHEDQNVDQGSHUPLWWKHPWRXVHFHUWDLQRIWKHVWDWHV

PRQH\IRULQYHVWPHQWRUVXFKEHQHILWVDVPD\FRPHWRWKHP


from this and other state legislation that the policy of the state with respect to moneys in the

state treasury is, and has been, to cater to the banks and permit them to use certain of the

state's money for investment or such benefits as may come to them. In fact, the legislature of

Nevada has gone so far as to enact a statute authorizing the state treasurer to deposit in open

accounts and subject to check without notice. Sec. 7030 N. C. L. While these deposits on

open account may only be made through the written consent and approval of the state board

of examiners, and while all funds deposited must be secured by good and sufficient bonds, yet

it is very evident that not only general legislation, but specific legislation affecting anyparticular fund, contemplated that the bank should have the use of the state's money as

provided by statute, that the bank should pay interest to the state for the money used, and that

in no instance, either through general or specific legislation, was the state treasurer, as

custodian of the state's funds, commanded and unequivocally directed to open special

accounts.

The exaction by the state of a surety bond covering the deposit of its funds is a waiver by

the state of whatever sovereign prerogative to payment ahead of other depositors the state

might have had. Maryland Casualty Co. v. Rainwater, 291 S. W. 1003, 51 A. L. R. 1332;

National Surety Co. v. Pixton (Utah), 24 A. L. R. 1486, at 1494; In re Central Bank of Wilcox

(Ariz.), 205 P. 915; Smith v. Arnold, 165 Ky. 214, 176 S. W. 983; National Surety Co. v.Morris (Wyo.), 42 A. L. R. 1290, at 1296. And, as conclusive on this contention, see State et

al. v. Carson Valley Bank, 55 Nev. 26, 23 P. (2d) 1105.

In addition to the authorities hereinabove cited, under the great weight of authority, the

deposits in controversy in both cases were general deposits and not special. 7 C. J., secs. 628,

630; Michie on Banks and Banking, vol. 3, p. 253, sec. 184; Keys v. Paducah & I. R.

Company, 61 Fed. (2d) 611, 86 A. L. R. 203.

Further, the “custom of banks,” of which the court takes judicial notice, establishes that

the deposits were JHQHUDODQGQRWSUHIHUUHG


general and not preferred. Montana-Dakota Power Co. v. Johnson, 23 P. (2d) 956.

It is immaterial what appellants or the commission or the state treasurer may call or name

the agreement entered into with the banks, as the controlling principle is as to how the

commission or state treasurer and the banks, together with the state authorities, treated the

contractual relation. Stockton Savings & Loan Soc. v. Purvis, 44 P. 561; Page on Contracts,



vol. 4, p. 3524. The intention of the parties, gathered from the manner in which the parties

treated the deposits and accounts for a long number of years, establishes conclusively that the

word “special” was not employed in the agreements for the purpose of segregating and

separating and not commingling the moneys in the accounts and deposits to establish them as

strictly special accounts.

OPINION

By the Court, Lockhart, District Judge:

This is an appeal from a decree in two cases brought in the First judicial district court of

the State of Nevada, in and for the county of Ormsby, one case being State of Nevada and

George B. Russell, as state treasurer of the State of Nevada, plaintiffs, against Carson Valley

bank, a Nevada banking corporation, and E. J. Seaborn, as superintendent of banks of the

State of Nevada, and J. H. Stern, S. C. Durkee, and S. C. Bigelow, for themselves and other

depositors in said bank similarly situated, defendants, the other case being the same plaintiffs

against United Nevada bank, a Nevada banking corporation, and E. J. Seaborn, as

superintendent of banks of the State of Nevada, and John Granata and Robert M. Price, forthemselves and all other depositors in said bank similarly situated, defendants; thereafter in

both actions Leo F. Schmitt, as receiver of each of said banks, was substituted as successor to

the defendants.


These actions were joined upon the trial and by and through stipulation were also joined

upon the appeal.

Upon the oral argument in this court, the appellants expressly disclaimed any right of preference for these amounts or either of them by reason of the sovereign right of the State of

Nevada to claim such preference right, but contends that the $65,000 is entitled to preference

as special and/or specific deposits, and the $119,747.64 as a trust fund and entitled to

preference.

All these funds were moneys collected by the Nevada industrial commission in the course

of its activities as such under the laws of this state known as the Nevada industrial insurance

act and belonged to what, under the law, is known as state insurance fund.

We first consider the deposits amounting to $65,000 and later will consider the other

deposits of $119,747.64.

Four deposits of various amounts aggregating $55,000 had been made by the statetreasurer of Nevada in the Carson Valley bank upon what were called, one “a special

deposit,” and three “special deposits” all bearing interest at 3 percent per annum. As each of

these deposits were made, county and municipal bonds of certain taxing units of Nevada were

deposited by the Carson Valley bank with the state treasurer as security for the return and

repayment of such deposits to the state treasurer, the first one at the end of a period of six

months, the other three upon written demand.

All these deposits were made pursuant to an order of the Nevada industrial commission



and pursuant to section 40 of the Nevada industrial insurance act (Stats. 1913, c. 111, sec. 40,

as amended by Stats. 1915, c. 190, sec. 12), except that whereas said section 40 required “a

good and sufficient surety deposit bond,” the county and municipal bonds were deposited

with the state treasurer instead; at a later date and subsequent to all these deposits, “surety

deposit bonds” were furnished by the bank to the state treasurer and the said county and

municipal bonds were returned to the bank.The bank closed its doors, finally landed in the hands of receiver Schmitt, the present

defendant herein, and WKHVXUHW\ERQGRUERQGVJLYHQDUHZRUWKOHVVRQDFFRXQWRIWKH

LQVROYHQF\RIWKHVXUHW\FRPSDQ\


the surety bond or bonds given are worthless on account of the insolvency of the surety

company.

As to the United Nevada bank transaction, the state treasurer deposited $10,000 as a“special time deposit” for the period of one year or until demand is made therefor, under an

order of the Nevada industrial commission based upon the bank giving a surety bond of the

Nevada Surety & Bonding Company and pursuant to said section 40 of the insurance act, as

amended by Stats. 1919, c. 176, sec. 7. The bank was to pay 4 percent per annum upon this

deposit. At the time of this deposit, a written agreement was entered into between the bank

and the Nevada industrial commission in which this deposit was designated a “time loan for

the period of one year from date, or at any date thereafter on demand of the Nevada industrial

commission.”

The Nevada Surety & Bonding Company giving the above bond is now insolvent, and the

bank is now in the hands of the defendant receiver.

All these deposits stand on the same footing and will be all treated together.Interest was paid upon these deposits as stipulated at each interest payment date until the

banks were closed.

Demand has been made upon the banks since they have been in the hands of the

superintendent of banks and the receiver for the return of all said funds so deposited and that

each of said deposits be treated and held to be special deposits to be paid in full, but they have

been denied as special deposits and accorded only the status of general deposits.

Suits were brought in the proper district court to have these deposits declared special

deposits and entitled to preference and paid in full. Decree was for the defendant, and from

this decree, this appeal was taken.

If the contention of plaintiffs is right, the entire sums deposited become preferred claimswith preference over all general claims and entitled to first payment from the assets of the

banks.

There are but two kinds of bank deposits, special and JHQHUDO




general. A special deposit is one in which funds are deposited for a special purpose and the

identical funds returned to the depositor or paid to other particular persons designated by the

depositor and the relation of bailee and bailor arises between the bank and the depositor and

not the relation of debtor and creditor; all other deposits are general and between the bank and

its depositor the relation of debtor and creditor exists with no preference of payment to the

creditor.

These deposits were made many years ago, those in the Carson Valley bank being made in

July, 1915; August, 1916; July, 1917; and August, 1917, and that in the United Nevada bank

in June, 1930.

The Carson Valley bank deposits draw interest at 3 percent per annum and the United

Nevada bank deposits draw interest at 4 percent per annum.

There is no contention and no question raised that any of these deposits were illegal or

unauthorized, and they appear to have been made in accordance with the law in force and

effect at that time, the question being, Were they special deposits as designated in the

certificates of deposit issued by the banks at the time the deposits were made?

Section 8 of the Nevada industrial insurance act, as amended by Stats. 1915, c. 190, sec. 3,provides that on and after April 1, 1915, the administration of the act was imposed upon the

Nevada industrial commission, consisting of three members appointed by the industrial

commission board, which is and was composed as follows: The governor, attorney-general,

and inspector of mines.

Section 40 1/2 of that act, as added by Stats. 1917, c. 233, sec. 10, makes it the duty of the

industrial commission board to make an audit of all books of account and records and of the

funds of the Nevada industrial commission annually or as often as they may deem necessary.

1-5. This court will take judicial notice that since at least the deposits were made in the

Carson Valley EDQNWKHVWDWHWUHDVXUHUWKHJRYHUQRUDQGWKHSHUVRQQHORIWKH1HYDGD LQGXVWULDOFRPPLVVLRQDQGWKHLQGXV WULDOFRPPLVVLRQERDUGKDYHIURPWLPHWRWLPHEHHQ

FKDQJHGDQGRWKHUVKDYHWDNHQWKHSODFHRIWKRVHUHWLULQJ


bank, the state treasurer, the governor, and the personnel of the Nevada industrial commission

and the industrial commission board have from time to time been changed and others have

taken the place of those retiring.

These deposits, however, have remained unchanged and the interest thereon as designated

in the certificates of deposit has been paid to and received by the state insurance fund officers

having the care and custody of that fund.

The state can only act through its duly elected and appointed of ficers and their actions

when authorized by law constitute the actions of the state. Those officers know and must be

charged with the knowledge of these deposits as in the performance of their duties they must

have investigated where the state funds were kept and secured.

The Carson Valley bank deposits of the funds in question were first secured by bonds and

later they were withdrawn and surety bonds given in lieu thereof.



Banks may give security for deposits only when by law they are expressly permitted to do

so and at the present time national banks can only give security for deposits in those states

whose laws permit state banks to do so.

The laws of Nevada require all banks, both state and national, to give security for all state

and all such public deposits.

This security is not that the identical money shall be returned when it shall be demanded,but that repayment shall be made upon demand and without loss to the state or other public

depositors.

The law requires that interest shall be paid on such deposits and it is not to be conceived

that the law would require the payment of interest upon dead funds lying idle year after year

in the bank with no chance for the bank to make an investment sufficient to earn such

interest. The security is to guard against bad investments which may endanger the safety of

the deposit.


It always has been the policy of governments to keep money in circulation rather than to

have it hoarded and kept out of circulation.

The contention is made that these deposits were made for a special purpose, the payment

of claims of those injured in the industrial pursuits of the state. That is true in that all funds

belong to the state insurance fund created and are collected for that purpose.

All these deposits, with the single exception of the United Nevada bank deposit, were

made under the 1915 session amendment, chapter 190, section 40, subsection (c), which reads

as follows: “The state treasurer may, upon written authority of the Nevada industrial

commission, approved by the governor, deposit an additional fifteen per cent of said fund in

bank or banks in the State of Nevada upon special time deposits bearing interest at not lessthan three per cent per annum; provided, however, that such bank or banks in which deposits

may be made shall give to the Nevada industrial commission a good and sufficient surety

deposit bond guaranteeing said Nevada industrial commission against any loss of said deposit

by reason of failure, suspension, or otherwise of said bank. Interest earned by such portion of

the state insurance fund which may be deposited in any bank or banks, as herein provided,

shall be placed to the credit of the state insurance fund.”

Before this amendment, section 40 read as follows: “The State of Nevada shall not be

liable for the payment of any compensation under this act, save and except from the said state

insurance fund, to be derived from the payment of premiums as provided in this act.” Laws

1913, c. 111.Section 24 of that act is as follows: “All premiums provided for in this act shall be paid to

the state treasurer, and shall constitute the state insurance fund for the benefit of employees of

employers and for the benefit of dependants of such employees, and shall be disbursed as

hereinafter provided.”

The first attempt of the legislature of Nevada to enact DZRUNPHQVFRPSHQVDWLRQODZ ZDVWKHDFWRI0DUFKSDJHFKDSWHUZKLFKZDVYHU\EULHIDQG SURYLGHGIRUDUELWUDWLRQRIFODLPVIRULQMXULHVZKHQWKHSDUWLHVLQWHUHVWHGZHUHXQDEOHWR



DJUHH


a workmen's compensation law was the act of March 24, 1911, page 362 (chapter 183), whichwas very brief and provided for arbitration of claims for injuries when the parties interested

were unable to agree.

In 1913 this act was repealed and the original act which we now have was enacted, and

was approved March 15, 1913, page 137 (chapter 111).

Section 24 of that act remains today as then enacted and as quoted above.

The case State v. McMillan, 36 Nev. 383, 384, 136 P. 108, held the state insurance fund

was a special fund given to the state treasurer in trust as distinguished from state taxes and

other revenues of the state.

The legislature by the “Nevada Industrial Insurance Act” has seen fit and proper to direct

how the state insurance fund shall be saf eguarded and protected and has provided, as we seein section 40, as amended and set forth as above, to provide for a portion of that fund to be

deposited in bank or banks.

The only security required is that the bank receiving such a deposit shall furnish a “good

and sufficient surety deposit bond guaranteeing said Nevada industrial commission against

any loss of said deposit by reason of failure, suspension, or otherwise of said bank.”

No further requirement was provided for, no provision that the bank should hold it as a

trust fund, no provision that it should be a preferred claim on the assets of the bank, nothing

to indicate that the state would exercise a “sovereign right” of preference, only the

requirement that it should be a “special time deposit.”

There are many kinds of special deposits. We must give meaning to all words used in a

statute, and, consequently, by the use of the word “time” we must understand that the depositis to be made for some period of time.

It must be a special deposit, but the limitation that it must be a time deposit bearing

interest and secured by a surety bond takes it out of that class of special deposits which are

generally known as such. It is a VSHFLDOGHSRVLWLQWKDWLWEHDUVLQWHUHVWDQGLWVUHSD\PHQW ZLWKRXWORVVV HFXUHGE\DVXUHW\GHSRVLWERQG


special deposit in that it bears interest and its repayment without loss secured by a suretydeposit bond. Those are the special conditions upon which the deposits of the state insurance

fund can be made in banking institutions.

The United Nevada bank deposit of $10,000 made in June, 1930, was made at a time when

the amendment of 1919 was in force and effect, and in which section 40, subsec. (c), had

been amended to read as follows: “The state treasurer may, upon written authority of the

Nevada industrial commission, approved by the governor, deposit twenty-five (25%) per cent

of said fund in a bank or banks in the State of Nevada, fifteen (15%) per cent thereof to be



deposited in open accounts bearing interest at not less than three (3%) per cent per annum,

and ten (10%) per cent thereof to be deposited in time accounts, bearing interest at not less

than four (4%) per cent per annum.”

Then follows provision for a good and sufficient surety deposit bond as set out in the

former subsection. Statutes 1919, c. 176, pp. 305, 311.

No condition as to the deposits at 4 percent except the giving of a surety bond and whichwe find has been given.

From the many cases cited in the briefs of counsel or referred to in the cases cited, we may

well apply the following: “Special circumstances must exist in order to make the deposit

special instead of general, and, inasmuch as equality is equity, courts have been careful to

limit the number of special circumstances which will create a special instead of a general

deposit. At the risk of repetition, we might again point out that three exceptions only to the

rule that a deposit will be treated as a general were recognized in City of Sturgis v. Meade

County Bank, 38 S. D. 317, 161 N. W. 327, namely: (1) Where money or other thing is

deposited with the understanding that that particular money or thing is to be returned to the

depositor; (2) where the money or thing deposited is to be used for a specifically designated

purpose; and (3) where the deposit itself ZDVZURQJIXORUXQODZIXO


was wrongful or unlawful. Gray v. Elliott, 37 Wyo. 4, 257 P. 345, 346, 53 A. L. R. 554.

There is nothing to indicate in the present case that the identical money deposited was to

be returned, nor that it was to be used for a specific purpose, nor that it was wrongful or

unlawful.

In fact, as we have seen, the deposits were made in accordance with the law and as

authorized by the law, and we fail to find one single element which makes these depositsanything but general deposits and not entitled to any consideration except as such general

deposits.

6. That the various certificates of deposit designate them as special deposits do not make

them such, but their true character must be found in the acts and intentions of the parties.

Stockton Savings & Loan Soc. v. Purvis, 112 Cal. 236, 44 P. 561, 53 Am. St. Rep. 210.

7. As to the deposits in the Carson Valley bank amounting in the aggregate to

$119,747.64, appellants present a different question and claim this amount was unlawfully

deposited in the bank contrary to law in that it belonged to the state insurance fund and

should have been turned over to the state treasurer and by him kept in accordance with our

laws.This sum, with the exception of $2,805.95, was made up of moneys paid to the

commission by various persons as premiums or from other sources of revenue to which the

commission was entitled and covered such receipts for a period of two and one-half months.

Section 21 of the Nevada industrial insurance act, as amended by Stats. 1925, c. 114, sec.

3 (section 2702 N. C. L. 1929), provides that: “Every employer electing to be governed by the

provisions of this act * * * shall * * * as required by the Nevada industrial commission, pay

to the Nevada industrial commission, for a state insurance fund, premiums in such a



percentage of his estimated total pay-roll for the ensuing two months as shall be fixed by

order of the Nevada industrial commission. * * *”

Thereafter this section provides that the employerPXVWSD\WKHSUHPLXPRQKLVDFWXDO SD\UROORQRUE HIRUHWKHWKRIHDFKVXFFHHGLQJPRQWKWRWKH1HYDGDLQGXVWULDO

FRPPLVVLRQ


must pay the premium on his actual pay roll on or before the 25th of each succeeding month

to the Nevada industrial commission.

Section 24 of this same act (section 2705 N. C. L. 1929) provides as we have seen (supra)

that: “All premiums provided for in this act shall be paid to the state treasurer, and shall

constitute the state insurance fund. * * *”

By these sections the law provides that the premiums shall first be paid to the Nevada

industrial commission and by the commission paid to the state treasurer to constitute the state

insurance fund.

All disbursements from the state insurance fund shall be paid by the state treasurer upon

warrants or vouchers of the Nevada industrial commission, authorized and signed by any two

members of the commission. Section 40, subsection (a) of the act, as amended (section 2721

N. C. L. 1929).

The evidence shows and is uncontradicted, that beginning in 1913 the Nevada industrial

commission received its payments of premiums from employers electing to come under the

act in personal checks drawn by the employer on their individual bank accounts, or that such

premiums were generally paid in that manner; that the state treasurer could not or would not

receive such payments in that form, but must have cash payments; that the commission then

opened an account with the Carson Valley bank and deposited all its receipts in whateverform they might be in its open running account with said bank, the bank giving credit to the

commission for the items thus deposited and charging back to the commission such items as

had been dishonored by nonpayment when presented for payment, all in the usual course of

commercial banking business and just such a course of business as carried on in its ordinary

deposit accounts; at stated times, usually monthly periods, statements of the account were

rendered to the commission showing the condition of the account, just as in its ordinary and

usual course of business; that this account was carried in the name of the Nevada LQGXVWULDO FRPPLVVLRQWKDWFKHF NVZHUHGUDZQSD\DEOHRQO\WRWKHVWDWHWUHDVXUHUIRUWUDQVIHUWR

WKHVWDWHLQVXUDQFHIXQG


industrial commission; that checks were drawn payable only to the state treasurer for transfer

to the state insurance fund.

At first all amounts over $5,000 were turned over to the state treasurer, then finally this

amount was increased to $50,000, and the bank was requested to give a surety bond to the



commission as security for such deposit, and this bond was in full force and effect at the time

the bank closed its doors and ceased to do business.

These retentions of the funds were all in accordance with resolutions passed by the Nevada

industrial commission and copies furnished to the Carson Valley bank.

Section 24 of the act does not require an immediate payment of these funds to the state

treasurer, and it is not to be presumed that it was the intention of the legislature that thesepayments should be other than at reasonable times, and we cannot hold that the times shown

for such retention was unreasonable as the evidence shows that payments of large amounts

would come in which would increase the amount in this account far beyond the amount

named in the various resolutions; these checks for large amounts must first be presented and

paid by the bank upon which they were drawn, the bank acting as a clearing house for these

payments.

No other way for the payment of these receipts was open to the commission except to

require their payment in cash, an unusual, unsatisfactory, and a very inconvenient method of

payment.

This course of action by the commission must have been known to the state and through

these many years have been ratified and approved by the state. As we have stated before, thestate can only act through its duly constituted officers, and the governor, attorney-general, and

the state mine inspector compose the industrial commission board, section 8 (a), and the

board shall make an audit of all books of accounts and records and of all funds and securities

of the Nevada industrial commission, section 40 1/2, and they KDYHWKHSRZHUWRUHPRYH DQ\FRPPLVVLRQHUIRULQHIILFLHQF\QHJOHFWRIGXW\RUPLVFRQGXFWLQRIILFHVHFWLRQE


have the power to remove any commissioner for inefficiency, neglect of duty, or misconductin office, section 8 (b).

It is presumed “that official duty has been regularly performed.” Statutes 1931, c. 50, sec.

558g, subsec. 15.

Knowing what has been the course of handling these funds by the commission and by law

being the agents and representatives of the state and the only ones authorized to act in such

matters on behalf of the state and taking no action to disapprove such course by removing the

members of the commission, we hold that the State of Nevada through its proper officers

have consented to and approved such deposit.

We therefore hold such deposits were not unlawful and did not create a trust fund in favor

of the state and are only entitled to be treated as a general deposit, and entitled to nopreference over other general deposits.

8. As to the item of $2,805.95, this was a working fund deposited for convenience and

used for payment of minor items. While it has not been authorized by law, it has not been

prohibited by law and has been so used for many years with knowledge and approval of all

parties concerned in the administration of the Nevada industrial insurance act.

We hold that it is a general deposit and entitled to no greater preference than any other

general deposit in the bank.



We have read with a great deal of care the able opinion of the district judge of the lower

court and the able briefs of counsel and the many cases cited.

To analyze these many cases would extend this opinion beyond reasonable limits.

The decision of the lower court in both cases is hereby affirmed.

Note—Taber, J., having disqualified himself, the Governor designated Hon. J. M.Lockhart, Judge of the Seventh Judicial District, to sit in his stead.

____________

ÐÐÐÐ56 Nev. 151, 151 (1935) Deiss v. Southern Pacific Co. et al.ÐÐÐÐ

DEISS v. SOUTHERN PACIFIC COMPANY Et Al.

No. 3078

August 3, 1935. 47 P. (2d) 928.

1. Appeal and Error.Defect in complaint which fails to state cause of action is not waived, or defect cured by verdict, by

reason of fact that it was not urged in trial court (Comp. Laws 1929, sec. 8601).

2. Pleading.Where objection that complaint does not state cause of action is first made in appellate court,

complaint will receive liberal construction.

3. Negligence.Plaintiff who has negligently placed himself or his property in situation of imminent peril and is either

unconscious of situation, or unable to avoid danger, or both, may nevertheless recover damage of

defendant who negligently inflicts injury, if defendant could have avoided injury after discoveringplaintiff's peril.

4. Railroads.In action against railroad for death from shock of driver of automobile which was carried 1,287 feet

on pilot of engine after being struck by engine at crossing, complaint alleging duty of railroad and its

servants to keep reasonable lookout, that death of deceased occurred by reason of failure to fulfill that

duty, that train could have been stopped in a distance of 350 feet, and that engineer observed deceased in

time to have prevented his death from shock held to contain essential elements of last clear chance case

rendering railroad liable, even though not alleging that failure to stop train within distance it might have

been stopped constituted lack of ordinary care.

5. Railroads.In action against railroad for death from shock of automobile driver who was carried in his

automobile 1,287 feet on pilot of engine after automobile was struck by engine at crossing, doctrine of

last clear chance entitling widow of deceased to recover for wrongful death held applicable even though

engineer did not see deceased, since he would have seen deceased if he had exercised necessary care.

6. Negligence.Last clear chance doctrine applies where defendant would have discovered plaintiff's situation and

thus had reason to realize plaintiff's helpless peril had he exercised vigilance which it was his duty to

plaintiff to exercise.

7. Railroads.



Where automobile was struck by railroad engine at crossing, engineer and fireman held to have had

duty of keeping vigilant lookout as they approached crossing.

8. Railroads.In action against railroad for death from shock resulting when driver was carried 1,287 feet in his

automobile on pilot RIHQJLQHZKLFKVWUXFNDXWRPRELOHDWFURVVLQJZKHWKHUWUDLQFRXOG

KDYHEHHQVWRSSHGLQVKRUWHUGLVWDQFHKHOGIRUMXU\


of engine which struck automobile at crossing, whether train could have been stopped in shorter distance

held for jury.

9. Railroads.

In action against railroad for death from shock of driver of automobile which was carried 1,287 feet

on pilot of engine after being struck at crossing, plaintiff held not required, in making out prima-facie

case, to show that service brakes on engine were not applied at time of collision or that brakes were in

good condition.

10. Appeal and Error.Evidence will be construed most favorably for plaintiff, and every fact deemed established which

evidence tended to prove, in determining sufficiency of evidence to justify submission of issue to jury on

which defendant offered no evidence.

11. Railroads.In action against railroad for death of driver of automobile resulting from shock when he was carried

1,287 feet in automobile on pilot of engine which struck automobile at crossing, whether fatal shock

occurred after train passed place where it could have been stopped held for jury as regards question

whether failure to so stop was proximate cause of death.

12. Evidence.In action against railroad for death from shock of driver of automobile which was carried 1,287 feet

on pilot of engine which struck automobile at crossing, objection to question asked physician oncross-examination as to what was point at which deceased received shock that produced his death, held

properly sustained where witness had not seen accident and on direct examination had testified only as to

cause of death.

Appeal from Sixth Judicial District Court, Humboldt County; L. O. Hawkins, Judge.

Action by Adelaide M. Deiss, administratrix of the estate of Christian Deiss, deceased,

against the Southern Pacific Company and another. From a judgment for plaintiff and an

order denying defendants' motion for a new trial, defendants appeal. Affirmed. (Coleman, J.,

dissenting.)

Brown & Belford, for Appellants:

It is earnestly urged that the complaint in this action does not charge the defendants, or

either of them, with actionable negligence, and hence that it does not state facts sufficient to

constitute a cause of action. We desire to call the court's attention to two well-established

rules GHDOLQJZLWKWKHSOHDGLQJRIQHJOLJHQFH8QOHVVWKHIDLOXUHWRDFWXSRQZKLFKD SODLQWLIIEDVHVKLVULJKWWRUHFRYHULVQHJOLJHQWSHUVHRUXQOHVVVDLGIDLOXUHH[FOXGHVDQ\ K\SRWKHVLVRWKHUWKDQWKDWRIQHJOLJHQFHDFRPSODLQWZKLFKPHUHO\VHWVIRUWKWKHVDLG



IDLOXUHGRHVQRWVWDWHDFDXVHRIDFWLRQDJDLQVWDGHIHQGDQW


dealing with the pleading of negligence: (1) Unless the failure to act, upon which a plaintiff bases his right to recover, is negligent per se, or unless said failure excludes any hypothesis

other than that of negligence, a complaint which merely sets forth the said failure does not

state a cause of action against a defendant. Silvera v. Iverson, 125 Cal. 266, 57 P. 996; South

v. County of San Benito (Cal.), 180 P. 354; Simons v. P. G. & E. Co. (Cal.), 220 P. 425; 19

Cal. Jur. 670. (2) In addition to pleading negligence upon the part of a defendant, a causal

connection between the negligent act and the injury to plaintiff should be pleaded. Simons v.

P. G. & E. Co., supra; Fusselman v. Y. V. L. & I. Co. (Mont.), 163 P. 473, at 476.

There is no evidence proving or tending to prove that defendant Thoni saw the deceased,

and hence the “last clear chance” doctrine does not apply. The weight of authority is to the

effect that actual perception is necessary to call into play the exception to the general rule asto contributory negligence and to fasten liability upon a defendant. Darling v. Pac. Elec. Co.

(Cal.), 242 P. 703, at 706; Bagwill v. Pac. Elec. Ry. Co. (Cal.), 265 P. 517, at 519; McIntyre

v. Northern Pac. Ry. Co. (Mont.), 180 P. 971, at 973; Met. Ry. Co. v. Fonville (Okla.), 125 P.

1125, at 1127; Richardson v. Portland R. L. & P. Co. (Ore.), 141 P. 749, at 750; A. T. & S. F.

Ry. Co. v. Taylor (C. C. A.), 196 Fed. 878, at 880; Penna. Ry. Co. v. Swartzel ( C. C. A.), 17

Fed. (2d) 869; Central of Ga. Ry. Co. v. Bates (Ala.), 144 So. 10; Kansas City M. & B. R. Co.

et al. v. Williford (Tenn.), 88 S. W. 182; Mo. Pac. R. Co. v. Skipper (Ark.), 298 S. W. 854;

Baker v. Shafter (Tex. Com. App.), 231 S. W. 349; Nort. Tex. Traction Co. v. Singer (Tex.),

34 S. W. (2d) 923; Cleveland Ry. Co. v. Masterson (Ohio), 183 N. E. 875; Heldt v.

Thompson (Ind.), 157 N. E. 60; Panarese v. Union Ry. Co. (N. Y.), 185 N. E. 86; Carr v.

Interurban Ry. Co. (Ia.), 171 N. W. 168; Emmons v. Southern Pac. Co., (Ore.), 191 P. 333.The most the evidence shows is that Thoni might have seen the deceased had he been

looking, but upon such HYLGHQFHWKHMXU\VKRXOGQRWEHSHUPLWWHGWRLQIHURUWRVSHFXODWH WKDWKHGLGVR


evidence the jury should not be permitted to infer or to speculate that he did so. Miller Brent

Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414; S. & N. R. Co. v. Mann (Ky.), 13 S. W.

(2d) 257.While there is in the record evidence as to the distance within which the train in question

could have been stopped by a full emergency application of the brakes, there is a total lack of

evidence as to the distance within which it could have been stopped if a prior service

application of the brakes had been made as the train came into Winnemucca. And there is not

a scintilla of evidence in the record as to the actual condition of the brakes on the train at the

time it struck Deiss, and yet the court permitted the jury to speculate as to this and to assume

that there had not been a service application. No evidence whatever was introduced on this



point, and as far as the record is concerned the engineer may have made a service application

with a reduction of as much as twenty pounds prior to the accident. We therefore respectfully

submit that plaintiff failed to prove that the employees of the defendant company could have

stopped the train in any shorter distance than it was in fact stopped, and that such failure is

fatal to recovery under the last clear chance doctrine.

There is no proof that the negligence of defendants, if any, was the proximate or any causeof the death of Deiss. Viewing the facts in the light most favorable to plaintiff, the train could

not have been stopped until it had proceeded at least 350 feet beyond the crossing where the

accident occurred. In order to fasten liability upon the defendants it is necessary to prove that

the shock from which Deiss died was sustained at some point between 350 feet and 1,287 feet

west of the crossing, where the train stopped; and yet we do not find one iota of testimony,

expert of otherwise, as to when the shock was received, or even when it is probable that it

was received. It is so obvious that the verdict in this action was based purely upon guess,

surmise, speculation and conjecture, instead of upon evidence as that WHUPLVXVHGLQWKHODZ WKDWZHPLJKWZHOOUHVWRXUFDVHKHUHEXWLQDVPXFKDVWKLVPDWWHUKDVEHHQSDVVHGXSRQ LQRWKHUMXULVGLFWLRQVZHGHVLUHWRFDOOWKHFRXUWVDWWHQWLRQWRWKHIROORZLQJFDVHV

*LDQQLQLY6RXWKHUQ3DFLILF&R&DO3


term is used in the law, that we might well rest our case here, but inasmuch as this matter has

been passed upon in other jurisdictions, we desire to call the court's attention to the following

cases: Giannini v. Southern Pacific Co. (Cal.), 276 P. 618; Cox v. St. Louis, San Francisco

Ry. Co. (Mo.), 9 S. W. (2d) 96; Plinkiewisch v. Portland R. L. & P. Co. (Ore.), 115 P. 151.

It is submitted that the question asked by defendants' counsel on cross-examination of the

witness Dr. Pope, as to what point deceased received the shock that produced his death, wasproper as being within the scope of the direct examination and for the purpose of testing the

knowledge of the witness. Dr. Pope qualified and was testifying as an expert witness. It was

therefore the right of the defendants to inquire into his knowledge of the matters to which he

was testifying, and to question him upon the nature of such injuries, the results and causes

thereof, the circumstances under which they are ordinarily inflicted, and relative matters.

Inasmuch as the time when the shock was suffered is one of the important points in the case

at bar, it is submitted that the ruling of the court sustaining the objection to the question was

error highly prejudicial to the defendants.

C. E. Robins and Merwyn H. Brown, for Respondent:

The decisions cited by appellants to support their first assignment arose, in nearly all those

cases, where a demurrer, before trial, had been leveled at the complaint on different grounds

and sustained, and the plaintif f, refusing to amend, took the exact question to the appellate

court; or, in some cases, the demurrer was overruled and the defendant refused to plead

further, and took the exact question to the appellate court. But here we have a different

situation. No ruling was made upon any demurrer, and no ruling was called for; an answer

and reply were filed, and the case went to trial and a verdict was rendered, followed by entry



of judgment.

In the case at bar the plaintiff, without objection, LQWURGXFHGHYLGHQFHSURYLQJRUWHQGLQJ WRSURYHWKDWRQWKHGGD\RI6HSWHPEHU&KULVWLDQ'HLVVWKHGHFHDVHGGURYHKLV DXWRPRELOHXS%ULGJHVWUHHWRI:LQQHPXFFD1HYDGDDQGGLUHFWO\RQWRWKHUDLOZD\ FURVVLQJRIWKH6RXWKHUQ3DFLILF&RPSDQ\LQIURQWRIDQHQJLQHSXOOLQJDWUDLQRI

VHYHQW\VHYHQFDUV


introduced evidence proving, or tending to prove, that on the 2d day of September, 1930,

Christian Deiss, the deceased, drove his automobile up Bridge street, of Winnemucca,

Nevada, and directly onto the railway crossing of the Southern Pacific Company, in front of

an engine pulling a train of seventy-seven cars. His automobile was caught by the pilot of that

engine. He was negligent in so placing the automobile which he was then driving, but as soon

as the engine and its pilot picked up the automobile the negligence of Deiss “stopped.” The

defendant Thoni knew, or by ordinary care should have known, the dangerous position inwhich Deiss then was and the inability of Deiss to extricate himself from his then dangerous

position.The engineer could have stopped his train within a distance of three hundred and

fifty feet, but he carelessly, negligently, and without any regard for the life or limb of

Christian Deiss, permitted his train to go for a distance of over twelve hundred feet. After the

engine had traveled some five hundred feet, Deiss subsequently sustained a great shock to his

nervous system, from which he died the following morning. A verdict was rendered upon that

evidence. In support of our position we cite the following authorities: 49 C. J. at p. 486, sec.

1249; Williamson & P. C. R. Co. v. Charles' Adm'r. (Ky.), 181 S. W. 614; McHargue v.

Caschina (Ore.), 153 P. 99; Gynter v. Brown and McCabe (Ore.), 134 P. 1186; Eylenfeldt v.

United Railroads (Cal.), 151 P. 294; Levey v. Fargo, 1 Nev. 415, 418; Humason v. MichiganCentral (Ill.), 102 N. E. 793; Houghton and Palmer v. Beck (Ore.), 9 Ore. 325; Treanor v.

Houghton (Cal), 36 P. 1081; Township of Lincoln v. Cambria Iron Co. (U.S.), 26 Law. Ed.

518; Moss v. Goodhart (Mont.), 131 P. 1071; Wills v. Claflin (U. S.), 23 Law Ed. 490.

The law in the State of Nevada has been settled as to the doctrine of the “Last Clear

Chance”; the rule set forth in appellant's brief is not the rule in this state. Weck v. Reno

Traction Company, 38 Nev. 296, 149 P. 65. Therefore, the statement in appellant's EULHIWKDW ³DFWXDOSHUFHSWLRQLVQHFHVVDU\WRFDOOLQWRSOD\WKHH[FHSWLRQVWRWKHJHQHUDOUXOHDVWR FRQWULEXWRU\QHJOLJHQFHDQGWRIDVWHQOLDELOLW\XSRQDGHIHQGDQW´LVQRWWKHODZLQWKLV VWDWHDQGWKHQXPHURXVFDVHVFLWH GE\DSSHOODQWVDUHRIQRZHLJKWLQGHFLGLQJWKH

TXHVWLRQEHIRUHWKHFRXUW


brief that “actual perception is necessary to call into play the exceptions to the general rule as

to contributory negligence and to fasten liability upon a defendant,” is not the law in this

state, and the numerous cases cited by appellants are of no weight in deciding the question

before the court.



Yet, in support of the rule settled by the supreme court of this state, the plaintiff submits

that there is definite and positive evidence in the record, which was presented to the jury, that

the defendant Thoni, the engineer on the train which struck the automobile driven by Deiss,

knew of the dangerous and perilous position of the deceased at the time he was struck by the

train. There is positive and undisputed evidence that the whistle on the engine had blown just

prior to and as it was approaching the crossing; that the Bridge street crossing was a publiccrossing in the city of Winnemucca for residents and the public to use in going to and from

the south portion of Winnemucca to the main part of Winnemucca, and had been for more

than twenty years last past; that the automobile when struck by the engine lodged on the

right-hand side of the pilot of the engine, and that the right rear wheel protruded over the side

of the engine and was dragging along, plowing a furrow and throwing dust and rocks along

the right-hand side of the engine. All of this evidence clearly indicates that the engineer, as a

matter of common knowledge, was in his seat on the engine, blowing the whistle, prepared to

give the necessary warning and was giving the necessary warning at a public crossing, and

saw the defendant approaching and struck by the train.

The evidence in the record, and considered by the jury, is conclusive that the train could

have been stopped within three hundred to four hundred feet. There is absolutely no evidencein the record to contradict or disprove this fact. Instead, the uncontradicted evidence shows

that the engineer did not start to stop the train until the engine had gone about five hundred or

six hundred f eet from the crossing, and WKDWKHGLGQRWEULQJWKHWUDLQWRDIXOOVWRSXQWLOWKH HQJLQHKDGUHDFKHGDSRLQWDERXWIHHWZHVWRIWKHFURVVLQJ


that he did not bring the train to a full stop until the engine had reached a point about 1,287

feet west of the crossing.There is absolute and positive evidence in the record from which the jury could infer when

the profound shock was received. Under the law the jury had the right to infer when it was

received, from the facts presented. It was not a matter of conjecture or speculation, as the

appellants would like to have it appear, but rather a legal inference drawn by the jury from

facts presented to it by the evidence introduced and admitted.

The court rightfully and legally sustained the objection to the question propounded by

counsel for defendants to Dr. Pope. Counsel for defendant was endeavoring to present a

defense by testimony under cross-examination, which was not brought out or touched upon in

direct examination, was not proper cross-examination, and intended entirely as evidence to

support the defense of defendants. The question as to when the deceased received theprofound shock cannot be construed, in the light of the direct examination, as to test the

knowledge of the witness in reference to the testimony he had given. His testimony was

confined to the cause of the death of the deceased.

OPINION




On the afternoon of December 2, 1930, at the city of Winnemucca, Christian Deiss, for

some unknown reason, drove his automobile directly in front of appellant company's freight

train, “Extra 4373 West,” the engine of which collided with said automobile at a point where

Bridge street crosses said company's tracks. The automobile, with Deiss in it, was picked up

and carried on the pilot of the engine until the train stopped at the station—the enginestopping at a SRLQWDSSUR[LPDWHO\IHHWIURPVDLG%ULGJHVWUHHWUDLOUR DGFURVVLQJ


point approximately 1,287 feet from said Bridge street railroad crossing. Deiss was here

removed from the automobile and taken to a hospital, where he died on the following day;

death being due, not to physical injuries, but to profound shock.

Respondent, Deiss' widow, brought this action as administratrix of his estate to recover

damages from appellant company and appellant B. Thoni, engineer operating the engine atthe time of said accident. Appellants filed a general demurrer, but so far as the record shows

the demurrer was not presented to or ruled on in the trial court. Appellants later answered the

complaint, denying any negligence on their part and setting up two affirmative defenses

alleging contributory negligence on the part of Deiss. In her reply to the new matter in said

answer, respondent denied that Deiss' negligence alleged in the two affirmative defenses

contributed to or was the cause of his death.

The case was tried with a jury in the Sixth judicial district court, county of Humboldt. In

his opening statement, counsel for respondent admitted that Deiss was careless in driving his

automobile onto the crossing directly in front of the oncoming train, but told the jury that a

verdict would be asked upon the ground of appellants' negligence in not stopping the train

within some 350 feet from the point of collision.At the conclusion of respondent's presentation of evidence, appellants moved for a nonsuit,

which was denied; whereupon they rested, and then moved the court to direct the jury to find

a verdict for the appellants. The court also denied this motion. The jury returned a verdict for

respondent in the sum of $5,000. Appellants moved for a new trial, which was denied.

Thereupon appellants appealed to this court from the judgment, and from the order denying a

new trial.

1. Appellants contend that the complaint fails to state facts sufficient to constitute a cause

of action. Respondent argues that this objection has been waived by appellants, and that the

defect, if any, has been cured by the verdict, for the reason that the point was not XUJHGLQWKH

FRXUWEHORZ


urged in the court below. Counsel for respondent are in error on this point; for, while in many

states such defect may be waived or cured, it is settled in Nevada, as pointed out in appellants'



closing brief, that where this defect exists, it is not waived, or the defect cured by verdict, by

reason of the fact that it was not urged in the trial court. Nielsen v. Rebard, 43 Nev. 274, 183

P. 984; Nichols v. Western Union Tel. Co., 44 Nev. 148, 191 P. 573; N. C. L. sec. 8601.

2. It is true, however, as stated in Nielsen v. Rebard, supra, that “courts do not look with

favor upon objections of this kind when made for the first time in the appellate court;” and

respondent is correct in her position that after verdict the complaint will receive a liberalconstruction. Baldwin v. Wells (Mo. App.), 27 S. W. (2d) 435; Gynther v. Brown, 67 Or.

310, 134 P. 1186; Stevens v. Westport Laundry Co., 224 Mo. App. 955, 25 S. W. (2d) 491;

Blashfield Cyc. of Automobile Law and Prac. (Permanent Edition, 1935), sec. 5932.

To better understand appellants' contention and this court's ruling thereon, the appropriate

portions of respondent's complaint are here given:

“That on the 2d day of December, 1930, and for several years prior thereto, said portion or

part of said railroad and tracks and the space between said tract and that immediately

contiguous thereto were frequently and constantly used as a passage or crossing way by the

public generally, in walking, driving automobiles, and passing and repassing and along, over,

and across the same, all of which was with the knowledge and acquiescence of the

defendants, so that and by reason thereof it became and was the duty of the defendant,Southern Pacific Company, and its servants, and particularly the defendant, B. Thoni, in

charge and control of its locomotive engines whilst operating and running said engines near

to and over and along said portion or part of said railroad and tracks to exercise ordinary care

and to keep a reasonable lookout for such persons as the defendants might reasonably expect

to be upon or dangerously near to and about to go upon said UDLOURDGDQGWUDFNVDWWKHSDUW RUSRUWLRQWKHUHRIDIRUHVDLGLQRUGHUWRGLVFRYHUDQGDYRLGLQMXULQJWKHP


railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid

injuring them.

“That on the 2d day of December, 1930, the said Christian Deiss, then and there occupying

and driving an automobile, ran the same in front of an engine then attached to a train of 77

cars, and known as Train Extra West No. 4373, belonging to the defendant, Southern Pacific

Company, and in control of the defendant, B. Thoni, who was then and there the engineer on

said engine.

“That at the same time, the said engineer had a continuous, full and unobstructed view of

the said Christian Deiss, then and there driving said automobile upon said railroad and tracks,

for the distance of about fifty yards.“That the said train so operated by the said defendant, Thoni, was being operated at a

speed of about thirty miles per hour.

“That the defendant, Southern Pacific Company, and the defendant, Thoni, its locomotive

engineer and servant in charge and control of said locomotive engine, carelessly and

negligently failed to discharge their duties as aforesaid and did not use ordinary care, or any

care whatever to keep a reasonable lookout to discover the said Christian Deiss aforesaid as it

was his duty to do, but he kept no reasonable lookout whatever, and that the said engine ran



into and carried the said Christian Deiss and the said automobile in which the said Deiss was

then and there seated, a distance of more than 1,100 feet and by reason whereof the said

Deiss, on the 3d day of December, 1930, died from shock to his nervous system.

“That from the position of the defendant Thoni, and from his place in and on said engine,

the said engineer could have stopped said engine and cars in a distance of 250 feet, and that

the life of the said Christian Deiss would thereby have been saved.“That the said defendant, Thoni, then and there and at the time of striking the automobile

of the said Christian Deiss, knew, or had good reason to believe that WKHVDLG&KULVWLDQ'HLVV ZDVQRWDZDUHRIWKHGDQJHUWKHVDLG&KULVWLDQ'H LVVZDVWKHQLQDQGWKDWWKHHQJLQHHU WKHVDLGGHIHQGDQW7KRQLVDZWKHVDLG'HLVVLQVXFKDSRVLWLRQDQGLQWLPHWRSUHYHQW

LQMXU\WRWKHVDLG'HLVVDQGLQWLPHWRKDYHSUHYHQWHGWKHVDLG'HLVVIURPG\LQJRIVKRFN


the said Christian Deiss was not aware of the danger the said Christian Deiss was then in and

that the engineer, the said defendant Thoni, saw the said Deiss in such a position and in timeto prevent injury to the said Deiss, and in time to have prevented the said Deiss from dying of

shock.

“That the said Deiss, at the time of his death, was of the age of about 57 years.”

3. The basis of the last clear chance doctrine, as set forth in the 1935 permanent edition of

Blashfield's Cyclopedia of Automobile Law and Practice, is this: “A plaintiff who has

negligently placed himself or his property in a situation of imminent peril and is either

unconscious of the situation, or unable to avoid the danger, or both, may nevertheless recover

damages of the defendant who negligently inflicts injury, if the defendant could have avoided

the injury after discovering the plaintiff's peril.” Vol. IV, p. 536.

4. The complaint in the case at bar, while imperfectly drawn, contains, either directly andpositively on the one hand, or by necessary implication or reasonable inference on the other,

all the essential elements of a last clear chance case. That deceased was in a position of peril

from which he could not extricate himself clearly appears from the allegation that he and the

automobile he was driving were picked up by the pilot of the engine when the train was

traveling about 30 miles per hour and carried more than 1,100 feet. It is expressly alleged by

direct allegation that it was the duty of defendant and its servants “to exercise ordinary care

and to keep a reasonable lookout for such persons as the defendants might reasonably expect

to be upon or dangerously near to and about to go upon said railroad and tracks at the part or

portion thereof aforesaid in order to discover and avoid injuring them.” It also appears from

the complaint that defendants had actual or constructive notice of deceased's peril. The

allegations of the complaint are sufficient to show, further, that defendants, DIWHUWKH\ EHFDPHDZDUHRUVKRXOGKDY HEHFRPHDZDUHRIGHFHDVHGVSHULOKDGWKHSUHVHQWDELOLW\ ZLWKPHDQVLQKDQGWRKDYHDYHUWHG'HLVVGHDWKWKDWWKH\IDLOHGWRGRVRDQGWKDWE\

UHDVRQWKHUHRI'HLVVORVWKLVOLIH




after they became aware or should have become aware of deceased's peril, had the present

ability, with means in hand, to have averted Deiss' death, that they failed to do so, and that by

reason thereof Deiss lost his life. Pollard v. Oregon Short Line R. Co., 92 Mont. 119, 11 P.

(2d) 271; Baldwin v. Wells, supra; Stevens v. Westport Laundry Co., supra; Banks v. Morris

& Co., 302 Mo. 254, 257 S. W. 482; Louisville & N. R. Co. v. Scott, 222 Ala. 323, 132 So.

29.

There does not appear to be any direct or positive allegation in the complaint that

defendants, after Deiss' peril was or by the exercise of ordinary care should have been

discovered, failed to use ordinary care in not stopping the train within the distance it could

reasonable have been stopped; but, as stated in Illinois Cent. R. Co. v. Tolar's Adm'r., 169

Ky. 114, 183 S. W. 242. 244, “a failure to use ordinary care to avoid injuring decedent, who

was a member of the public, after his peril was or might have been discovered by the exercise

of ordinary care, was necessarily included in the charge that the engineer failed to keep a

lookout, and failed to take such care as would protect the public at the crossing.”

5-7. Appellants next contend that there was no evidence proving or tending to prove that

Thoni, the engineer, saw the deceased, and that hence the last clear chance doctrine does notapply. We are fully aware of the numerous decisions of courts of high standing supporting the

rule that actual perception by a defendant of plaintiff's peril is necessary to bring a case within

the humanitarian doctrine. This court, however, is clearly satisfied that the better rule makes

actual perception unnecessary, and that if the defendant “would have discovered plaintiff's

situation and thus had reason to realize the plaintiff's helpless peril had he exercised the

vigilance which it was his duty to the plaintiff to exercise” [Restatement of the Law, Torts,

vol. 2, sec. 479], the case comes within the aforesaid doctrine [Week v. Reno Traction Co.,

38 Nev. 285, 3


149 P. 65; Pollard v. Oregon Short Line R. Co., supra; Payne v. Healey, 139 Md. 86, 114 A.

693; Berry, Automobiles (7th ed.), p. 420; Linney v. Chicago, M. St. P. & P. R. Co., 94 Mont.

229, 21 P. (2d) 1101; Thompson's Commentaries on the Law of Negligence, sec. 1629; 2

Sherman & Redfield on Negligence (5th ed.), 783]. It may be observed here that it was the

duty of the engineer and fireman to keep a vigilant lookout as they were approaching the

Bridge street crossing. Pollard v. Oregon Short Line R. Co., supra; Payne v. Healey, supra;

Smith v. Chicago Great Western R.Co. (Mo. App.), 282 S. W. 62.

8, 9. We have next to consider appellants' claim that there was no evidence proving or

tending to prove that the train could have been stopped in a shorter distance than it was. This

contention is wholly without merit. The witness Wrede testified that the train started to slow

down when it was about opposite the center of the Southern Pacific warehouse, and that it

came to a gradual stop 30 or 35 feet east of the yardmaster's office. Witness Davis testified

that the train began to make a slow stop some 300 feet west of the Bridge street crossing; that



it began to “slow up slowly. He made a slow stop.” Witnesses Davis, Beach, Wagner, and

Lillie testified regarding emergency and service application of air brakes; the high class of

equipment on the Southern Pacific engines, including the engine that hauled the particular

train which figured in said accident; that such a train could be stopped in from 300 to 400

feet. There was ample evidence to justify its submission to the jury on the particular issue in

question. Westerdale v. Northern Pac. R. Co., 84 Mont. 1, 273 P. 1051; Citizens' St. R. Co. v.Hamer, 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778; Payne v. Healey, supra; McMahon v.

Joplin & P. R. Co., 96 Kans. 271, 150 P. 566; Hoyer v. Lake Shore Electric R. Co., 104 Ohio

St. 467, 135 N. E. 627; Cleveland C. C. & St. L. R. Co. v. Henson, 54 Ind. App. 349, 102 N.

E. 399. In making out a prima-facie case, we do QRWFRQVLG HUWKDWLWZDVQHFHVVDU\IRU SODLQWLIILQWKHFRXUWEHORZWRVKRZWKDWWKHVHUYLFHEUDNHVRQWKHHQJLQHKDGQRWEHHQ DSSOLHGDWWKHWLPHRIWKHFROOLVLRQRUWKDWWKHEUDNHVRQWKHHQJLQHRUWUDLQZHUHLQJRRG

FRQGLWLRQ


not consider that it was necessary for plaintiff in the court below to show that the service

brakes on the engine had not been applied at the time of the collision, or that the brakes on

the engine or train were in good condition. Such matters were peculiarly within the

knowledge of the defendants and, if true, could properly have been offered in behalf of the

defendants.

10. In connection with the matter now under discussion it is not amiss to observe that

where, as in this case, no evidence was offered in behalf of the defendant, the evidence is to

be construed most favorably for plaintiff, and every fact must be deemed established which

the evidence tends to prove. Westerdale v. Northern Pac. R. Co., supra; Hoyer v. Lake Shore

Electric R. Co., supra; Gambling v. Missouri Pac. R. Co. (Mo. App.), 40 S. W. (2d) 766;Gardenhire v. St. Louis-San Francisco R. Co., 224 Mo. App. 586, 31 S. W. (2d) 113; Gordon

v. Postal Telegraph-Cable Co. (Mo. App.), 24 S. W. (2d) 644.

The fourth point urged upon the court by appellants on this appeal is that there was no

proof that the negligence of appellants, if any, was the proximate or any cause of the death of

Deiss. It is admitted by respondent that there is insufficient evidence to hold appellants liable

for the collision, and as respondent's evidence indicated that the train could have been

stopped within 350 feet of the crossing, it follows that in order to uphold the verdict and

judgment of the trial court it must appear that there was sufficient evidence to warrant that

court in submitting to the jury the question as to whether the shock from which Deiss died

was received easterly or westerly of a point approximately 350 feet westerly from said Bridge

street crossing. Appellants' position is that there was no evidence whatever as to when the

fatal shock was received, or even when it is probable that it was received. Therefore, they

argue, the verdict must necessarily have been based purely upon guess, surmise, speculation,

and conjecture. For this reason alone they contend WKDWWKHGLVWULFWFRXUWVKRXOGQRWKDYH

VXEPLWWHGWKHFDVHWRWKHMXU\




that the district court should not have submitted the case to the jury. In support of their

argument counsel cite Giannini v. Southern Pacific Co., 98 Cal. App. 126, 276 P. 618; Cox v.

St. Louis-San Francisco Ry. Co., 223 Mo. App. 14, 9 S. W. (2d) 96, and Plinkiewisch v.

Portland Ry. L. & P. Co., 58 Ore. 499, 115 P. 151. In order to understand appellants'

contention it is proper that a few additional facts should here be stated.

When the train and automobile collided, the automobile, with Deiss in it, was picked up

and carried on the pilot of the engine to a point approximately 1,287 feet westerly from the

Bridge street crossing. The automobile rested more on the right than on the left side of the

pilot, the rear end extending somewhat beyond the right side of the pilot. One of the rear

wheels on the automobile was crushed and one end of the rear axle, at a point of about 50 feet

west of said crossing, began to drag along the right side of the track, making a furrow which

continued to the place where the engine finally stopped; Deiss being still in the automobile

but leaning through the window of his car and holding on to an iron bar on the pilot. He was

removed from the automobile almost immediately after the train had stopped. His hands,

when he was being taken from the wreckage, were clasped so tightly around the iron bar onthe pilot that it was necessary to pry his fingers loose. He had a look in his eyes described by

one witness as “wild,” and which another witness testified he would never forget. When the

doctor arrived at the place where Deiss was removed from the automobile and engine pilot,

he found “a very rapid weak heart action, very slow respiration * * * no pulse.” The only

physical wounds were a slight scalp wound and a slight wound on the right leg. The doctor

testified that the physical wounds were not such as to cause death and that death was the

result of profound shock. The train was traveling about 25 or 30 miles per hour at the time of

the collision. The day was warm and clear.


11. We are of the opinion that the district court was correct in its view that there was

sufficient evidence on this issue to be submitted to the jury. It is obvious that no one could or

can say with certainty at what point between the Bridge street crossing and the place where

Deiss was removed from the automobile the shock became so grave as to cause death. But we

are not prepared to say that where, as in this case, appellants negligently dragged the

automobile some 900 feet farther than the point where the train could with reasonable and

ordinary care have been stopped. Deiss being all this time alive and trying desperately to save

himself, the trial court was not justified in submitting the case to the jury, nor that the jury

was not justified as reasonable men in finding that the evidence preponderated in favor of the

fatal shock having been received westerly, rather than easterly, from the place where the train

could have been stopped. Direct or positive evidence is not always necessary on such issues.

Circumstantial evidence may be and frequently is sufficient to warrant the submission of such

cases to a jury. Westerdale v. Northern Pac. R. Co., supra; Hoyer v. Lake Shore Electric R.

Co., supra; Cleveland C. C. & St. L. R. Co. v. Henson, supra.

12. Appellants assign as error the action of the trial court in sustaining an objection to a



question asked Dr. Pope on cross-examination. After Dr. Pope had testified that the physical

injuries were not such as to cause a nervous shock and that Deiss died from shock, counsel,

on cross-examination, asked the witness the following question: “Assuming that he (Deiss)

was riding in the car across the Bridge street crossing, and that his car was struck by this

engine which you saw there, and the engine was, the car was carried on the pilot of the

locomotive down to the point where you saw the wreckage, or near thereby, and that Deissremained in the car, or on the pilot until the engine stopped at the point where you saw it * *

* could you tell from those facts, if you so believed it to be a fact, at ZKDWSRLQWKHUHFHLYHG

WKHVKRFNWKDWSURGXFHGKLVGHDWK"´


what point he received the shock that produced his death?”

To this question respondent objected upon the ground that it was not proper

cross-examination. The objection was sustained. We are of opinion that this was not error.The testimony of Dr. Pope, who was appellant company's district surgeon, was confined

strictly to the cause of the death. Dr. Pope did not witness the accident, and we do not believe

that the hypothetical question asked by appellants' counsel comes within the scope of

cross-examination. 70 C. J. pp. 626, 653-655.

Appellants assign as error the action of the lower court in giving instruction No. 22 and the

refusal by said court to give appellants' requested instructions 1, 6, 8, 10, and 11. The

questions of law involved in this assignment have been discussed in this opinion. We find no

error in giving the instruction objected to or in refusing to give the said instructions requested

by appellants.



Coleman, J., dissenting:

Plaintiff concedes that the deceased was negligent in undertaking to cross the railroad

track. This being so, the burden of proof is upon her to show that the deceased received the

shock which caused his death, at some other time. It is the theory of the plaintiff that he

received it at some indefinite point more than 350 feet west of the point of collision. There is

no evidence upon which to base this contention. The doctor might have been able to give

expert evidence on this point, but plaintiff did not want that evidence—at least did not

interrogate him as to it—though attention was directed to it. 22 C. J. p. 111.The logical inference is that the shock was received at the time of the collision. At least, it

so seems to me. The very word “shock” indicates a condition produced by a sudden incident.

Deceased received no physical LQMXU\RIFRQVHTXHQFH²KHQFHKLVVKRFNZDVGXHWRIULJKW²D PHQWDOFRQGLWLRQ²LQFLGHQWWRWKHFROOLVLRQ




injury of consequence—hence his shock was due to fright—a mental condition—incident to

the collision. It may be that the effect of the shock may have been more serious as the nervous

strain upon the deceased was prolonged, but that is not the theory of the plaintiff, and there is

not a scintilla of evidence in the record upon which to base a conclusion to that effect.

I think the case of Giannini v. Southern Pac. Co., 98 Cal. App. 126, 276 P. 618, is in point.

I do not deem it necessary to consider the other points made.


January 9, 1936.

1. Verdict.

If there be a doubt as to whether jury's verdict is supported by the evidence, that

alone does not justify appellate court in reversing judgment.

2. Railroads.In action against railroad for death from shock of driver of automobile which was

carried 1,287 feet on pilot of engine after being struck at crossing, held that plaintiff's

proof need not exclude any other hypothesis or inference that that of defendant's

liability, but only prove her case by a preponderance of evidence.

3. Appeal and Error.

Generally verdict of trial court will not be disturbed if there is substantial evidence

to support it.


Even where there is substantial evidence to sustain a judgment, it will nevertheless

be reversed if from all the evidence it is clear that a wrong conclusion was reached.

5. Railroads.

In action against railroad for death of driver of automobile resulting from shock

when he was carried 1,287 feet in automobile on pilot of engine which struck

automobile at crossing, held not clear that lower court reached wrong conclusion that

that fatal shock occurred after train passed place where it could have been stopped.

6. Railroads.

In action against railroad for death from shock of driver of automobile which was

carried 1,287 feet on pilot of engine after being struck at crossing, held that expert

testimony was unnecessary on issue as to whether fatal shock was received before or

after train reached point approximately 350 f eet from crossing.


On petition for rehearing. Rehearing denied. (Coleman, J., dissenting.)




Brown & Belford, for Appellants.

C. E. Robins and Merwyn H. Brown, for Respondent.

OPINION


While this court agrees with appellants upon the proposition of law that verdicts cannot

rest upon mere surmise, speculation, conjecture, guess, supposition or imagination, we cannot

agree with their contention that the verdict of the jury in this case was arrived at in such

manner. In our opinion the verdict was based upon facts established by substantial evidence.

The difference between appellants and this court, as was said in Solen v. V. & T. R. R. Co.,

13 Nev. 106, at 146, arises not so much upon the existence of the rule as to its application. In

the petition for rehearing, as in their opening brief, appellants rely upon the cases of Giannini

v. Southern Pacific Co., 98 Cal. App. 126, 276 P. 618; Cox v. St. Louis-San Francisco Ry.

Co., 223 Mo. App. 14, 9 S. W. (2d) 96, and Plinkiewisch v. Portland Ry. L. & P. Co., 58 Ore.499, 115 P. 151. These three cases were mentioned, but not discussed, in our former opinion.

Inasmuch, however, as no case on all fours with the one at bar has been found, either by court

or counsel, and because said cases are in some respects similar to the instant one, we deem it

proper and fair to the appellants that we should indicate why we have not considered them

controlling.

In Giannini v. Southern Pacific Co., supra, the train, which was moving at the rate of about

five miles an hour, proceeded 35 feet beyond the crossing where the collision took place. The

testimony of an expert engineer, that the engine could have been stopped within IHHWDIWHU DSSO\LQJWKHHPHUJHQF\EUDNHVZ DVWKRURXJKO\GLVFUHGLWHGLWFOHDUO\DSSHDULQJIURPWKH HYLGHQFHWKDWWKHUDLOVZHUHZHWQRWGU\DVWHVWLILHGE\VDLGH[SHUWDQGWKDWWKHZKHHOV

RIWKHHQJLQHVOLGDGLVWDQFHRIIHHWDIWHUWKH\ZHUHORFNHGZLWKWKHEUDNHV


10 feet after applying the emergency brakes, was thoroughly discredited, it clearly appearing

from the evidence that the rails were wet, not dry, as testified by said expert, and that the

wheels of the engine slid a distance of 18 feet after they were locked with the brakes. The

uncontradicted testimony of the rain crew was that when it became obvious that deceased was

attempting to cross the track, the switchman gave the engineer the emergency stop signal,

jumped from the car, and shouted to the deceased to attract his attention, and that the engineerimmediately applied the emergency brakes and did everything he could to bring the train to a

stop. Death was instantaneous, deceased's brains having been knocked out. In said case the

court refused to apply the last clear chance doctrine at all. The court said, “Certainly the

doctrine of last clear chance never meant a splitting of seconds when emergencies arise,” and

again, “The words mean exactly as they indicate, namely, last clear chance, not possible

chance.” It is very clear to this court that the case at bar is neither a possible chance case, nor



one involving a splitting of seconds. In the Deiss case there is clear and satisfactory evidence

showing that the train proceeded 1,287 feet from the point of collision, whereas it could have

been stopped within 350 feet from that point. In the Giannini case the court of appeal held

that defendants' negligence could be determined only by speculation. In the Deiss case the

negligence of defendants, from a point approximately 350 feet west of the Bridge street

crossing to the place where the engine stopped, is clearly established by positive and experttestimony. The statement of the court in Giannini case to the effect that the place where the

injuries were received could be determined only by speculation may well be applicable under

the facts of that case. It is our opinion that it is not applicable in the case at bar. In the

Giannini case the court said that the burden was upon plaintiffs to show that the injuries were

received at the place where the train stopped. In the Deiss case it was not necessary for SODLQWLIIWRSURYHWKDWWKHIDWDOVKRFNZDVUHFHLYHGDWVRPHFHUWDLQDQGH[DFWSODFH ZHVWHUO\IURPWKHSRLQWZKHUHWKHWUDLQFRXOGKDYHEHHQVWRSSHGLWZDVRQO\QHFHVVDU\ IRUSODLQWLIIWRSURYHWKDWVDLGVKRFNZDVUHFHLYHGDQ\ZKHUHEHWZHHQWKHSRLQWZKHUHWKH WUDLQFRXOGKDYHEHHQVWRSSHGDQGWKHSODFHZKHUHLWGLGVWRSDQGDVZLOODSSHDUODWHU KHUHLQSODLQWLIIVSURRILQWKDWUHJDUGZDVQRWUHTXLUHGWREHEH\R QGDUHDVRQDEOHGRXEW EH\RQGDQ\GRXEWWRDFHUWDLQW\RUFOHDUDQGVDWLVIDFWRU\EXWRQO\DSUHSRQGHUDQFHRI

WKHHYLGHQFH


plaintiff to prove that the fatal shock was received at some certain and exact place westerly

from the point where the train could have been stopped; it was only necessary for plaintiff to

prove that said shock was received anywhere between the point where the train could have

been stopped and the place where it did stop, and as will appear later herein, plaintiff's proof

in that regard was not required to be beyond a reasonable doubt, beyond any doubt, to a

certainty, or clear and satisfactory, but only a preponderance of the evidence.In Cox v. St. Louis-San Francisco Ry. Co, supra, plaintiffs claimed that the train should

have been stopped in from 60 feet to 80 feet, whereas defendant's testimony was to the effect

that the train was stopped in approximately 90 feet, that it could not have been stopped with

safety any quicker, and that those in charge of the train, the moment they saw the automobile,

did all in their power to stop. Death was the result of physical injuries. In said case the court

said: “But, if it be conceded that there was substantial evidence tending to show that this

train, under the conditions, should have been stopped in from 60 feet to 80 feet from the point

where the effort to stop was or should have commenced, then it would still have to appear

that such stopping would have been in time to have saved the life of Cinda Cox, the

deceased.” This court does not disapprove of anything in the above statement as applied tothe facts in the Cox case. Plaintiff in the case at bar had the burden of showing that the fatal

shock was received somewhere between the place where the train could have been stopped

and the place where it did stop. The instant case differs from the Cox case in that the verdict

of the jury in this case was based upon facts and circumstances established by substantial

evidence, and not upon mere speculation. The fact that in the Cox case more than a page of

the opinion is devoted to a discussion of whether or not the train could have been stopped

sooner than it was, shows, especially in a case where the evidence clearly HVWDEOLVKHV



QHJOLJHQFHWKDWWKHIDFWRIDYLROHQWGUDJJLQJRIDQDXWRPRELOHZLWKDOLYLQJSHUVRQLQLW PDQ\WLPHVDVIDUDVZDVUHDVRQDEO\QHFHVVDU\ZRXOGEHDQLPSRUWDQWFLUFXPVWDQFH ZKLFKDORQJZLWKRW KHUIDFWVDQGFLUFXPVWDQFHVVXFKDVWKRVHLQWKH'HLVVFDVHZRXOG

HQDEOHDMXU\WRUHDFKDYHUGLFWRQWKHEDVLVRIVXEVWDQWLDOHYLGHQFHQRWPHUHFRQMHFWXUH


establishes negligence, that the fact of a violent dragging of an automobile, with a living

person in it, many times as far as was reasonably necessary, would be an important

circumstance which, along with other facts and circumstances such as those in the Deiss case,

would enable a jury to reach a verdict on the basis of substantial evidence, not mere

conjecture.

In Plinkiewisch v. Portland Ry. L. & P. Co., supra, plaintiff's intestate, a pedestrian, was

struck and killed by one of defendant's street cars, which at the time was moving at a rate

from two to four miles an hour, and which carried deceased a distance of some 40 to 60 feet

after he was struck. It does not appear within what distance plaintiff claimed the street carshould have been stopped. Death was the result of physical injuries. The statement of the

court in said case to the effect that “The whole accident was one transaction, and, to attempt

to cut it into fragments it would have been necessary to require the jury to depart from the

realm of proof and enter the domain of speculation,” may be applicable to the facts of that

case, which appears to be another “splitting-of-seconds” case. But in our opinion it is not

applicable to the facts in the case at bar, wherein the accident was a transaction which can and

should be segregated in at least two particulars. First, the train could have been stopped

within 350 feet of the Bridge street crossing, but as a matter of fact was not stopped until it

reached its regular stopping place at the station in Winnemucca—the engine stopping at a

point 1,287 feet from said Bridge street crossing. Second, the defendants would not have beennegligent had they stopped the train within approximately 350 feet of the Bridge street

crossing, but from said point where the train could have been stopped to the place where the

train was actually stopped, the defendants were clearly negligent.

In Pacheco v. Southern Pacific Co., Cal. App., 19 P. (2d) 251, deceased, while operating a

truck, was struck by one of defendant's trains at a street intersection and carried about 350

feet before the train ZDVEURXJKWWRDVWRS


was brought to a stop. Death resulted from the collision. The speed at which the train was

proceeding does not appear, nor does it appear whether the train crew did all they could to

stop the train as soon as, with safety, they reasonably could. Plaintiffs on appeal did not rely

upon the last clear chance doctrine. The statements made by the court in the last paragraph of

its opinion in the Pacheco case must be interpreted in the light of the facts and circumstances

in that case. It is true in the instant case that it was necessary for the plaintiff to prove, by a

preponderance of evidence, that Deiss would not have died had the train been stopped within



350 feet; but whereas, in the Pacheco case, the court was of opinion that the jury would have

had to resort to conjecture in considering the question whether deceased might not have been

killed had the train been stopped sooner, in the case at bar there were facts and circumstances

clearly established by both positive and expert testimony from which the jury, as reasonable

men, could find that Deiss received the fatal shock more than 350 feet westerly from the

Bridge street crossing.We must remember, in the consideration of the cases most relied on by appellants, that

“Every judgment must be read as applicable to the particular facts proved, or assumed to be

proved, since the generality of the expressions which may be found there are not intended to

be expositions of the whole law, but governed and qualified by the particular facts of the case

in which such expressions are to be found. A case is only authority of what it actually

decides.” Lord Halsbury, in Quinn v. Leathern, 1 Br. Rul. Cas. 209, as quoted in Jensen v.

Praders, 39 Nev. 466, 159 P. 54, and De Remer v. Anderson, 41 Nev. 287, 169 P. 737.

The collision, which did not take place as a result of defendants' negligence, was itself

violent, and if the train had been stopped much sooner than it was this court might be

disposed to reverse a judgment for plaintiff, even if the train had proceeded for some GLVWDQFH

EH\RQGWKHSRLQWZKHUHLWFRXOGZLWKUHDVRQDEOHFDUHKDYHEHHQVWRSSHGEXWLIZHZHUH WRDGRSWVRPHRIWKHFRQWHQWLRQVPDGHE\DSSHOODQWVZHZRXOGEHUHTXLUHGWRUHYHUVH

WKLVFDVHHYHQLIWKHDXWRPRELOHKDGEHHQGUDJJHGWHQRUWZHQW\WLPHVDVIDUDVLWZDV


distance beyond the point where it could, with reasonable care, have been stopped; but if we

were to adopt some of the contentions made by appellants, we would be required to reverse

this case even if the automobile had been dragged ten or twenty times as far as it was.

In the Deiss case the automobile, after being carried about fifty feet, began to drag on oneof its rear axles, and this dragging continued for more than 1,200 feet. It was not slight, but

violent. The furrow made by the end of the axle was about five inches wide and six inches

deep, and where the engine stopped the end of the axle was resting in the end of the furrow.

More than three-fourths of this dragging was the direct result of the negligence of defendants.

In the Deiss case there is not, as there was in some of the cases relied on by defendants, any

conjecture, surmise or guess as to the negligence of defendants in not stopping the train as

quickly as it reasonably could have been stopped. Nor is there any conjecture, surmise or

guess as regards defendants' failure to do all they could to save Deiss' life. We do not say that

the trainmen intended to cause Mr. Deiss any injury. We believe that trainmen, as a class, are

scrupulously careful of the lives and safety of others. But in the absence of any showing to the

contrary, it is clear that the testimony adduced in behalf of plaintiff shows, by much more

than a preponderance of the evidence, that defendants were negligent, and that there was

substantial evidence from which a jury, as reasonable persons, could find that said negligence

was the proximate cause of Deiss' death.

1. Reasonable men and women might, indeed, have differed as to whether the fatal shock

was received easterly or westerly from the place where the train could have been stopped.

Had the jury returned a verdict for the defendants, this court on appeal would undoubtedly



have upheld that verdict, so far as the testimony is concerned, upon the ground that there is

substantial evidence to support such a verdict. In refusing a new trial, the district judge said

that had he been on the jury, he would have drawn the same FRQFOXVLRQIURPWKHHYLGHQFH WKDWWKHMXU\GLG


conclusion from the evidence that the jury did. If there be a doubt as to whether the jury's

verdict is supported by the evidence, that alone does not justify this court in reversing the

judgment. And this brings us to a discussion of certain law questions presented in the petition

for rehearing.

Some of appellants' citations are to cases in which the evidence was wholly circumstantial.

The instant case is not one of that kind. The witness Gayer saw the collision itself, and

followed the train to the place where the engine stopped. Mr. Wrede, shortly after the

collision, saw the automobile “bobbing along the track” on the pilot of the engine, “and in theengine was a man seated in the left side of the cab looking sort of towards the front of the

train. * * * He was fairly well leaned out this way; looked as though he might be looking for

something.” Mr. Wrede testified further that he was “watching the train all the time,

wondering what was going to happen next,” and that he and Mr. Davis “got in the car and

drove west along Haskell street, and we had reached a point very close to opposite the

yardmaster's office when the train finally stopped. Mr. Davis also saw the automobile on the

pilot of the engine shortly after the collision, and followed the train with Mr. Wrede, as above

stated. Both Wrede and Davis saw the train start to slow up about 300 feet westerly from the

Bridge street crossing, and saw the train brought to a slow, gradual stop.

2. If the evidence in this case had left the minds of the jurors in equipoise as regards any

essential going to make up a case under the last clear chance doctrine, it would have beentheir duty to return a verdict for the defendants; and a fortiori it would have been their duty to

return such a verdict had the evidence, in their minds, preponderated in favor of defendants

on any one of such essentials. But we cannot agree with appellants when they contend that in

this case it was the duty of the jury to return a verdict in their favor if plaintiff's proof, though

consistent with defendants' liability, was also consistent with their nonliability. Our YLHZRQ WKLVTXHVWLRQLVWKDWLISODLQWLIIVSURRILQWKHPLQGVRIWKHMXU\KDGEHHQHTXDOO\ FRQVLVWHQWZLWKGHIHQGDQWVOLDELOLW\DQGWKHLUQRQOLDELOLW\WKHQDYHUGLFWVK RXOGKDYHEHHQ UHWXUQHGIRUWKHGHIHQGDQWVIRUWKHUHDVRQWKDWSODLQWLIIZRXOGKDYHIDLOHGWRSURYHKHU

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view on this question is that if plaintiff's proof, in the minds of the jury, had been equally

consistent with defendants' liability and their nonliability, then a verdict should have been

returned for the defendants, for the reason that plaintiff would have failed to prove her case to

the jury by a preponderance of the evidence. But in our opinion it is not sound law that in a



case such as that at bar plaintiff must not only prove her case by a preponderance of evidence,

but her proof must also exclude any other hypothesis or inference than that of defendants'

liability.

In volume V of the second edition of Wigmore on Evidence, sec. 2498, the author, in

discussing burden of proof and the measure of jury's persuasion, says: “In civil cases it should

be enough to say that the extreme caution and the unusual positiveness of persuasion requiredin criminal cases do not obtain. But it is customary to go further, and here also to attempt to

define in words the quality of persuasion necessary. It is said to be that state of mind in which

there is felt to be a ‘ preponderance of evidence' in favor of the defendant's proposition.”

Citing, amongst other cases, Devencenzi v. Cassinelli, 28 Nev. 222, 81 P. 41. In the case just

cited this court said: “The term ‘preponderance of evidence' is well defined in an instruction

given to the jury in the case of Strand v. Chicago Ry. Co., reported on appeal in 67 Mich.

380, 34 N. W. 712, and therein pronounced a ‘correct' definition of the term. The instruction

as given is as follows: ‘The burden of proof rests upon the plaintiff to make out the facts

which I have stated to you are essential to establish his case by a fair preponderance of

evidence. By this is meant such evidence as, when weighed with that which is offered to

oppose it, has more convincing power in the minds of the jury. It is not a technical term at all,but means simply that evidence which outweighs that which is offered to oppose it. It does

not necessarily mean that a greater number of witnesses shall be produced on the one side or

the other, but that, upon the whole evidence, the jury believe the greater SUREDELOLW\RIWKH WUXWKWREHXSRQWKHVLGHRIWKHSDUW\KDYLQJWKHDIILUPDWLYHRIWKHLVVXH´7KHUXOHWKDW SODLQWLIIQHHGRQO\SURYHKLVRUKHUFDVHE\DSUH SRQGHUDQFHRIWKHHYLGHQFHLVFOHDUO\

LPSOLHGE\WKHIROORZLQJODQJXDJHLQ*DXOWY*URVV1HY


probability of the truth to be upon the side of the party having the affirmative of the issue.'”

The rule that plaintiff need only prove his or her case by a preponderance of the evidence is

clearly implied by the following language in Gault v. Gross, 39 Nev. 274, 155 P. 1098: “To

maintain an affirmative defense it must be established by a preponderance of the evidence.”

In 23 C. J., pp. 12-14, we read: “In ordinary civil actions a fact in issue is sufficiently proved

by a preponderance of evidence, and the verdict or finding should be based upon the

preponderance of the evidence, whether the evidence is direct or circumstantial. Under this

rule, a party is not required to prove his case ‘beyond a reasonable doubt,' ‘beyond doubt,'

‘beyond any doubt,' ‘beyond dispute,' ‘beyond question,' ‘conclusively,' ‘to a certainty,' or a

‘moral,' ‘reasonable,' or ‘absolute' certainty, ‘to the satisfaction of the jury,' or by evidence

which is ‘clear and conclusive,' ‘clear and satisfactory,' ‘clear and unequivocal,' ‘positive and

conclusive,' or such as to ‘satisfy' the jury, or ‘exclude the truth of any other theory.'”

Devencenzi v. Cassinelli, supra, is one of the very numerous cases cited in the notes on page

13. And see Roediger v. U. P. R. Co., 95 Kans. 146, 147 P. 837. What constitutes

preponderance of evidence is discussed commencing at page 16 of 23 C. J., and the

Devencenzi case is again cited in note 91. In the same volume of Corpus Juris the author of

the text, in considering the matter of sufficiency of evidence, and after stating the rule that



verdicts cannot rest upon mere surmise, speculation, conjecture, or suspicion, says, at page

53, “Proof of a fact need not, however, be made by any particular kind or class of evidence,

but the triers of fact may seek the truth within the field of the evidence to the utmost

boundaries of reason which rational men of common sense might set without passing beyond

the line between the field of probabilities and the field of conjecture.” And in the case of

Oldenberg v. State Industrial Comm., 159 Wis. 333, 150 N. W. 444, cited on page 53 of 23C. J., the court held that, “To support an argument that an ultimate conclusion of fact has QR HYLGHQFHWRVXVWDLQLWWKHUHPXVWEHDQDEVHQFHRIDOOHYLGHQFHRUDQDEVHQFHRIDQ\

UHOHY DQWHYLGHQFH´


no evidence to sustain it, there must be an absence of all evidence, or an absence of any

relevant evidence.”

The cases cited in appellants' petition to the effect that the jury is not permitted to base one

inference upon another are not pertinent. The facts and circumstances upon which the jury

based its inference that the fatal shock was received westerly from the place where the train

could have been stopped were proved in this case as primary facts, and the verdict was not

based upon any pyramiding of inferences.

The statement in our former opinion that Deiss was “all this time” trying desperately to

save himself is justly criticized in the petition for rehearing. The evidence does not show

exactly where or when Deiss reached out through the door of his car to gain a hold on the iron

bar on the pilot of the engine. But whether deceased began trying desperately to save himself

before or after the place where the train could have been stopped was not one of the main

questions considered by the court. He may have commenced trying to save himself before or

after, or at the time the engine reached said place; but it is certain, from clearly establishedfacts, that he started trying to save himself either at the time of the collision or at some time

between then and the time the train was stopped.

In the petition for rehearing counsel say: “We believe it to be a fair statement that the

majority opinion sets out three items of evidence to justify the verdict: first, the fact that

Deiss was ‘still in the automobile but leaning through the window of his car and holding onto

an iron bar on the pilot' so tightly ‘that it was necessary to pry his fingers loose'; second, that

Deiss had ‘a look in his eyes described by one witness as “wild,” and which another witness

testified he would never forget'; third, that ‘when the doctor arrived at the place where Deiss

was removed from the automobile and engine pilot, he found “a very rapid, weak heart

action, very slow respiration * * * no pulse.”' Upon this evidence the court states, ‘We are notprepared to say * * * that the jury was not justified, as reasonable PHQLQILQGLQJWKDWWKH HYLGHQFHSUHSRQGHUDWHGLQIDYRURIWKHIDWDOVKRFNKDYLQJEHHQUHFHLYHGZHVWHUO\UDWKHU WKDQHDVWHUO\IURPWKHSODFHZKHUHWKHWUDLQFRXOGKDYHEHHQVWRSSHG´,WLVVPDOO ZRQGHUWKDWFRXQVHOVRHDUQHVWO\TXHVWLRQWKHFRUUHFWQHVVRIRXUGHFLVLRQLQYLHZRIWKHLU EHOLHIWKDWWKHDIRUHVDLGLWHPVRIHYLGHQFHZHUHVHWIRUWKLQWKHIRUPHURSLQLRQWRMXVWLI\

WKHMXU\VYHUGLFW




men, in finding that the evidence preponderated in favor of the fatal shock having been

received westerly, rather than easterly, from the place where the train could have been

stopped.'” It is small wonder that counsel so earnestly question the correctness of our

decision, in view of their belief that the aforesaid items of evidence were set forth in the

former opinion to justify the jury's verdict. If our former opinion did not state with sufficient

clearness the main facts and circumstances upon which we based our decision, it should now

be clear that it was based mainly upon the distance the car, with deceased in it, was

negligently dragged, as compared with the distance within which the train could have been

stopped; the violence attendant upon said dragging, as shown by the width and depth of the

furrow made by the rear axle of the automobile; the fact that Deiss was but slightly injured

physically, was partly conscious when laid on the ground after the train stopped, lived until

the next day, and strove with evident desperation to save himself after the collision. A

considerable number of facts were set forth in our former opinion, in an attempt to make a

fair statement. It is our understanding that a fair and correct statement of the facts should bemade, regardless of which party they may tend to favor. There are other facts which might

have been included in our former opinion, including the following: When the engine stopped,

Deiss was not in the seat of his automobile, but was almost out of his car, “laying clear out up

to here (designating) out of the window,” “leaning out it appeared as far as he could reach,

out of the side of the car”; when his fingers were pried loose from the iron bar on the pilot of

the engine, he settled back into the driver's seat in his car; shortly after he was laid on the

ground, six or eight feet from the cylinder of the engine, “somebody reversed the engine and

the steam hissed out at him. He turned over. He was scared, kept throwing his head one way

then the other. He was scared.” Concerning this, another witness testified: “When they started

to back this engine up, that VFDUHGKLP


scared him. He kind of flinched to get away from it. I told him not to be afraid, he was all

right. He just kind of looked wild at me.” If these facts had also been stated in our former

opinion, it would not mean that they were the chief facts upon which our conclusion was

based.

3. Where there is a question as to the sufficiency of the evidence to support a verdict, this

court must abide by the rule which has been followed in a long line of Nevada cases

extending over a period of more than sixty years, namely, that a verdict of the trial court will

not be disturbed if there is substantial evidence to support it. Leete v. Southern Pac. Co., 37

Nev. 49, 139 P. 29; Williams Estate Co. v. Nevada Wonder Mining Co., 45 Nev. 25, 196 P.

844; Weck v. Reno Traction Company, 38 Nev. 285, 149 P. 65; Solen v. V. & T. R. R. Co.,

13 Nev. 106.

4, 5. To the foregoing general rule there is a well-recognized exception, to the effect that even

where there is substantial evidence to sustain a judgment, it will nevertheless be reversed if,



from all the evidence, it is clear that a wrong conclusion has been reached. Valverde v.

Valverde, 55 Nev. 82, 26 P.(2d) 233. It is not clear to a majority of the members of this court

that a wrong conclusion was reached in this case in the district court.

The case at bar was a close one for the jury in the lower court. If the jury had returned a

verdict for the defendants, this court would undoubtedly have declined to disturb that verdict.

If the facts in this case had been the same as in the Giannini case, we would reverse the judgment of the lower court.

In the petition for rehearing appellants take the position that the question as to whether the

fatal shock was received easterly or westerly from the place where the train could have been

stopped is one so entirely within the realm of the sciences that laymen cannot be expected to

form an intelligent opinion thereon, and for that reason any finding by a jury upon such a

question, without the benefit of expert testimony, must necessarily EHEDVHGXSRQPHUH FRQMHFWXUH


be based upon mere conjecture. It appears that this contention is made for the first time on

petition for rehearing. Aside from that, however, we are not of the opinion that the question

above mentioned is so far removed from the realm of common experience as to prevent a

jury's drawing a correct inference when facts and circumstances such as those in the Deiss

case are fully placed before them. Shock resulting from accident, as well as from other

causes, is of common occurrence. At times shock causes death, but very frequently it does

not. While expert testimony in this case might have been of some assistance, depending upon

such considerations as the knowledge and experience of the experts and their

disinterestedness or bias, we cannot agree that under such evidence as presented, expert

testimony was necessary on the issue as to whether the fatal shock was received before orafter the train reached a point approximately 350 feet from the crossing. The testimony of

qualified experts, particularly if disinterested, would very likely have assisted the jury, but

even without such testimony there was substantial evidence to support the verdict.

And see 22 C. J., p. 639, sec. 733.

The petition for rehearing is denied.

Coleman, J.: I dissent.

____________

ÐÐÐÐ56 Nev. 183, 183 (1935) Strassburg v. MontgomeryÐÐÐÐ

STRASSBURG v. MONTGOMERY Et Al.

No. 3103

August 5, 1935. 47 P. (2d) 859.



1. Trial.Where broker by agreed facts was “compelled” to replace, with other bonds to his ultimate purchaser,

bonds which had been fraudulently converted and sold to broker and owner had given notice that the

bonds were stolen, broker held purchaser in due course, entitled to the bonds.

Word “compelled” in agreed statement of facts that broker was “compelled” to buy in open

market other bonds and deliver to ultimate purchaser in place of bonds fraudulently convertedand sold to broker meant that it was legal duty of broker to substitute the other bonds for those

converted.

2. Brokers.Broker who sells securities which were theretofore stolen or lost or to which the title is called in

question must replace them with other securities of like kind and amount.

3. Estoppel.Owner who had given possession of bonds, for purpose of redemption, to party who later converted

and sold them to broker held estopped from denying that broker had title to the bonds where broker

bought them in good faith and was “compelled” to replace them to his ultimate purchaser, as against

contention that statute regarding sale of converted property applied (Comp. Laws 1929, sec. 10337).

4. Bonds.Law does not cast on individual imperative duty of being cautious in handling negotiable securities,

but does hold him liable for his negligence when that negligence results in perpetration of injury on

innocent third party.

5. Trial.Where no estoppel is pleaded, but evidence is introduced without objection, showing facts justifying

court in holding a party estopped, failure to plead estoppel is immaterial.


Action by F. P. Strassburg against Mrs. Hugh Montgomery and another. From a judgment

for defendants, and order denying motion for new trial, plaintiff appeals. Judgment and

order reversed and cause remanded with directions. (Ducker, C. J., dissenting.)

Chas. A. Cantwell, for Appellant:

Plaintiff was a holder of the bonds in due course, IURPWKHYHU\LQFHSWLRQRIWKH WUDQVDFWLRQEHFDXVHRIKLVREOLJDWLRQWRPDNHWKHPJRRGLIDQ\LQILUPLW\RIWLWOH

DSSHDUHG


from the very inception of the transaction, because of his obligation to make them good if anyinfirmity of title appeared. Hibbs v. Brown, 112 App. Div. 214, aff. 190 N. Y. 167, 82 N. E.

1108; Gruntal v. U. S. F. & G. Co., 259 N.Y. S. 562, aff. 173 N. E. 682; Pratt v. Higginson,

230 Mass. 256, 119 N. E. 661, 1 A. L. R. 714; Spooner v. Holmes, 102 Mass. 503.

By sec. 4528 N. C. L., every holder is deemed prima facie to be a holder in due course.

Hence, C. & Co. are clearly deemed to be holders in due course, prima facie, and there is no

evidence to the contrary; the same is true of any subsequent purchasers from C. & Co.



And so, even if the court should be inclined to hold that plaintiff was not a holder in due

course when the bonds were first in his possession, when he thus regained possession of them

from a holder in due course, under the definite provisions of section 4527 N. C. L., plaintiff

then became a holder in due course. See, also, 8 C. J. 466, sec. 685.

Further, the defendants were, under the circumstances, estopped from asserting title as

against plaintiff. Section 10337 N. C. L. does not infringe upon or abrogate the rule of estoppel. Stone v. Mayre, 14 Nev. 362; Gass v. Hampton, 16 Nev. 185; Robinson v. G. M. M.

Co., 46 Nev. 291, 206 P. 399. By the cases heretofore adjudicated in this court, the

defendants have clearly so acted to the disadvantage of a clearly innocent party (the plaintiff)

as to be estopped from now asserting any title to the bonds. Bercich v. Marye, 9 Nev. 312;

Stone v. Marye, 14 Nev. 362; Gass v. Hampton, 16 Nev. 185; Robinson v. G. M. M. Co.,

supra.

Harry Dunseath and J. M. Frame, for Respondents:

Nevada, California, and Illinois law and decisions, cited in 8 C. J. p. 481, explicitly state

that a broker who receives notes merely for the purpose of sale, and obtains his brokerage

therefor, is not a holder in due course, and such a rule is reiterated by section 52 of ournegotiable instruments act (sec. 4521 N. C. L.), which provides that in order to constitute one

a holder L QGXHFRXUVHKHPXVWKDYHWDNHQWKHLQVWUXPHQWIRUYDOXHDQG³YDOXH´LVGHILQHG E\VHFWLRQ


in due course he must have taken the instrument for value, and “value” is defined by section

4494. In order to meet the requirements of the statute and in order to be a bona fide purchaser

for value, it is essential that the holder of negotiable paper take the same either as a purchaseror a pledgee. It is clear that a consideration must pass from the holder to the person from

whom he receives the instrument in order to constitute the former a holder in due course.

Uniform Fraudulent Conveyance Act, Stats. 1931, p. 392, secs. 1 and 3.

A mere agent or broker selling property on commission is not a purchaser within the

meaning of the law. Am. Valley Co. v. W. F. Wyman, 92 Mo. App. 295.

One who wrongfully takes goods cannot convey title. Robertson v. C. O. D. Garage Co.,

45 Nev. 160, 199 P. 356.

The defense of estoppel urged by appellant is not available in the case at bar for the following

reasons: (1) That estoppel in pais was not pleaded. (2) Evidence to support an estoppel and

the pleading under which evidence thereof is admitted must show distinctly that the partyclaiming its benefit was actually deceived and acted to his detriment by reason of the acts and

conduct or silence of the other party, which acts claimed as an estoppel influenced his action

and caused the party claiming the estoppel to act differently than he would have acted had it

not been for such conduct. Sharon v. Minnock, 6 Nev. 377.

OPINION




Plaintiff brought this action to obtain a judgment declaring him to be the sole owner of the

title to certain bonds described in the complaint. He has appealed from an adverse judgment

and an order denying a motion for a new trial.

It is agreed in this case that on January 3, 1934, WKHSODLQWLIILVDQGDWWKHWLPHRIWKH

WUDQVDFWLRQKHUHLQDIWHUPHQWLRQHGZDVDGXO\DQGUHJXODUO\OLFHQVHGEURNHUHQJDJHGLQ WKHEXVLQHVVRIEX\LQJDQGVHOOLQJVWRFNVERQGVDQGRWKHUVHFXULWLHVLQ5HQR1HYDGD

WKDWWKHGHIHQGDQW0UV


the plaintiff is, and at the time of the transaction hereinafter mentioned was, a duly and

regularly licensed broker engaged in the business of buying and selling stocks, bonds, and

other securities in Reno, Nevada; that the defendant, Mrs. Esther G. Montgomery, was the

owner of six certain bonds, negotiable by delivery, mentioned and described in the complaint;

that on said day one G. W. Childress, with felonious intent to defraud the said Montgomeryand to steal and fraudulently convert the same to his own use and benefit, falsely and

fraudulently represented to the said Montgomery that the company issuing said bonds had

called the same in for redemption, and would pay therefor the sum of $1,020 for each bond;

that said Montgomery, believing said statement to be true, delivered said bonds to said

Childress for the sole purpose of transmission to the company issuing the same, for the

purpose of redemption, upon the condition a draft for the value should be sent direct to Mrs.

Montgomery; that at the time the bonds were so delivered to Childress he was the accredited

agent of National Loan & Holding Corporation, Limited; that said Childress thereafter

unlawfully, fraudulently, and feloniously embezzled said bonds and converted the same to his

own use; that said Childress, under the pretense that he was the owner of said bonds,delivered the same to plaintiff to be sold for him at the market value, upon commission; that

plaintiff at the time of receiving said bonds had no actual notice that Childress was not the

owner of said bonds, or of any acts and conduct on his part in fraudulently obtaining

possession of the same; that plaintiff did negotiate the sale of said bonds for the full market

value thereof and paid the proceeds thereof, less commission, to said Childress.

It is further agreed that after the plaintiff had sold said bonds and delivered the proceeds

thereof to Childress, Mrs. Montgomery caused notices to be given to the issuing company and

other security dealers throughout the United States that said bonds were stolen property,

which notice caused the ultimate purchaser thereof WRGHPDQGWKHUHEHGHOLYHUHGWRKLPVL[

RWKHUERQGVRIOLNHVHULHVLQWKHSODFHRIWKRVHWRZKLFK0UV


to demand there be delivered to him six other bonds of like series in the place of those to

which Mrs. Montgomery claimed title; that the plaintiff was thereupon compelled to buy in

the open market other bonds of like character and deliver them to the ultimate purchaser; and



that he now has in his possession the six bonds originally delivered to him.

On this appeal the plaintiff makes two points: (1) That he is the holder of the bonds in

question in due course, hence Mrs. Montgomery cannot successfully assert title thereto; and

(2) that Mrs. Montgomery should be estopped from asserting title thereto. We think both

contentions are well founded.

1, 2. As to the first contention, we must have in mind that in the agreed statement of factsit is stated that the plaintiff was “compelled” to buy in the open market six other bonds and

deliver them to the ultimate purchaser of the bonds in question. The word “compelled” is

significant. The sense in which it was used must be determined from the context. It was held

in Sinnott v. District Court, 201 Iowa, 292, 207 N. W. 129, that the word “compelled” in a

statute was used in the sense of duty or obligation. In Temple Lumber Co. v. Living (Tex.

Civ. App.), 289 S. W. 746, it was held that “compelled” and “enforced” have the same

primary meaning. It is very evident from the context in the agreed statement in this case that

the word “compelled” was used in the sense that it was the legal duty of the plaintiff to

substitute other bonds for the ones in question. If this is true, he stepped into the shoes of the

ultimate purchaser. We think we must take this view, if for no other reason, because under the

rules of the New York Stock Exchange, and of other stock exchanges, a broker who sellssecurities which were theretofore stolen or lost, or to which the title is called in question,

must replace them with other securities of like kind and amount. This duty rests upon the

broker who first introduced them into the market, as did plaintiff. The Law of Stock Brokers

and Stock Exchanges, Meyer, pp. 523, 524.


As we view it, the conclusion which we have reached is in accord with the better reasoned

authority. In Gruntal v. National Surety Co., 254 N. Y. 468, 173 N. E. 682, 683, 73 A. L. R.1337, where the identical question here involved was presented, the court said: “When the

brokers took back the stolen bonds, as above stated, they paid value for them; they made good

their delivery by substituting other bonds of like kind and nature. * * * The substituted bonds

were their property. The agency for their customers had terminated. They therefore had all the

rights of these holders in due course, unless they came within the exception; that is, were

parties to the fraud or illegality affecting the title to the bonds.”

While the case of Pratt v. Higginson, 230 Mass. 256, 119 N. E. 661, 1 A. L. R. 714, is not

squarely in point, we think the reasoning of it supports the conclusion which we have

reached.

It is suggested that the case of Kimball v. Billings, 55 Me. 147, 92 Am. Dec. 581, iscontrary to our conclusion. We think not. There was not involved in that case a state of facts

which makes it an authority in point in the instant case.

3. In our opinion the plaintiff was a purchaser in due course.

We come now to the second question; that is, Should Mrs. Montgomery be estopped? We

think she should. The only objection urged to this contention is section 10337 N. C. L., which

reads: “All property obtained by larceny, robbery, burglary, or embezzlement, shall be

restored to the owner, and no sale, whether in good faith on the part of the purchaser, or not,



shall divest the owner of his right to such property. Such owner may maintain his action, not

only against the felon, but against any person in whose possession he may find the property.”

This section has been upon the statute books of this state since 1861 (Stats. 1861, p. 67). In

Robinson v. Goldfield M. M. Co., 46 Nev. 291, 206 P. 399, 401, 213 3


P. 103, we said, with reference to it: “We do not perceive the force of the court's ruling, or of

the contention of counsel for the intervener, that the statute was intended and designed to

abrogate the general law of estoppel. * * *”

In the case of Swan v. N. B. Australasian Co., 2 H & C Reports (Eng.) 179, it is said: “A

person who does not lock up his goods, which are consequently stolen, may be said to be

negligent as regards himself, but inasmuch as he neglects no duty which the law casts upon

him, he is not in consequence estopped from denying the title of those who may have,

however innocently, purchased those goods from the thief. * * *”4. There the distinction is recognized between a duty which the law imposes upon one as

to the rights of others, and where no such duty is imposed. In the instant matter it may be said

that the law imposed upon Mrs. Montgomery the duty of avoiding such active negligence as

might result in the injury of others. In other words, the law does not cast upon an individual

the imperative duty of being cautious in the handling of negotiable securities, but it does hold

him liable for his negligence when that negligence results in the perpetration of an injury

upon an innocent third party. Such was the holding in Gass v. Hampton, 16 Nev. 185, where

the owner of stocks left certificates of stock with another in such a condition that they might

pass by delivery to an innocent third person. In disposing of the case, the court said: “Under

these circumstances the case comes clearly within the principle, announced in Thompson v.

Toland, 48 Cal. [99] 112, that ‘the party who places another in a position to enable him topractice the fraud should suffer the loss rather than an innocent person who deals with him on

the faith of the usual indicia of ownership with which the true owner has invested him.'”

See, also, Keyworth v. Nevada Packard Mines Co., 43 Nev. 428, 438, 186 P. 1110; Ewart

on Estoppel, p. 395.


We think Mrs. Montgomery should be estopped.

5. It is true, as contended by counsel for respondent, that plaintiff did not plead estoppel,but where no estoppel is pleaded, but evidence is introduced showing facts which justify the

court in holding that a party is estopped, without objection, the failure to plead estoppel is

immaterial. In this case the parties stipulated to the facts, which make it a stronger case.

Estoppel may be urged by the plaintiff. Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994;

Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Flandreau v. Downey, 23 Cal. 354; Bates v.

Norcross, 17 Pick. (Mass.) 14, 28 Am. Dec. 271; Gray v. Pingry, 17 Vt. 419, 44 Am. Dec.



345, and note; McDonnell v. De Soto, etc., 175 Mo. 250, 75 S. W. 438, 97 Am. St. Rep. 592;

Standard Sanitary Mfg. Co. v. Arrott, 135 F. 750, 68 C. C. A. 388.

For the reasons given, the judgment and order appealed from are reversed, and the case is

remanded with directions to the trial court to enter a judgment in favor of plaintif f, as prayed.

Taber, J.: I concur.

Ducker, C. J., dissenting:

I cannot lend my assent to the prevailing opinion. It reads an exception into section 10337

N.C. L. against the plain language of the provision.

Childress embezzled the bonds when he converted them to his own use. The statute gives

the owner the right of restoration of his property in such a case against the felon or any person

in whose possession it may be found. As to the kind of property in regard to which the listed

crimes may be committed, the terms of the section are all inclusive. They except none. The

majority opinion excepts negotiable instruments. This on the theory that Mrs. Montgomery

was actively negligent in permitting herself to be tricked out of her bonds. It might be

questioned whether she was negligent, either actively or passively. But be that as it may, thestatute does not purport to divest a negligent owner of his SURSHUW\ULJKW


property right. It has nothing to say about negligence or anything else that may work a

forfeiture.

Authority for holding Mrs. Montgomery to be estopped is sought in the case of Robinson

v. Goldfield M. M. Co., 46 Nev. 291, 206 P. 399, 213 P. 103. This decision is not at all

apposite. Property obtained by larceny, robbery, burglary, or embezzlement was not involvedin that case. The dicta relied upon, if thought to come in collision with the statute, should be

subordinated thereto. The felonious obtaining of property necessary to call into operation the

rule of the statute was not under consideration in Gass v. Hampton, 16 Nev. 185, also cited in

the majority opinion.

If it be thought that section 10337 N. C. L., which has been on the statute books since

1861, is inequitable on account of its scope, resort for amendment should be had to the

legislature.

The judgment of the trial court should be affirmed.


November 15, 1935.

Per Curiam:

Rehearing denied.



Ducker, C. J.: I dissent.

____________

ÐÐÐÐ56 Nev. 192, 192 (1935) Los Angeles & Salt Lake Railroad Co. v. LytleÐÐÐÐ

LOS ANGELES & SALT LAKE RAILROAD

COMPANY Et Al. v. LYTLE

No. 3097

August 5, 1935. 47 P. (2d) 934.

1. Railroads.Railroad, in absence of statute requiring lights or other precautions, is not chargeable with negligence

merely because its train, while moving or at rest on crossing, is struck by auto traveling on highway in

daytime or at night, on account of darkness alone.

2. Railroads.Railroad is negligent and liable for injuries caused by reason of allowing its trains or cars to remain

on crossing unnecessarily, or for an unreasonable length of time.

3. Railroads.Degree of care required of railroad at crossing is such as ordinarily prudent person would exercise

under like circumstances, and must be increased where crossing is especially dangerous.

4. Railroads.Evidence that railroad car blocking highway was black, that highway was black and was extensively

used at night, that highway approached track through deep cut, and that railroad could have performed

necessary switching of cars without leaving highway blocked by motionless car, held sufficient showing

of negligence to render railroad liable for death of passenger in automobile which collided with car atnight.

5. Appeal and Error.Where automobile struck stationary railroad car at crossing before daylight while automobile was

traveling at moderate speed on black oiled highway which approached railroad track through deep cut,

there being no lights at crossing where black car on tract entirely blocked highway, and no warning other

than two railroad signs along highway, whether driver of automobile was contributorily negligent so as to

bar recovery for death of passenger in automobile held for trial judge in case tried without jury.

6. Railroads.Question of contributory negligence on part of motorist is generally for jury.

Appeal from the Eighth Judicial District Court, Clark County; E. P. Carville and Wm. E.

Orr, Judges.

Action by John M. Lytle, as administrator of the estate of Vilate Lytle, deceased, against

the Los Angeles & Salt Lake Railroad Company and others. From a judgment for plaintiff,

and a denial of their motion IRUDQHZWULDOGHIHQGDQWVDSSHDO




for a new trial, defendants appeal. Affirmed. (Coleman, J., dissenting.)

Leo A. McNamee, Frank McNamee, Jr., Malcolm Davis, and E. E. Bennett, for Appellants:

The liability of a railroad company for injury resulting from the collision of a road vehicle

with a car or train standing on a highway crossing is generally predicated upon negligence. St.

Louis, etc. R. Co. v. Guthrie (Ala.), 114 So. 215; 56 A. L. R. 1110. The only finding of fact

upon which plaintiff in this case could predicate negligence is that the defendants did not use

the measure of care and diligence required of a railroad company under the circumstances.

Even though this finding is too general and does not specify wherein the defendants failed to

use the required measure of care and diligence, and notwithstanding the court overruled

defendants' objection and exception thereto, there is no evidence whatsoever to show that any

peculiar circumstances or environment existed at the time of the accident which the

defendants' duty required them to guard against. There is not one scintilla of evidence that the

train crew knew or had reason to believe that the driver of an automobile, properly equipped

with brakes and lights, traveling along the highway in question at a reasonable rate of speedwith such care as an ordinary reasonable man would use, could not observe the gondola car

across the highway in time to avoid colliding with it. But, on the contrary, the crew knew that

the road was straight for over 1,200 feet, was protected by signs warning of the existence of

the railroad; that on many other occasions automobiles had stopped while the crossing was

blocked by gondola cars. The burden is on plaintiff to show such peculiar environment as to

charge defendants with a duty to provide a warning of the standing train on the crossing, and

such duty cannot be left to mere conjecture. St. Louis, etc. R. Co. v. Guthrie, supra.

There was no allegation, finding or proof that the car FRXOGQRWKDYHEHHQVHHQZLWKWKH DLGRIRUGLQDU\DXWRPRELOHOLJKWVDVXI ILFLHQWGLVWDQFHWRVWRSUXQQLQJLQWRLW


could not have been seen with the aid of ordinary automobile lights a sufficient distance to

stop running into it. But, on the contrary, the testimony of Lamond Laub shows that the car

could be seen a distance of fifty yards with the lights of the automobile he was driving, and

those lights were not very good.

The hazard created by the cut and the embankments was of approaching trains, not trains

standing on the crossing. A railroad train on a crossing is itself a notice of its presence.

Gallagher v. Montpelier, etc. R. R. Co. (Vt.), 137 Atl. 207, 52 A. L. R. 744; Witherby v.

Bangor Ry. (Me.), 158 Atl. 362; 52 C. J., p. 190, sec 1782.

It is not negligence in itself for a railroad company to allow a train of cars to stand on a

highway crossing. Crosby v. Great Northern (Minn.), 245 N. W. 31; Gulf Ry. v. Holifield

(Miss.), 120 So. 750; Plummer v. Gulf, etc. Ry. (La.), 153 So. 322; Jones v. Texas & P. Ry.

Co. (La.), 154 So. 768; Huddy Cyclopedia of Automobile Law (9th ed.), vol. 7-8, p. 129.

John M. Lytle, Jr., was guilty of negligence. We maintain that the action of a driver of an

automobile who approaches a railroad crossing which, on account of natural obstructions



known to him to exist, is as hazardous as the one here in question was found to be, and where

his view along the tracks is obscured until he reaches a point from ten to forty feet from the

track, at a speed of twenty-five to thirty miles per hour, is not the action of an ordinary

prudent man who has any regard for his own safety, and the court should so hold, as a matter

of law. The law requires that railroad crossings be approached with caution, and that greater

care must be exercised when darkness obscures the vision. 22 R. C. L. 1018, sec. 250.A motorist who runs into a railroad train blocking highway crossing is guilty of negligence

as a matter of law. Mailhot v. N. Y., N. H., etc. Ry. Co. (Mass.), 173 N. E. 422; Rape v.

Tennessee, etc. R. Co. (Ga.), 174 S. E. 551; Newsom v. Illinois Central Ry. Co. (La.), 122 So.

874.


Where an automobile driver could not stop after his lights made visible a train blocking

the crossing, the blocking of the crossing is not the cause of the injury, but is at most acondition. The lapse of time a train is on a crossing is merely a condition in which the

accident occurred, and not the cause thereof. Orton v. Pennsylvania Ry. Co., 7 Fed. (2d) 36;

Rowe v. Northern Pacific R. Co. (Ida.), 17 P. (2d) 352; Cleveland Ry. v. Gillespie (Ind.), 173

N. E. 708; Pennsylvania Ry. v. Huss (Ind.), 180 N. E. 919; St. Louis Ry. v. Guthrie, supra;

Brinson v. Davis (Ga.), 122 S. E. 643; Newsom v. Illinois, etc. R. Co. (La.), 122 So. 874.

We therefore respectfully submit that the plaintiff failed to prove actionable negligence on

the part of the defendants; that the negligence of John M. Lytle, Jr., was the proximate cause

of the injuries complained of, and, consequently, that the plaintiff is not entitled to recover.

Chas. Lee Horsey, for Respondent:

For a railroad to obstruct a crossing unnecessarily or for an unreasonable length of time isnegligence. It was proven in this case that the crossing was obstructed by the defendants,

unnecessarily, for about four minutes, under conditions of great hazard then and there

existing, known, or which, by the exercise of the care of an ordinarily careful, prudent person,

should have been known, to the employees in charge of the train, and that solely by reason

thereof the deceased received the injuries from which she died on the 12th day of February,

1932. This constituted actionable negligence on the part of the defendants. 22 R. C. L. p. 994;

Denton v. Missouri, Kansas & Texas Railway Co. (Kans.), 47 L. R. A. (N. S.), p. 820, 33

Cyc. p. 931; 52 C. J. 179, 180, 181, 211, 212; Chicago & N. W. Ry. Co. v. Prescott, 59 Fed.

237; Miller v. Atlantic Coastline R. Co. (S. C.), 138 S. E. 675; Central of Georgia Ry. Co. v.

Owen (Ga.), 48 S. E. 916; Freeman v. Terry (Tex.), 144 S. W. 1016.


In the case at bar, by the exercise of a little more care by the trainmen the crossing could

have been left open all of the period of five minutes the train was at the siding, except



probably for a few seconds, and not exceeding one minute, and Vilate Lytle would not have

been injured. It is certain that, if the train had been stopped east of the crossing, the engine

and tender would have been uncoupled and proceeded over the crossing (which latter required

only about three seconds) during the first minute of the five minutes that the train was there

prior to the Lytles reaching the crossing. And we have the right to assume that the trainmen

would have consumed as long a time in their switching operations, if the train had beenbroken and part of it left east of the crossing, as they did when stopped upon the crossing;

therefore, they would not, in fact, have started backing over the crossing to connect with the

remainder of the train until after the Lytles had reached the crossing, and the crossing would

have been clear and the collision avoided.

Clearly the defendants, under the extra hazardous conditions at the crossing, when same

was unnecessarily obstructed by the black gondola car, owed the duty of warning travelers,

either by a light or lights placed upon the car, or by having a trainman swing a lantern where

same could be seen by travelers upon the highway. Miller v. Atlantic Coastline R. Co. (S. C.),

138 S. E. 675 (supra).

John M. Lytle, Jr., was not guilty of negligence. He had the right, under the law, in

regulating the speed of his automobile, to place reliance upon the railroad companyperforming its duty in the premises, and, therefore, had the right to believe that there would

be no train standing upon the crossing unnecessarily, without lights, on that dark night, under

the conditions of hazard which the trainmen have admitted that they knew existed. He

observed carefully, in ample time to have stopped, before reaching the crossing, traveling at

not to exceed thirty miles per hour, DQGQRWVHHL QJRUKHDULQJDQ\HYLGHQFHVRIDPRYLQJ WUDLQDQGVHHLQJQROLJKWRUOLJKWVRIDQ\WUDLQVWDQGLQJXSRQWKHFURVVLQJRUDWUDLQPDQ ZLWKDODQWHUQZDUQLQJRILWVSUHVHQFHKHKDGWKHULJKWWRDSSURDFKWKHFURVVLQJDWD VSHHGRIWZHQW\ILYHWRWKLUW\PLOHVDQKRXUZKLFKVSHHGXQGHUPRGHUQFRQGLWLRQVRI WUDYHOLVYHU\PRGHUDWHDQGVXFKDVLVXVXDOO\WUDYHOHGE\RUGLQDULO\FDUHIXOSUXGHQW

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and not seeing or hearing any evidences of a moving train, and seeing no light or lights of any

train standing upon the crossing, or a trainman with a lantern warning of its presence, he had

the right to approach the crossing at a speed of twenty-five to thirty miles an hour, which

speed, under modern conditions of travel, is very moderate, and such as is usually traveled by

ordinarily careful, prudent persons under like circumstances.

The negligence of the defendants was the proximate cause of the collision and of the

injuries and death of Vilate Lytle. Taking into consideration the fact that the crossing was soinfrequently used by the railroad, and so seldom occupied by standing cars, and the further

fact that they had unnecessarily left, without lights, the black gondola car in the darkness of

the night, under the surrounding conditions of extraordinary hazard, the trainmen might

reasonably have foreseen or anticipated that a traveler in an automobile, traveling as Lytle,

Jr., was traveling, would travel along the highway without anticipating the presence of the

gondola car there, that he would be traveling at a usual or ordinary rate of speed, and that, the

gondola car being black, and the other surrounding objects dark or black in color, and the



road wet, the lights of his automobile would not reveal the presence of the gondola car and

enable him to distinguish same from the other black or dark objects in time to enable him to

avoid coming into collision with same. Therefore, under the definition of “eff icient

intervening cause,” Lytle's failure to travel at a less rate of speed and to see the black gondola

car in time to stop, being a cause intervening between the first wrongful cause of

unnecessarily leaving the car upon the crossing and the final injury to Vilate Lytle, whichmight reasonably have been foreseen and anticipated by the original wrongdoer (appellants),

is not such “efficient intervening cause” as will relieve the original wrong of its character in

law as the proximate cause of the injury.


Fay v. Minneapolis, St. P. & S. S. M. Ry. Co. (Wis.), 111 N. W. 683; Southern Ry. Co. v.

Floyd (Miss.), 55 So. 287.

OPINION


Plaintiff brought this action as administrator of the estate of his deceased wife to recover

damages for her death alleged to have been caused by the negligence of the defendants. The

court, sitting without a jury, rendered judgment in his favor for the sum of $12,500. The

defendants moved for a new trial, which was denied. This appeal is taken from the order of

the court refusing a new trial and from the judgment.

In the early morning of February 12, 1932, in Clark County, John M. Lytle, Jr., the son of

the plaintiff, accompanied by his mother, Vilate Lytle, was traveling in an automobile

northerly along Federal aid highway No. 91, a state highway commonly known as theArrowhead Trail. He was driving. They had come from Los Angeles during the night and

were on their way to Overton, the home of the parents. When they reached a point on the

highway where it crosses the St. Thomas branch railroad of the defendant railroad company,

the automobile ran into a gondola car which was standing on the branch line across the

highway and Mrs. Lytle was fatally injured. The gondola car was a part of a train which the

defendants were running westerly from St. Thomas to Moapa. Shortly before the automobile

reached the intersection the train had arrived there and the crew was engaged in switching an

empty car from a spur track just west of the crossing onto the branch line to attach it to the

train. The switching operation could not have been accomplished if the train had pulled to the

west so as to clear the crossing because the distance from there to where the spur joined thebranch line as not great enough to accommodate all the cars of the WUDLQ


train. If the train had stopped clear of the highway east of the crossing, then in order to

accomplish the transfer of the empty car to the train two additional trips over the crossing



would have been necessary, one forward by the engine and tender, and one back by the engine

tender and empty car.

It was still dark when John Lytle, Jr., and his mother met with the accident. The highway

on either side of the crossing was oiled and dark in color. The gondola car was painted black.

By reason of the fact that the approach to the crossing from the south was located in a cut

with high embankments and hills on each side extending to within a few feet of the railroad,the crossing was a hazardous one under any conditions. From a point several hundred feet to

the south of the railroad to the crossing the highway was on a descending grade. There were

no lights there and no flagman or employee of the railroad company to warn travelers on the

highway that the crossing was blocked. There were two railroad warning signs along the

highway to notify travelers of the crossing, one being an upright cross-arm sign about 20 feet

south of the crossing, and one an upright post with a round sign on top of the post with

bullseye reflectors marked “R. R.,” located about 600 feet south of the crossing. It is a matter

of common knowledge that the highway is a transcontinental highway and is used quite

extensively both day and night. The regular schedule on the branch line was one train each

way per day.

From about 1,200 feet south of the crossing to it, the highway was straight. John M. Lytle,Jr., testified in plaintiff's behalf, in substance, as follows: He was 23 years of age in February,

1932. He used a 1929 Ford roadster on the trip. He knew how to drive and had driven a car a

number of years before January 21, 1932. He drove a truck prior to that time quite a while.

His business was driving trucks. The return trip to Overton from Los Angeles was started on

the evening of February 11, 1932. On the night of February 10 he retired about 11 o'clock and

had about 8 or KRXUVRIVOHHSWKDWQLJKW


9 hours of sleep that night. He was never accustomed to getting any more sleep before he

went on other trips. The automobile was in good condition and ran fine. It was equipped with

good lights—standard equipment Ford headlights. The lights were sufficient to reveal an

object 75 feet ahead of the lamps under normal conditions. The brakes were in good

condition. They had been tried out before leaving town. He did not get off the road at any

place and did not go to sleep. He was talking to his mother about a half or three-quarters of a

mile from the crossing—told her they were almost home, or something to that effect. While

he was driving down towards the crossing he was looking straight ahead watching the road.

He had slowed down on the curve and as he approached the railroad he lessened his speed.

The night was very dark and the highway was a black oiled road. He did not look for any trainto be there because he did not see any lights to show that there was anything in the road. He

was almost on the car before he saw it—about 20 feet away, or something like that. His best

judgment was that he was traveling about 25 miles an hour at the time, and not more than 30.

He tried to stop when he saw the gondola car across the road but could not. When he regained

consciousness after the crash he was in the Las Vegas hospital. The driver of the automobile

was the only eyewitness to the accident, the mother having died shortly after the crash. None

of the train crew saw it, but the conductor of the train heard the sound of the automobile



striking the car.

John Williamson, a witness in behalf of plaintiff, testified in part as follows: He was

present soon after the accident occurred at the intersection of the Arrowhead Trail and St.

Thomas branch of the Los Angeles & Salt Lake Railroad. The black gondola car was across

the highway. There were cars between the black gondola car and the caboose, possibly two.

There is considerable elevation there, and it is a rough country. There are hills and rockswhich obstructed the view as WRRWKHUFDUVDQGFDERRVH


to other cars and caboose. It was very dark that morning. He had to have a flashlight to work

down there. The road had been oiled, and was dark in color, and the gondola car was dark in

color. The hills on each side come pretty close to the road there. There is quite a cut there for

several hundred feet approaching the railroad. The hills are not so dark in color. The road and

the car naturally look dark at night. The hills are gray and brown, and they extend pretty wellup on each side. On the one side they are about 15 feet, and possibly 10 or 12 feet on the

other. There is more of a cut as you go down towards the railroad, and that cut runs about 400

feet.

Mr. Hitchcock, a witness for plaintiff, who lived near the scene of the accident, testified as

to the environment. It was very dark that morning. He had to have a flashlight to walk down

there. The road had been oiled and was dark in color, and the gondola car was dark in color.

The hills on each side come very close. The road and car naturally looked dark at night. The

hills are gray and brown and they extend pretty well up on each side. On the one side they are

about 15 feet, and possibly 10 or 12 feet on the other. There is more of a cut as you go down

towards the railroad, and the cut there runs down about 400 feet.

Albert Laub, a witness for plaintiff, who arrived at the scene, testified in part: It had beenraining and the sky was very cloudy. When he got down there, there was a part of the train

across the track—one car, and one car on each side of it. There is a deep cut there. The car

that was across the highway was painted black. The highway was oiled, and it was really

darker than a natural oiled road on account of being wet. It absorbed the light. The crossing is

extremely dangerous.

Lamond Laub, a witness for plaintiff, testified in part as follows: He was there about 4:30.

The road was wet. It was an oiled road and dark in color. It was very dark.


There was evidence that it had not been raining and that the highway there was wet with

gasoline which had escaped from the wrecked automobile.

On this evidence and other evidence introduced by defendants, which we will mention

later, the trial court made a number of findings, which included findings that the time

consumed in switching was not more than five minutes; that during this time defendants had



left a black gondola car attached to other cars directly across the intersection of the highway

with the railroad; that the highway was oiled on both sides of the intersection and was of a

black color; that the highway west of the intersection was constructed in a cut, which left high

embankments on each side of the highway and which extended to within a few feet of the

railroad crossing; that there were two railroad crossing signs along the highway, one being an

upright crossarm sign about 20 feet south of the crossing, and the other an upright post with around sign on top of the post with bullseye reflectors marked “R. R.” located 600 feet south

of the crossing; that there were no lights at the crossing and no flagman or employee of the

railroad company to warn travelers on the highway of the existence of the gondola car at the

crossing; that said crossing was an extrahazardous one when approached on said highway

from a southerly direction, on account of the cut and the high embankments on each side

thereof, and its hazardous condition was enhanced by leaving such black gondola car across

said highway without lights; that it is a matter of common knowledge that the highway in

question is a transcontinental highway, and is used very extensively, both day and night; that

the railroad, being a branch line, was not used as extensively as the highway; that defendants

must necessarily be charged with knowledge of the existence of the highway, and that many

travelers pass over the crossing at night; that John M. Lytle, Jr., would be chargeable withknowledge that trains pass over the crossing, but not that they would be allowed to block the

crossing unnecessarily; that there was not necessity to block the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crossing with the gondola car while the switching was being done, as there was plenty of

room to leave the unused portion of the train east of, and entirely off the crossing during the

switching process, and the danger would have been lessened thereby to a great degree; that

John M. Lytle, Jr., was driving at a rate of speed of 25 to 30 miles an hour down through the

cut towards the railroad crossing; that the night was dark, the road appeared black, and the

gondola car was black; that the lights on the automobile were burning and were good lights;

that Lytle, Jr., did not see the gondola car on the crossing until he was within a few feet of the

same; that he had applied the brakes on the car, but could not stop in time to avoid running

into and under the side of the gondola car, which he did; that as a result of this collision



Vilate Lytle was injured to such an extent that she died shortly thereafter, to wit, on the 12th

day of February, 1932; that the defendants did not use the measure of care and diligence

required of a railroad company under the circumstances, while it appears from the evidence

that John M. Lytle, Jr., and his mother, Vilate Lytle, did use reasonable care under all

circumstances.

From these findings the trial court concluded that the def endants were negligent in leavingsaid black gondola car standing across said highway, and that such negligence was the

proximate cause of the accident and injury and death of Mrs. Vilate Lytle. The contentions of

the defendants are just the reverse. They contend that defendants were not negligent, but if so,

the driver of the automobile was guilty of contributory negligence, which was the proximate

cause of the injury complained of; and that such contributory negligence is imputable to the

deceased and bars recovery.

1. It may be stated as a general principle of law that a railroad company, in the absence of

a statute requiring lights or other precautions, may not be chargeable with actionable

negligence merely because its train is at rest on a crossing at a public highway, or in motion,

and is run into by an auto traveling on WKHKLJKZD\


the highway. Certainly it cannot be so chargeable if the accident happens in the daytime, nor

in the nighttime on account of darkness alone.

The case infra is one holding that a railroad company is not negligent in the absence of

such a statute if the accident happens in the nighttime and there are no other elements of

hazard than darkness. St. Louis-S. F. R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A. L.

R. 1110.

The question of the negligence of the defendants hinges on whether there were such otherelements of hazard as to charge the conductor who had charge of the train, with the

knowledge that the driver of an automobile whose machine was properly equipped with

lights, and who was exercising reasonable care, would likely not see the obstruction on the

crossing in time to avoid striking it. We think the circumstances on the night of the accident

were sufficient to charge the conductor with such knowledge. He was familiar with the

environment which prevailed at the scene of the accident. He knew that the highway was a

transcontinental highway and used extensively by travelers in automobiles day and night. He

knew, for he so testified, that the crossing was dangerous even in the daytime, that is, he said,

to automobiles from approaching trains. He knew that the highway was dark, that the car was

black; that the sky was black and the hills were brown; that there were high hills on each sideof the crossing and a deep cut through the hills on a descending grade to the crossing which

obstructed the vision as to cars or lights on the east or west until one was quite near the

crossing. He knew, or ought to have known, that placing the gondola car across the highway

under such circumstances would increase the dangerous nature of the crossing. The conductor

testified that the car was there for three minutes and that the switching and recoupling and

pulling the train over the crossing took a minute. So the crossing was blocked unnecessarily

for at least two minutes. The argument that this was safer than to leave the entire train on the



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east side, which could have been done, and consumed a minute in going forward with the

engine and tender and back with the car from the spur track, and then forward with the entire

train, does not appeal to us. The movement and noise of the train, the likelihood of the

headlight on the engine, or other lights on the moving train attracting the attention of a driver,

and the much lesser time that the crossing would be occupied by the train, or engine and

tender, are elements opposed to the idea that the blocking of the crossing for a much longer

period of time under the attendant circumstances, was safest for travelers on the highway. The

testimony of the other trainmen coincided generally with the conductor, particularly as to his

opinion that it was safer to block the highway, as was done, than to leave the train east of the

crossing. Testimony as to conflicting statements of some of the witnesses for plaintiff wasintroduced by the defendants, but the weight of this was determined against them by the trial

court.

2. We have not set out all of the evidence, either of the plaintiff or the defendants, but only

such as we think is necessary to show the reason of our ruling, that the evidence is sufficient

to sustain the findings of the court. The true rule, and which fits the circumstances of this

case, is stated in 22 R. C. L. p. 994, and is as follows: “In the absence of statute, the mere fact

that a railroad company obstructs a street or highway at a public crossing, by letting a train or

cars remain thereon for a reasonable length of time, and for proper purposes, is not

negligence, and the company is not responsible for injuries caused thereby. But a railroad

company is liable for injuries caused by reason of such obstruction, when it amounts tonegligence as where it allows its trains or cars to remain on the crossing unnecessarily, or for

an unreasonable length of time, by reason of which injuries are received by one who attempts,

with due care, to cross or go around the obstruction.”

3. As to the care of a railroad company at a crossing, it is stated in 52 C. J. 210, 211, as

follows: “The degree RIFDUHUHTXLUHGLVRQO\ZKDWXQGHUWKHFLUFXPVWDQFHVRIWKH SDUWLFXODUFDVHLVRUGLQDU\FDUHRULQRWKHUZRUGVVXFKFDUHDVDQRUGLQDU\SUXGHQW

SHUVRQZRXOGH [HUFLVHXQGHUOLNHFLUFXPVWDQFHV


of care required is only what, under the circumstances of the particular case, is ordinary care;

or in other words, such care as an ordinary prudent person would exercise under like

circumstances. It varies as peculiar and unusual conditions are presented. Where the crossing

is especially dangerous, it is incumbent on the company to use increased care commensurate

with the danger, even though the crossing is not a much traveled and used one, and the

traveler upon it knows of its extrahazardous condition.”



4. In the instant case the court found that the crossing at the time of the accident was

extrahazardous. The evidence, in our opinion, is without conflict on this point. It shows an

environment and use of the highway at that time which made the crossing unusually

dangerous. A duty was therefore cast upon the defendants to exercise care commensurate

with the condition existing. Instead of discharging this duty they increased the hazard of the

situation. They placed a black car entirely across the highway, which, according to plaintiff'stheory (and the evidence will bear such implication) so blended with the darkness, highway,

and adjacent embankments as to practically camouflage the crossing. This act was

unnecessary. In the daytime the car itself would have been sufficient warning to travelers on

the highway that the crossing was blocked, but under the existing condition the placing of it

on the crossing and leaving it without taking adequate precautions to warn approaching

motorists of the danger, amounted to negligence.

In Prescott v. Hines, 114 S. C. 262, 103 S. E. 543, the action was for personal injury from

collision of an automobile with a train standing across the street. There was evidence that the

train was blocking one of the most traveled streets in the city of Columbia, and that the cars

had no light of any kind upon them, or near them, or any guard or watchman to give warning;

that on the night in question there was a fog or smoke that made the place where the carswere standing dark and obscured the same. This evidence was held sufficient WRJRWRWKH MXU\RQWKHTXHVWLRQRIQHJOLJHQFH


to go to the jury on the question of negligence. True, there was no fog or smoke in the instant

case, but the evidence tends to show that a condition prevailed at the crossing of a more

dangerous kind. The average automobilist, when he encounters fog or smoke obscuring his

way, instinctively acts with caution. Whereas an obstruction in his road under such conditionsthat the lights of his car cannot reveal it may become a trap despite his vigilance. The extent

to which a black surface will absorb the light of an automobile is known to every motorist.

In Chicago & N. W. Ry. Co. v. Prescott (C. C. A.), 59 F. 237, 23 L. R. A. 654, the court

held: “The mere grant of a license to lay a railroad track across a public street gives no

authority to stand cars thereon, so as to obstruct the crossing, for such periods as may suit the

company's convenience; and whether it had a right to do so, in any particular instance, is

question for the jury, if the circumstances are such that reasonable persons might entertain

diff erent views as to whether the blockade was justifiable.”

5, 6. Was the driver of the auto guilty of contributory negligence? As previously stated, he

was the only eyewitness surviving the accident. The substance of his testimony has beenheretofore set out. Considering it in the light of the environment presented by the evidence,

we think that at least it discloses a case where reasonable men might honestly differ in

opinion, and was therefore a question for the trial judge to determine. Bunting v. C. P. R. R.

Co., 14 Nev. 351; Orange & N.W. R. Co. v. Harris et al. (Tex. Civ. App.) 57 S. W. (2d) 931.

The question of contributory negligence on the part of a motorist is generally for the jury. 4

Berry Automobiles (7th ed.), page 156; Elliott v. Missouri Pac. R. Co., 227 Mo. App 225, 52

S. W. (2d) 448, 451.



In the case last cited it appeared from the complaint that the street paving was a concrete

slab, and on the crossing a train of dark coal cars was permitted by the defendant to remain

standing for thirty minutes RUPRUHDFURVVWKHVWUHHWFRPSOHWHO\EORFNLQJDOOWUDIILFRQVDLG VWUHHWZKLFKZDVH[WHQVLYHO\XVHGDWDOOKRXUVRIWKHGD\RUQLJKWE\DOONLQGVRIPRWRU

DQGRWKHUYHKLFOHV


or more across the street, completely blocking all traffic on said street, which was extensively

used at all hours of the day or night, by all kinds of motor and other vehicles. It was dark, and

the weather was misty and foggy. With matters in this condition, the plaintiff's automobile

coming along the street violently crashed against the cars of said train standing on the

crossing. The court's remarks in passing on the question of contributory negligence are

pertinent to the situation in the instant case. The court said: “Nor can such contributory

negligence so appear unless we must say that, regardless of the circumstances, the mere

driving of the automobile down the street and into a silent, invisible, unexpected, and waiting

line of dark coal cars, is negligence as a matter of law. * * * But the atmospheric conditions

were not normal. And before it can be said as a legal conclusion that plaintiff was negligent in

not seeing the cars, it must be assumed that, under the conditions and circumstances of that

particular occasion, the cars could have been seen in time to have stopped. But it is well

known to every motorist, of more than mere infantile experience, that with an obstruction of

the color here shown, motionless and without noise, blending perfectly with the moist

pavement beyond and the dark sky above, and the automobile lights filtering through the

particles of mist, the coal cars would not be visible until almost upon them, and it then is

everlastingly too late. It is a well-known fact that under such conditions the paved roadway

ahead will present a uniform appearance looking entirely like the open roadway until within afew feet of an object when it will suddenly, for the first time, unexpectedly flash into view,

and not appear until then in spite of the most intense and penetrating gaze bent to the front.

The motorist knew a line of railway was there, it is true, but so far as appearances went, the

street seemed to be open and unobstructed. It is not a case of failure or neglect to see that

which was visible, but of inability to see what was in fact an obstructed, but appeared to be an

open, roadway. And WKLVVLWXDWLRQDQGDSSHDUDQFHZLOODULVHXQGHUVXFKFLUFXPVWDQFHV QRWZLWKVWDQGLQJWKHPRWRUOLJKWVPD\EHRIWKHEHVWDQGVKLQLQJEULJKWO\´


this situation and appearance will arise under such circumstances notwithstanding the motor

lights may be of the best, and shining brightly.”

And again the court said: “We do not controvert for a moment the idea that if plaintiff

drove his automobile in the dark onto the crossing knowing that he could not see what, if

anything, was there, he would be guilty of contributory negligence as a matter of law. But the

situation here is that, under the circumstances given, he drove his car into what appeared to be



the open roadway at the crossing but which was in fact wrongfully and unlawfully obstructed

by defendant without taking the least precaution to guard against injury caused by such silent,

noiseless, and undiscernible obstruction.”

So we say, if the crossing in the instant case had been shrouded in smoke or fog, and the

driver of the automobile, observing this, had undertaken to drive over the crossing, he would

have been guilty of contributory negligence. But no such case is before us.In the case just quoted from it is true the cars were permitted to remain standing on the

crossing for thirty minutes or more while in the instant case the gondola car had been

blocking the highway for a much shorter period, but the matter of time can have no bearing

on the question of contributory negligence.

Concerning authorities dealing with approaching trains or trains moving over a crossing,

we think they are not applicable to the facts of this case. As stated in Elliott v. Missouri Pac.

R. Co., supra: “If the cars had been moving as plaintiff approached, the movement itself

might have been sufficient to disclose their obstructing presence.”

There are other elements which render such cases inapposite.

We have examined the other errors assigned by defendants and find them to be without

merit.The judgment and order appealed from are affirmed.



Coleman, J., dissenting:

I dissent. There is no statute in this state relative to stopping of railroad trains at highway

crossings.The rule applicable to this case is correctly stated in 52 C. J., p. 189, to the effect that a

railroad company is liable where it allows its train to remain on the crossing unnecessarily; or

for an unreasonable length of time, by reason of which injuries are received by one who

attempts, with due care, to cross.

In determining what is an unreasonable length of time for a railroad company to permit a

train to block a crossing, the court must take into consideration the facts of the particular

case. It might be negligence for a railroad company to block a crossing on a busy

thoroughfare in a populous city at eight o'clock in the evening, for some minutes, when it

would not be negligence to block a seldom used highway on the desert of Nevada at an early

hour on a January morning. 22 R. C. L., p. 989. I think it is going too far to say, under thefacts in this case, the defendant was guilty of negligence in permitting its train to remain on

the crossing as it did.

In my opinion, the weight of the more recent authority is to the effect that one cannot

recover under facts similar to those in this case. Mabray v. Union Pac. Ry. Co. (D. C.) 5 F.

Supp. 397; Jones v. Texas & P. Ry. Co. (La. App.), 154 So. 768, 769; Plummer v. Gulf, etc.

(La. App.), 153 So. 322.

In the last-named case it is pointed out that it is not usual to station flagmen in similar



circumstances. If necessary, there would have to be two—one on each side of trains.

However, if defendant was guilty of negligence, the driver of the car in question was guilty

of such contributory negligence as precludes recovery. The section where the accident took

place was in a sparsely settled section of Nevada. The driver of the automobile lived in that

vicinity and knew the situation. He was chargeable with knowledge of the fact that a railroad

track is a place of danger. The supreme court of &DOLIRUQLDDSWO\TXRWHG³7KHUDLOURDGWUDFN RIDVWHDPUDLOZD\PXVWLWVHOIEHUHJDUGHGDVDVLJQRIGDQJHUDQGRQHLQWHQGLQJWRFURVV

PXVWDYDLOKLPVHOIRIHYHU\RSSRUWXQLW\WRORRNDQGOLVWHQIRUDSSURDFKLQJWUDLQV


California aptly quoted: “The railroad track of a steam railway must itself be regarded as a

sign of danger, and one intending to cross must avail himself of every opportunity to look and

listen for approaching trains. What he must do in such a case will depend upon

circumstances. If the view of the track is obstructed, he should take greater pains to listen. If,

taking those precautions, he would have seen or heard the approaching train, the very fact of

injury will raise a presumption that he did not take the required precautions.” Bilton v. So.

Pac. R. Co., 148 Cal. 443, 83 P. 440, 442.

The driver of the car in question knew of the darkness of the night, the cut leading to the

crossing, of the surrounding mountains, the oiled highway, and other circumstances resulting

in the accident, except the presence of the train. Knowing of these facts, he was obliged to use

greater care.


December 12, 1935. 52 P. (2d) 464.

Evidence.

Statement of driver, allegedly made shortly after crash, that he must have been

asleep when his automobile collided with car at railroad crossing, was of no evidentiary

value, where driver was practically unconscious until he arrived at hospital and driver

testified positively that he was not asleep.

Appeal from Eighth Judicial District Court, Clark County; E.P. Carville and Wm. E. Orr,

Judges.


On petition for rehearing. Petition denied. (Coleman, J., dissenting.)

Leo A. McNamee, Frank McNamee, Jr., Malcolm Davis, E. E. Bennett, and Brown &

Belford, for Appellants.



Chas. Lee Horsey, for Respondent.


OPINION


We have carefully considered the arguments and authorities presented in appellants'

petition for a rehearing, but are not persuaded that it should be granted.

It must be conceded that there are cases at variance with our opinion, but we cannot concur

in the assertion that they represent the weight of authority. In the case of St. Louis-San

Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 217, 56 A. L. R. 1110, the court

concedes a condition implying negligence, which, in our opinion, the circumstances of this

case disclose. The court said: “In other words, the employees of the defendant, in the absence

of some peculiar environment, are justified in believing that travelers in automobiles properlylighted and driving at reasonable speed will observe the cars upon the crossing in time to

avoid coming into collision with them.” (We have supplied the italics above.)

The same may be said of the case of Sisson v. Southern Ry. Co., 62 App. D. C. 356, 68 F.

(2d) 403, 406, in which the court said: “Such an obligation [obligation not to use its right of

way in such a manner as will likely cause injury to pedestrians or automobiles using that

highway with due care for their own safety] might arise out of an unusual condition brought

about by the railroad company, as, for instance, damage to the crossing by a passing train, or,

again, perhaps, if the physical conditions then existing with relation to the approach to the

crossing were such that the exercise of due care on the part of the driver of an automobile

would not of itself be sufficient to avoid the danger. In such a case the railroad company

would be put on notice of its duty to provide other safeguards.” (The italics are ours.)The “peculiar environment” mentioned in the former, and the “physical conditions” stated

in the latter, could FRPSUHKHQGWKHVXUURXQGLQJFRQGLWLRQVDWWKHFURVVLQJRQWKHPRUQLQJ RIWKHDFFLGHQW


comprehend the surrounding conditions at the crossing on the morning of the accident. In St.

Louis-San Francisco R. Co. v. Guthrie, supra, so much relied on by appellants and quoted

from extensively in the petition for rehearing, it was held that the mere leaving of cars on acrossing, without lights or other signals to disclose their presence, was a condition which, in

itself, furnished no cause of action. It is earnestly contended that such is the case here, and

that the said decision represents the great weight of authority on the question involved. Let us

see how the facts differ from the facts which we think constituted the peculiar environment in

this case, and fully justified the trial court in concluding that the leaving of the gondola car on

the crossing was an act of negligence, and the proximate cause of the death of Mrs. Lytle.

It cannot be gainsaid that black surfaces, such as oiled highways and black gondola cars,



are light absorbents. These were two of the factors in the instant case contributing to the

deceptive environment. In the Alabama case it does not appear that the highway, or cars

across it, were dark. It does not appear that the approach to the crossing was in a cut with

brown hills, or any hills, on either side of the highway, extending down a grade close to the

crossing, as in the case before us. For aught that appears, the entire train may have been in

view of an approaching motorist. So far as the opinion discloses, the highway may have beeninfrequently used, and this known to the trainmen; whereas, in the instant case, the highway

was a transcontinental one used extensively by auto travelers, both day and night, and this

known to the conductor. In the former case the crossing may not have been at all dangerous,

while the evidence in the record here shows that the crossing was a dangerous one.

In the case cited it appears that the presence of the cars on the crossing was necessary,

while the evidence in the record before us discloses that leaving the cars on the crossing was

unnecessary.


We do not regard Sisson v. Southern Ry. Co., supra, as an authority in point. The facts are

widely dissimilar to the facts under our consideration. The presence of the cars on the

crossing there for a period of three minutes was necessary.

Nothing appears in the case to indicate that the crossing was dangerous, except a curve in

the highway near it, which, of itself, was a warning to motorists to keep their cars under

proper control. As the plaintiff rounded the curve, the automobile was being driven between

30 and 35 miles an hour. Plaintiff's father, who owned the car, testified that traveling at 30 to

35 miles an hour the car could be stopped in 75 or 80 feet. This was less than the distance

from the crossing to the curve. The court said: “There was a bend in the road, which

continued to a point approximately 85 feet from the track, measured on the inside of thecurve, and considerably farther measured on the outside. This bend of the road, as plaintiff

testified, while he was driving on it, deflected the headlights of his automobile from the road

into the field beyond so that he could only see objects on the side of the road and not in front

of the car in the direction in which he was traveling. In such circumstances as these, the

railroad company had a right to anticipate that an automobilist unfamiliar with the road would

slacken his speed and keep his automobile under control while his vision was obscured. The

very condition on which plaintiff relies to justify his failure to see the obstruction in time to

stop of itself imposed on him the duty of reducing speed and proceeding with caution.

Equally the railroad company had a right to anticipate that this would be done. Obviously, if

it had been done, the accident would not have occurred.”In the above case there was nothing to indicate that a man exercising ordinary vigilance

could not have seen the car, or train, for that matter, on rounding the curve. In other words, it

does not appear that the environment, like in the instant case, was such as to apprise the

servants of the company that the obstruction was so obscured WKDWLWZRXOGOLNHO\HOXGHWKH YLVLRQRIDQDXWRPRELOLVWH[HUFLVLQJRUGLQDU\FDUH




that it would likely elude the vision of an automobilist exercising ordinary care. There is no

analogy between the cases.

We are satisfied with our opinion on the question of defendants' negligence.

Now as to the alleged contributory negligence: It is stated in the brief of defendants that

the majority of the court failed to give due consideration to some of the facts which are fully

apparent. Just what facts having any bearing on this question which were not considered by

us, the petition does not inform us, and we are aware of none. We studied the record with care

and took into account all of the evidence which, in our opinion, had any probative force.

From such consideration we reached the conclusion, which has not been changed by further

thought and study, that it cannot be said as a matter of law that the driver was guilty of

contributory negligence. We did not lose sight of the fact that it was testified to that the

driver, shortly after the crash, was heard to say that he must have been asleep. The district

court doubtless rejected that statement, and with reason. The injured man was desperately

hurt; he was practically unconscious from the time of the crash until he was removed from thescene and taken to the hospital, or at least reduced to such a state, by suffering induced by

pain and shock, that his mind was clouded. This condition was attested by witnesses.

Statements made under such circumstances are of no value as evidence. Concerning a

confession of carelessness by an injured person during the period of shock, this court said in

Jones v. West End Consol. Min. Co., 36 Nev. 149, 154, 134 P. 104, 106: “That he said

something to this effect is undisputed even by himself; he simply says that he has no

recollection of it or any distinct recollection of anything else during a certain period just after

his fall. That his remark was within the period of shock is admitted. * * * It meant nothing. It

was the irrational talk of a man in a semiconscious condition, in agony, depending for help

upon those about him.”


So here, the injured man testified: “The first thing I remember after the accident was in

one of the rooms of the hospital—they were working on me.” He testified positively that he

did not go to sleep, and there is no evidence in the record indicating that his faculties were not

alert.

Defendants concede that leaving the gondola car on the crossing formed an unusual

condition. In this regard it is said in the petition for a rehearing: “True, the road was oiled and

the railroad had placed a car entirely across the highway, which, because of the surroundings,

blended into the landscape.” We have previously pointed out the other circumstances under

which that act became an act of negligence and the proximate cause of the death of Mrs.

Lytle. On the morning of the accident, in the light of all the circumstances, it would not occur

to a reasonably prudent person, situated as the driver of the automobile was, that defendants

would be likely to place a motionless, invisible obstruction across the highway, especially

when such act was unnecessary to properly accomplish the switching of cars. To this extent at



least, there was assurance in the thought that the crossing was clear. Due to the act of

defendants it was seemingly clear, but really obstructed. This condition was not revealed to

the driver until he was within about 20 feet of the crossing, when, as the evidence discloses, it

was too late to avoid the fatal shock. It is insisted that if the driver had been proceeding with

due caution he would have seen that the highway was blocked in time to stop. Other than

what might be inferred from the fact that he was traveling at a speed of 25 to 30 miles anhour, there is no evidence tending to show that he was not observing due caution, or that he

ought to have seen the obstruction before he did. The evidence shows that he was an

experienced driver; that he was familiar with the crossing and the approach to it, having

traveled over that part of the highway a number of times. He knew that the highway was

straight from a distance RIDERXWIHHWIURPDSRLQWZKHUHKHZDVDSSURDFKLQJWKH FURVVLQJWRLW


of about 1,200 feet from a point where he was approaching the crossing, to it. He knew, both

from his own knowledge of the place and the signs at the side of the road when he was

drawing near to the railroad and slowed down to 25 or 30 miles an hour. While he was

driving down towards the crossing, he was looking straight ahead watching the road, and he

knew that the lights of his automobile were sufficient to disclose an object 75 feet ahead of

the lamps under normal conditions. But the evidence shows, as we have heretofore stated,

that conditions were not normal. There is no testimony other than the driver's in the record as

to his conduct immediately before the crash or when and after he entered the straight-of-way

towards the crossing, or as to his inability to see the obstruction sooner than he did.

Defendants assert that the witness Lamond Laub, who, with his two brothers, arrived at the

scene in an automobile from the direction in which the driver was traveling, immediatelyafter the crash, testified that he could see the gondola car from a point about 150 feet away.

We find no such unqualified testimony in the record. What he testified to was:

“Q. Well, didn't they tell you there was a train there? A. They said there was an awful

wreck.

“Q. About how far? A. About 50 yards I should say.

“Q. And you could see the train from where you were, 50 yards back? A. After my

attention was drawn to it.

“Q. And you could see it with the lights of your automobile? A. Yes.”

He had previously testified as follows:

“Q. When you got to the straight road headed towards the crossing, you saw some lightsdown there, did you not? A. Yes, sir, seen the train crew.

“Q. And one of the lights at least was flagging you down? A. Yes, sir; there was one ahead

of the other and one flagged us down.”

Under such circumstances, after his attention had been called to it, he could see the

obstruction, but that LVQRWHVWLPRQ\DWDOOWHQGLQJWRVKRZWKDWKHFRXOGKDYHVHHQLW

VRRQHUWKDQWKHGULYHUGLGKDGKHEHHQVLWXDWHGDVWKHIR UPHUZDV




is no testimony at all tending to show that he could have seen it sooner than the driver did had

he been situated as the former was. The driver would probably have seen the car sooner if

there had been a train crew with lights to warn him of its presence.On the evidence in this case bearing on the question of the driver's contributory

negligence, we do not believe that rational and impartial minds would be impelled to reach a

common conclusion of negligence. The question was, therefore, legally resolved against

defendants' contention by the lower court.

Petition for rehearing should be denied.

It is so ordered.


Coleman, J.: I dissent.

____________

ÐÐÐÐ56 Nev. 218, 218 (1935) Farmers & Merchants Bank v. Eureka Land & Stock Co.ÐÐÐÐ

FARMERS & MERCHANTS NATIONAL BANK OF EUREKA v. EUREKA LAND &

STOCK COMPANY.

No. 3098

September 4, 1935. 49 P. (2d) 354.

1. Corporations.In suit to cancel mortgages, evidence held to show that parties who executed mortgages had no

authority to do so, having previously resigned as officers and directors of plaintiff company.

2. Appeal and Error.In suit to cancel mortgages, trial court's finding that defendant bank had actual notice that plaintiff

company had elected new officers before date of execution of mortgages by old officers held conclusive,

where testimony on point conflicted, but there was substantial evidence to support finding.

3. Estoppel.Party urging estoppel must show that he has been induced by the adverse party to change his position

to his detriment.

4. Estoppel.In suit to cancel mortgages, burden was on defendant to prove that plaintiff was estopped from setting

up illegality of mortgages.




5. Mortgages.In suit to cancel mortgages, defendant bank's acceptance of new note and mortgage for amount of

three prior notes and interest due thereon held not such change of position to defendant's detriment as to

justify defense of estoppel, where there was no showing that defendant had been induced to accept new

note and mortgage, and it appeared that documents had been executed at solicitation of defendant and for

its benefit.6. Parties.

In suit to cancel mortgages, question as to whether statutory provision requiring the filing of a certain

certificate in the office of the secretary of state was repealed by later statute, was waived by defendant by

answering, since demurrer did not go to jurisdiction of court or to failure to state a defense, but to ability

of plaintiff to sue (Stats. 1903, c. 88, sec. 85, as amended by Stats. 1916, c. 16).

7. Evidence.In suit to cancel mortgages, admission of plaintiff company's minute book containing minutes of

certain day held not error on ground that meeting in question was not actually held on that day, where it

appeared that all of officers and stockholders signed agreement to hold meeting on that day and officers

signed minutes certifying to holding of meeting and the transaction of business which was to have been

transacted on that day.

Appeal from Third Judicial District Court, Eureka County; E. P. Carville, Judge Presiding.

Suit by Eureka Land & Stock Company against the Farmers & Merchants National Bank

of Eureka. From a judgment in favor of the plaintiff and an order denying a motion for a new

trial, defendant appeals. Affirmed.

Thatcher & Woodburn, for Appellants:

We contend that the testimony does not support the finding of the trial court that the bank

had knowledge of the change of officers. Tobin, cashier of the bank, followed up the rumor

and Ennor's letter of August 10, 1932, and discussed the company affairs with Leon Ardans

while driving to Elko. The rumor was not confirmed at the Elko meeting; Tobin says that

nothing was done at that meeting, or discussed, to indicate that there had been a change in

officers. In the present case, as in the case of Walker Brothers Bankers v. Janney, 52 Nev.


440, 290 P. 413, the trial court based its decision on the testimony of one witness, Ennor, the

president of the Elko bank, who was manifestly interested in the outcome of the case, as his

bank will receive over $10,000 if the mortgages are set aside. Leon Ardans, an officer of the

plaintiff corporation, was present at the meeting of August 19, 1932, yet he did not testify as

to what happened at the meeting. He did not even testify as to his conversation with Tobin

while driving to Elko, and if it were not true, surely he would have denied it. He did not

testify that he did not know of the execution of the mortgage by Sara and his son on the Bull

Creek ranch. Why? Because he did know. Milton B. Badt, who was acting as attorney for the

plaintiff corporation and for the Elko bank, for a debtor and creditor at the same time, did not

give formal notice to the Eureka bank of the purported change in the officers. He was also



present at the Elko meeting. Leon Ardans, an officer of the plaintiff corporation, asked the

Eureka bank, in November 1932, about two months after the agreement of July 19, 1932, had

expired, if it would release the mortgages on payment of one-half of the indebtedness. This

testimony is undisputed.

The bank was entitled to written notice of revocation, and did not get it. So the authority

was never revoked. 2 C. J., p. 539, sec. 165; 21 R. C. L. p. 860; Mechem on Agency (2d ed.),vol. 1, pp. 446, 448, 452, 455.

Chapter 177, Stats. 1925, did not in any way interfere with or repeal the domestic

corporation law of 1903. We contend, therefore, that the failure on the part of the plaintiff

corporation to file a list of officers within thirty days after a change therein was a bar to this

suit, and that the trial court erred in granting plaintiff's motion to strike this defense, in

sustaining a general demurrer thereto, and in denying defendant's motion for a dismissal at the

close of plaintiff's evidence, for the reason that the evidence showed that no such list had

been filed by the plaintiff corporation.

The trial court erred in admitting in evidence the minutes of the purported meetings of

stockholders of -XQH


June 7, 1932. In the first place, the minutes are not material and not binding on the defendant

bank because it was not shown that the bank had any knowledge of them; and in the second

place, they are manifestly inaccurate. Furthermore, the purported meetings were held at Elko,

according to the minutes, yet the principal office of the company is at Eureka, and there is no

evidence to show that a meeting could be held anywhere else except at Eureka.

We contend that the defendant bank changed its position in accepting the note for $6,710,

thereby extending the time for the payment of the indebtedness, to its detriment, and that theplaintiff corporation should restore the bank to its status quo, and pay off its notes as a

condition precedent to having the mortgages canceled; having received the benefit of the

money advanced, it is not in a position to question the good faith and validity of the

transaction. Nevada Con. M. & M. Co. v. Lewis, 34 Nev. 500, 126 P. 105.

Milton B. Badt, for Respondent:

It is firmly established: first, that from July 7, 1932, the date of the acceptance of the

written resignations dated July 5, 1932, and as referred to in the contract of July 19, 1932,

Isadore Sara and his son were no longer officers of the corporation, nor were they such

officers or the owners of any stock in the corporation when they attempted to execute themortgage in the corporation's name to the defendant bank on September 12, 1932, or the

mortgage to Pierre Laxague on September 10, 1932; second, that the attempted attack on the

legal effect of the corporate proceedings because the meetings lasted over a period of several

days and were written up as of a given day during those meetings, is without force. Indeed,

how much more reliable are the written dated resignations, the written dated waivers, the

written dated minutes of meetings of directors and stockholders, admittedly signed with the

signatures of every stockholder, director and officer of the corporation, than if the minutes



had been ZULWWHQXSIURPQRWHVDQGWKHUHDIWHUVLPSO\DWWHVWHGE\DVHFUHWDU\


written up from notes and thereafter simply attested by a secretary.The bank simply held the unsecured notes of the plaintiff corporation. Holding such

unsecured notes, it proceeded to take from Sara and Sara, Jr., a purported mortgage which the

Saras were not authorized to execute. It is not made to appear in any way that the defendant

changed its position for the worse, or gave any new consideration, or suffered any detriment

of any kind whatsoever as to the consideration for accepting this mortgage.

The two mortgages were taken by the bank on September 10 and September 12,1932. On

August 19, 1932, the cashier and manager of the bank was apprised of the resignation and

withdrawal of Sara and his son. Mr. Tobin denies this, but the trial court found it to be a fact.

To support the trial court's finding in this respect, we have the picture, first, of Mr. Tobin's

being advised by letter from Mr. Ennor, August 10, 1932, to look up the agreement if he wasnot already familiar with it; then Mr. Tobin's attendance at the general meeting at Elko on

August 19, 1932; the fact that Sara had his copy of the agreement at Tobin's bank from July

19, or a day or two thereafter, until November or December of 1932, where Mr. Tobin could

have seen it at any time he wanted to ask for it.

When the Saras attempted to mortgage the company's property to the bank on September

10, and September 12, 1932, they were not officers of the company. Nor did the plaintiff at

that time receive any benefit of any kind whatsoever. There is absolutely nothing to restore;

there was no benefit to the corporation that was or could be retained. When the judgment of

the trial court, setting aside the mortgages, becomes final, then the status quo will be restored

as of the date when the unauthorized mortgages were executed.

If the trial court erred in sustaining plaintiff's demurrer to defendant's defense that plaintiff had not filed a new list of officers within thirty days after a change, defendant may not raise

the point on this appeal, but VKRXO GKDYHVWRRGXSRQLWVSOHDGLQJDQGSHUPLWWHGMXGJPHQW

WREHHQWHUHGXSRQLW


should have stood upon its pleading and permitted judgment to be entered upon it. Lonkey v.

Wells, 16 Nev. 271; Hardin v. Elkus, 24 Nev. 329, 53 P. 854.

OPINION


This is a suit instituted by Eureka Land & Stock Company against Farmers & Merchants

National Bank of Eureka, to set aside two real estate mortgages. Judgment was rendered in

favor of the plaintiff, from which and an order denying a motion for a new trial, the defendant

appealed. We will refer to the parties as plaintiff and defendant.



In the early part of 1932 plaintiff was the owner of large land and livestock holdings in

Eureka County, of the value of over $250,000. It owed about $125,000, of which the sum

$69,500 was secured by a chattel mortgage on the livestock. It is conceded that, covering a

period of years, down to July 7, 1932, I. Sara was the president, and I. Sara, Jr., was the

secretary and treasurer of plaintiff company, and it is contended by defendant that they

continued to be such officers until after the execution of the mortgages in question. Theplaintiff executed and delivered to the defendant its three promissory notes, of the dates and

amounts following: April 6, 1932, $2,500; April 20, 1932, $2,500; June 3, 1932,

$1,500—which money was used for the benefit of plaintiff. On September 13, 1932, a note

was given by plaintiff to defendant aggregating the amount of said three notes, in the sum of

$6,710, being principal and interest, to secure which one of the mortgages sought to be

canceled was given. The other mortgage in question is dated September 10, 1932, payable to

Pierre Laxague, for $3,500, and assigned, together with the mortgage securing it, to the

defendant.

The plaintiff having reached the point where dissensions arose and where it seemed

impossible to raise IXQGVWRFDUU\RQLWVEXVLQHVVDOORIWKHVWRFNKROGHUVVLJQHGDZULWWHQ

FRQVHQWRIGDWH-XO\IRUWKHKROGLQJRIDVSHFLDOPHHWLQJRIVWRFNKROGHUVWREH KHOGRQWKHGDWHPHQWLRQHGIRUWKHSXUSRVHRIHOHFWLQJGLUHFWRUVDQGWKHW UDQVDFWLRQRI

RWKHUEXVLQHVV


funds to carry on its business, all of the stockholders signed a written consent, of date July 7,

1932, for the holding of a special meeting of stockholders to be held on the date mentioned

for the purpose of electing directors and the transaction of other business.

The minute book of the company, signed by I. Sara, president, and I. Sara, Jr., secretary,shows that pursuant to said unanimous consent a special meeting of plaintiff company was

held on July 7, 1932, at which Leon Ardans, Peter Ardans, and Fermin Espinal were elected

directors of plaintiff. It further appears from the minutes of said meeting that the officers were

directed to make an effort to borrow money and to refinance the company. It further appears

that on July 7, 1932, I. Sara, I. Sara, Jr., and Leon Ardans tendered their resignations as

officers and directors of the company, which were accepted, and that Leon Ardans was

elected president, Peter Ardans was elected vice president, and Fermin Espinal was elected

secretary-treasurer. It also appears from the minutes of the plaintiff that on the 19th day of

July, 1932, a contract was entered into between plaintiff, as party of the first part, Leon

Ardans, Peter Ardans, Fermin Espinal, and Pierre Laxague, the said Leon Ardans and Fermin

Espinal, both individually and as officers of the company, second parties, and Isadore Sara

and Isadore Sara, Jr., as third parties, wherein it was agreed, among other things, that the third

parties were to surrender all their stock in first party and all claims against it, in consideration

of the conveyance to them by first party of certain real and personal property.

It is further provided in said contract: “That in the event of any of the contingencies as

herein set forth cannot be accomplished, to the end that these presents and this contract

cannot be fully consummated, carried out and fulfilled, then and in that event any and all



obligations and liabilities created hereunder shall absolutely be void and of no effect, and all

parties shall be released from the operation of any covenants or clauses KHUHRIDQGWKHVDLG FRUSRUDWHSURFHHGLQJVZKHWKHUFDUULHGRXWRUQRWVKDOOEHRIQRHIIHFWDQGWKHVDLG SDUWLHVVKDOOEHDEVROXWHO\UHVWRUHGWRWKHLUUHVSHFWLYHVWRFNKROGHUVDQGRIILFHKROGLQJVWR VXFKH[WHQWDVLIWKHVHSUHVHQWVRUWKHVDLGPLQXWHVRIGLUHFWRUVDQGVWRFNKROGHUVRUWKH

VDLGUHVLJQDWLRQVKDGQRWEHHQH[HFXWHG´


hereof and the said corporate proceedings, whether carried out or not, shall be of no effect,

and the said parties shall be absolutely restored to their respective stockholders and office

holdings to such extent as if these presents, or the said minutes of directors and stockholders,

or the said resignations had not been executed.”

It is further provided in said contract that should the plaintiff fail to negotiate the loan

contemplated, in its effort to refinance itself within the period of sixty days from its date, that

said agreement shall be of no further force or effect, and that the parties “in such event shallbe restored to their former estates as hereinbefore referred to.”

1. The first question to be disposed of is the contention of defendant that I. Sara and I.

Sara, Jr., were president and secretary, respectively, of the plaintiff at the time they executed

the mortgages, and even if not, the defendant, having been furnished some years before with a

copy of a resolution adopted by plaintiff authorizing I. Sara, as president, and I. Sara, Jr., as

secretary, to borrow money in its behalf and to execute mortgages to secure the same, in

which resolution it is provided that such power and authority shall continue until written

notice of revocation has been delivered to the defendant, and no such written notice having

been given it, the plaintiff cannot prevail.

2. There is no merit in the contentions, for the reason that Sara and Sara, Jr., were notofficers of plaintiff and had no authority to execute the mortgage at the date of its execution.

By their own written signatures they had tendered their resignations on July 7, 1935, which

had been accepted and their successors elected and were in the exercise of the duties of their

offices at the time the mortgages were given. This is not disputed, except insofar as the date

of the stockholders' and directors' meeting at which the action mention was taken, for if the

wrong date is given, it is clear that the meetings were held long before the execution of the

mortgages. As to the contention that no ZULWWHQQRWLFHZDVJLYHQGHIHQGDQWDQGWKDWLWKDG QRDFWXDOQRWLFHRIWKHHOHFWLRQRIWKHQHZRIILFHUVZHPD\VD\WKDWWKHUHLVQRFRQWHQWLRQ WKDWLWKDGZULWWHQQRWLFHEXWWKHUHLVSRVLWLYHHYLGHQFHWRWKHHIIHFWWKDWLWKDGDFWXDO

QRWLFH


written notice was given defendant and that it had no actual notice of the election of the new

officers, we may say that there is no contention that it had written notice, but there is positive

evidence to the effect that it had actual notice. It is true that there is a sharp conflict in the



testimony on this point, and if we were deciding the question in the first instance, we would

be inclined to hold contrary to the finding of the trial court, but it was the duty of the trial

court to determine this question, and, under the law, there being substantial evidence to

support the finding, we are bound by it, in the circumstances. Consolazio v. Summerfield, 54

Nev. 176, 10 P. (2d) 629. In this connection it is said that since the agreement of July 19,

1932, provides that in case of failure of the plaintiff to refinance itself within sixty days theSaras should be restored to their former position, that such refinancing was not successful

until long after that date. The exact language of the agreement, as quoted above, is that in

case of the failure to refinance within sixty days that the Saras “shall be restored to their

former estate,” whatever that may mean. Whatever else may be said on this point, the Saras

were not officers on September 12, 1932, and could have become such by their reelection

only. They have never been reelected, nor is it so contended.

3, 4. The next contention of defendant is that plaintiff is estopped from asserting the

illegality of the mortgages in question. In State ex rel. Thatcher v. Justice Court, 46 Nev. 133,

207 P. 1105, and other cases, we recognized the rule to be that before one can successfully

urge estoppel he must show that he has been induced by the adverse party to change his

position to his detriment. In determining whether or not defendant established estoppel, wemust bear in mind that the burden of proving estoppel is upon the defendant. Schlitz Brew.

Co. v. Grimmon, 28 Nev. 235, 81 P. 43.

The trial court having found as a fact that the defendant had actual notice of the change of

officers of SODLQWLIIFRPSDQ\ZKLFKLVFRQFOXVLYHXSRQXVIURPZKLFKLWIROORZVWKDW6DUD DQGVRQKDGQRDXWKRULW\WRH[HFXWHWKHPRUWJDJHVZKDWKDVWKHSODLQWLIIGRQHVLQFHWKH

HOHFWLRQRIWKHQHZRIILFHUVRIWKHSODLQWLIIWRMXVWLI\WKHSOHDRIHVWRSSHO"


plaintiff company, which is conclusive upon us, from which it follows that Sara and son had

no authority to execute the mortgages, what has the plaintiff done, since the election of the

new officers of the plaintiff, to justify the plea of estoppel?

5. As we understand the contention of defendant, it is that the acceptance of the new note

of September 12, 1932, for $6,710 constitutes such change of position, to defendant's

detriment, justifying the defense of estoppel. There is not a scintilla of evidence in the record

indicating that the defendant was threatening suit or other action, or that Sara and son, acting

in behalf of defendant, sought or suggested the giving of the new note and mortgage; but the

inference from the entire record is that those documents were executed at the solicitation of

defendant, and for the purpose of gaining a vantage ground it did not theretofore occupy. Inthis situation we do not see how it can consistently be said that defendant changed its position

to its injury. From the entire record the only deduction to be made from the situation is that

had the defendant brought suit against the plaintiff, bankruptcy proceedings would have

followed, which, we infer from the testimony of the cashier of the defendant, would have

been disastrous.

What we have said applies to both mortgages, and disposes of defendant's different

theories as to estoppel.



6. It is next contended that the trial court erred in sustaining plaintiff's demurrer to

paragraph 2 of defendant's third defense, which alleges a failure to file in the office of the

secretary of state a certain certificate required, as contended, by section 85 of the corporation

act of 1903 (Stats. 1903, c. 88), as amended in 1919 (Stats. 1919, p. 25, c. 16). Plaintiff

contends that the act of 1925 (Stats. 1925, c. 177) repeals the 1903 act. It was evidently on

this theory that the lower court sustained the demurrer. We are inclined to the view thatsection 1 of the 1925 act pertains to corporations organized after its approval, except certain

corporations specifically excepted, to which class plaintiff GRHVQRWEHORQJKRZHYHUZHGR QRWGHFLGHWKHTXHVWLRQGHIHQGDQWKDYLQJZDLYHGLWE\DQVZHULQJVLQFHWKHGHPXUUHUGLG QRWJRWRWKHMXULVGLFWLRQRIWKHFRXUWRUWRWKHIDLOXUHWRVWDWHDGHIHQVHEXWWRWKHDELOLW\

RIWKHSODLQWLIIWRVXH


does not belong; however, we do not decide the question, defendant having waived it by

answering, since the demurrer did not go to the jurisdiction of the court or to the failure tostate a defense, but to the ability of the plaintiff to sue. Hardin v. Elkus, 24 Nev. 329, 53 P.

854.

7. Counsel for the defendant contend that the court erred in admitting in evidence the

minute book of plaintiff containing the minutes of June 7, 1932, on the ground that the

meeting was not actually held on that day. It does not positively appear that a meeting was

held on that particular day, but it does appear that all of the officers and stockholders signed

an agreement for the holding of a meeting on that day to do the very thing which appears

from the minutes to have been done, and the existing officers signed the minutes, certifying to

the holding of the meeting and the transaction of the business which was contemplated should

transacted on that day. No error was committed by the ruling.We have not discussed in detail the numerous assignments of error relied upon, but have

disposed of the salient points involved in the appeal and which must control.

Judgment affirmed.

____________

ÐÐÐÐ56 Nev. 229, 229 (1935) Burdick v. SchmittÐÐÐÐ

BURDICK v. SCHMITT

No. 3089

September 5, 1935. 48 P. (2d) 762.

1. Banks and Banking.Relation of principal and agent ceases when bank collection is made, and that of debtor and creditor



arises; bank becoming simple contract debtor for amount of collection, less commissions and expenses.

2. Banks and Banking.One who selects bank as his collecting agent is bound by reasonable custom or usage of bank, in

absence of special directions or agreement, whether or not he knows of such custom or usage.

3. Banks and Banking.In absence of special instructions or agreement, proceeds of collection made by bank are property of

bank and part of its general fund, and it is custom of bank to credit owner with amount of net proceeds

after collection is made, and on insolvency of bank there is no preference in favor of owner of paper.

4. Banks and Banking.Plaintiff, who instructed bank with which she deposited paper for collection to notify her when

collection was made, was general creditor and had no preferred claim against bank which subsequently

closed, where bank credited joint account of plaintiff and husband with net proceeds of collection and

promptly mailed notice of collection, notwithstanding that notice stated that her account rather than joint

account had been credited.

5. Banks and Banking.Instruction that bank should notify depositor of paper for collection when collection was made held

not equivalent to instruction not to deposit proceeds of collection to depositor's credit.


Action by Marie W. Burdick against Leo F. Schmitt, as receiver of Tonopah Banking

Corporation, substituted for E. J. Seaborn, Superintendent of Banks. From a judgment and

order denying motion for new trial, the plaintiff appeals. Judgment and order affirmed.

H. R. Cooke, for Appellant:

Appellant's instruction to the bank to notify her when collection was made is the

equivalent of a direction not WRGHSRVLWLWLQWKHEDQNWRKHUFUHGLW


to deposit it in the bank to her credit. Guignon v. First National Bank (Mont.), 55 P. 1051; In

re Johnson (Mich.), 61 N. W. 352; Griffin v. Chase (Neb.), 54 N. W. 572.

Appellant's instructions to the bank “to collect” and “notify me,” is the precise equivalent

of an instruction “for collection and return.” In such case the collecting bank does not become

a debtor merely, but holds the proceeds as agent. People v. Iuka State Bank, 229 Ill. App. 4;

Plano Mfg. Co. v. Auld (S. D.), 86 N. W. 21, 867 Am. St. Rep. 769; Peoples State Bank v.

Burlington State Bank (Kans.), 277 P. 39; 8 Thompson on Corporations (3d ed.), 346, sec.

6213; Arnot v. Bingham, 9 N. Y. S. 68; Nurse v. Satterlee (Ia.), 46 N. W. 1102; Magee,Banks and Banking (3d ed.), p. 491; Thompson v. Gloucester, etc. Co. (N. J.), 8 Atl. 97; State

Nat'l. Bank v. First Nat'l. Bank (Ark.), 187 P. 673; Charles Hing v. Joe Lee (Cal.), 174 P.

356; Friede v. Nat'l. City Bank (N. Y.), 165 N. E. 452, 227 N. Y. S. 378; 5 Michie, Banks and

Banking, p. 48, sec. 37; McLeod v. Evans (Wis.), 57 Am. Rep. 287; 7 C. J. 634, sec. 313.

Assuming that the advice of credit, correct in form (which it was not), sent to appellant on

October 22, 1932, but received and retained by her husband until the afternoon of October 29,

1932, had in fact been promptly received by appellant, it would still constitute no waiver or



abandonment of her rights to claim the money as a preferred claim. Hall v. Beymer (Colo.),

125 P. 561.

Where owner of item left with a bank for collection has no deposit account with it, the

bank cannot place proceeds of collection in an account for him, and thereby transform itself

from an agent to a debtor, without the owner's knowledge and consent. 5 Thompson on

Corporations, 7097; 6 Michie, Banks and Banking, p. 61, sec. 43; Blair v. Hill, 63 N.Y.S.670; Dickerson v. Mason (N.Y.), 7 Am. Rep. 455; Kent v. Bolclow State Bank (Mo.), 70 S.

W. (2d) 129; 7 C. J. 40, and n. 81.

No custom was shown of the banking corporation, LQPDNLQJFROOHFWLRQRILQGLYLGXDO PRQH\VRIDSDUW\WRWKHQGHSRVLWWKHVDPHWRWKHFUHGLWRIDMRLQWDFFRXQWEHORQJLQJWRD

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in making collection of individual moneys of a party, to then deposit the same to the credit of

a joint account belonging to a third person and the owner of the collection proceeds. The

cashier of the bank, on cross-examination, stated that under his custom he would not so

handle individual funds of a party who had a joint account, when the parties to the joint

account were not married to each other, and, finally, that he could not recall a single

occurrence or instance of a case similar to the instant transaction ever taking place in his

bank. See 17 C. J. 521, sec. 88. Williams v. Ninemire (Wash.), 63 P. 534.

A particular custom, in order to be binding on a customer sending to a bank a draft for

collection, must have been actually known to him when he sent it. 6 Michie on Banks and

Banking, pp. 29, 32; Federal Reserve Bank v. Malloy, 264 U. S. 160, 68 L. Ed. 617, 31 A. L.

R. 1261.

Platt & Sinai, for Respondent:In the absence of any specific instructions as to what the bank should do with the proceeds

of the collection, it was the duty of the bank to follow usual banking customs. 6 Michie on

Banks and Banking, sec. 23, p. 29; Davis v. First National Bank of Fresno (Cal.), 50 P. 666;

Hallam v. Tallinghast, 52 P. 329; 7 C. J., p. 621, sec. 273.

Mr. Henderson, the cashier of the bank, testified, in effect, that it was the custom of the

bank upon making a collection of the character involved, in the absence of any specific

instructions as to what disposition should be made of the proceeds of the collection, to credit

the joint account of the patron with the proceeds. There is no evidence at all in the case to

establish that this custom was unreasonable or unusual, or that it violated any principle of

good banking practice.A bank undertaking a collection acts as an agent for the patron until the money is

collected, and a trust relationship exists; but after collection is made, the relation is converted

into that of debtor and creditor, LQWKHDEVHQFHRIDQDJUHHPHQWWRWKHFRQWUDU\0LFKLHRQ

%DQNVDQG%DQNL QJSS




in the absence of an agreement to the contrary, 6 Michie on Banks and Banking, pp. 8, 49; 7

C. J., p. 616, sec. 282; Hallam v. Tallinghast, supra; State v. McKinley County Bank, 252 P.

980; Montana-Dakota Power Co. v. Johnson, 23 P. (2d) 956; Union National Bank v.

Citizens' Bank, 153 Ind. 44, 54 N. E. 97.

It is difficult, in the light of the evidence, to understand how it may be properly asserted

that Mrs. Burdick was a stranger to the bank. It is conceded that she and her husband had a

joint account in the bank, to which both had equal banking privileges as though each had an

individual account.

OPINION


This is an appeal from a judgment of the Second judicial district court, Washoe County,

and from an order of said court denying a motion for new trial. Appellant was plaintiff in the

action in the court below and the original defendant was E. J. Seaborn, superintendent of

banks. Leo F. Schmitt, as receiver of Tonopah Banking Corporation, was later substituted asdefendant. In this opinion appellant will be designated plaintiff, and said banking corporation

as the bank.

In October, 1932, appellant handed the bank, for collection, an investment certificate

issued by the Investors' Syndicate of Minneapolis, Minn., for the principal sum of $2,500,

which matured October 10, 1932. The certificate was in the name of plaintiff, who testified

that it was her separate property. The bank sent the certificate to the Reno National bank, its

Reno correspondent, with instructions to make collection. Collection was duly made by the

correspondent bank, whereupon it notified the collecting bank that the collection had been

made and the collecting bank credited with the amount of the collection. Within

approximately a half hour after receipt of said notification, on 2FWREHUWKHEDQN KDGFUHGLWHGWKHDPRXQWFROOHFWHGOHVVFROOHFWRUVFRPPLVVLRQH[SHQVHVHWFWRWKHMRLQW DFFRXQWRISODLQWLIIDQGKHUKXVEDQGDQGSODFHGLQWKHEDQNVPDLOLQJER[DGXSOLFDWH FUHGLWDGYLFHDGGUHVVHGWRSODLQ WLIILQFDUHRI:LWWHQEHUJ:DUHKRXVH&RPSDQ\7RQRSDK 1HYDGDWKHFLW\RIKHUUHVLGHQFHDQGWKHSODFHZKHUHWKHEDQNLQJKRXVHRIWKHFROOHFWLQJ

EDQNZDVORFDWHG


October 22, 1932, the bank had credited the amount collected, less collector's commission,

expenses, etc. to the joint account of plaintiff and her husband, and placed in the bank'smailing box a duplicate credit advice addressed to plaintiff, in care of Wittenberg Warehouse

Company, Tonopah, Nevada, the city of her residence, and the place where the banking house

of the collecting bank was located. The Wittenberg Warehouse Company had a post-office

box in the Tonopah post office, and plaintiff and her husband received their mail in that box.

Plaintiff testified that her husband received the mail most of the time and that she received it

sometimes. Said duplicate credit advice was in the words and figures following:



“The Tonopah Banking Corporation

“Tonopah, Nev., 10/22 1932

“Mrs. M. W. Burdick

“We credit your account as follows:

Your letter, date or number AmountColl#3516

Investors Syndicate 2500—

Exchange chgd by Minneapolis Bank 2 50

_______

2497 50

Ins Reg & Postage 1 17

_______

“The Tonopah Banking Corporation

“Tonopah, Nevada

“By C H, Cashier“Items not on this Bank credited subject to payment

“Respectfully,

“The Tonopah Banking Corporation.”

On October 24 or 25, 1932, while plaintiff's husband Dr. Ralph H. Burdick, was in the

bank, there was a conversation between him and Mr. Carroll Henderson, at that time cashier

of the bank. Mr. Henderson's testimony is to the effect that in that conversation he told Dr.

Burdick that said collection had been made and the advice mailed. Dr. Burdick testified that

all he could remember of the conversation was that Mr. Henderson DVNHGKLPZKHWKHUKH KDGUHFHLYHGQRWLFHRIWKHFROOHFWLRQDQGKHUHSOLHGWKDWKHKDG'U%XUGLFNIXUWKHU

WHVWLILHGWKDWDWWKHWLPHRIWKLVFRQYHUVDWLRQKHKDGMXVWFRPHIURPWKH SRVWRIILFHDQG KDGWKHQRWLFHLQKLVSRFNHWEXWWKDWKHKDGQRWDV\HWRSHQHGWKHHQYHORSHDQGVRKDG

QRWVHHQWKHQRWLFH


asked him whether he had received notice of the collection, and he replied that he had. Dr.

Burdick further testified that at the time of this conversation he had just come from the post

office and had the notice in his pocket, but that he had not as yet opened the envelope, and so

had not seen the notice. He further testifies that he did not speak to plaintiff either about the

notice itself or the conversation with Mr. Henderson until the afternoon of Saturday, October

29, 1932, at which time he told her that he had the notice of the collection in his pocket, “or

what he supposed to be the notice.” Plaintiff testified that it was at this last-mentioned time

that the notice was handed her by her husband. Plaintiff testified that Dr. Burdick was injured

on the day that he received the credit advice, and was confined to his room most of the time

thereafter. This, she testified, accounted for his “not having a very good memory or thinking

of business matters.” It appears that plaintiff herself was not in the bank at any time between



October 22 and November 1.

The bank, because of insolvency, closed its doors on Tuesday, November 1, 1932.

When plaintiff placed the investment certificate in the hands of the bank for collection, she

asked the cashier to let her know when the collection was made. Mr. Henderson testified that

at the time the collection was being placed with the bank, plaintiff mentioned that on payment

of the collection she expected to apply some part of the proceeds on a note of her brother'sheld by the bank. This is positively denied by plaintiff. Plaintiff admits that she did not give

any instructions as to what disposition was to be made by the bank of the proceeds of the

collection. She testified that it was her intention to put such proceeds in postal savings. She

does not claim, however, that anything was said to the bank about such intention, and the

bank does not claim that plaintiff gave it any instructions to use any of the proceeds of the

collection to apply on the note of plaintiff's brother.

It appears that it had been some twelve years since SODLQWLIIKDGFORVHGDQROGDFFRXQWLQ WKHEDQNLQKHUQDPHRQO\EXWIRUDSHULRGRIDSSUR[LPDWHO\WZHOYH\HDUVQH[WSUHFHGLQJ WKHILUVWRI1RYHPEHUSODLQWLIIDQGKHUKXVEDQGKDGPDLQWDLQHGDMRLQWGHSRVLWDQG FKHFNLQJDFFRXQWVRDUUDQJHGWKDWDVEHWZHHQWKHPDQGWKHEDQNHLWKHURUERWKRIWKHP

FRXOGDWDQ\WLPHFKHFNRQDQ\SDUWRUDOORIWKHIXQGVLQVDLGMRLQWDFFRXQWDQGWKDWXSRQ WKHGHDWKRIHLWKHUDQ\VXPUHPDLQLQJLQWKHDFFRXQWZ RXOGEHWKHVROHSURSHUW\RIWKH

VXUYLYRU


plaintiff had closed an old account in the bank in her name only, but for a period of

approximately twelve years next preceding the first of November, 1932, plaintiff and her

husband had maintained a joint deposit and checking account so arranged that, as between

them and the bank, either or both of them could at any time check on any part or all of the

funds in said joint account, and that upon the death of either, any sum remaining in theaccount would be the sole property of the survivor. The wording of the written agreement

between plaintiff, her husband, and the bank was as follows: “Any and all moneys in this

account and any and all which may hereafter be deposited therein, is subject to withdrawal in

part or in whole by either of us; and in case of the death of either of us, such account shall

pass to and be withdrawn by the survivor. R. H. Burdick Marie W. Burdick.” This joint

account, on the bank's books, was as follows: “Burdick, R. H. or Marie W.” the account

usually did not show a large balance. On cross-examination of Mr. Henderson, it appeared

that on September 2, 1932, the credit balance was $0.93, on October 3, 1932, $32.49, and on

October 22, 1932 after the proceeds of said collection had been credited, $2,528.82. Plaintiff's

exhibit 4, being bank statement of said account covering the period from June 17, 1932, toDecember 31, 1932, shows that the credit balance on the first of said dates was $61.80; that

after June 17, 1932, and up to and including September 27, 1932, nine deposits were made,

ranging in amounts from $4.05 to $300, and being, with the exception of the proceeds of said

collection, the only deposits made between June 17, 1932 and December 31, 1932. During the

same period, twenty checks were drawn on said account, ranging in amounts from $0.06 to

$270.30. The credit balance on December 31, 1932, as shown by said bank statement, and

including the net proceeds of said collection, was $2,497.39. Plaintiff and Dr. Burdick, from



time to time, each made deposits in and checked on said joint account. Plaintiff testified that

most of the everyday business transactions of herself and husband were conducted on DFDVK EDVLVLQFOXGLQJPRVWRIWKHLUSXUFKDVHVRIIRRGFORWKLQJDQGRWKHUKRXVHKROG

QHFHVVLWLHV


a cash basis, including most of their purchases of food, clothing, and other household

necessities. She testified that the joint account in the bank was a small one carried by herself

and husband as a matter of convenience.

At and for some years previous to the time said collection was placed with the bank,

plaintiff and her husband had another joint bank account in a San Francisco bank. The

testimony shows that there was less than $1,000 in this account.

The passbooks of the Tonopah bank contained a printed notice including the following

sentences: “In receiving items for deposit or collection, this bank acts only as depositors'

collecting agent and assumes no responsibility beyond the exercise of due care. All items are

credited subject to final payment in cash or solvent credits.” Neither plaintiff nor her husband

had a passbook, their deposits being “made out on deposit slips.”

On October 20, 1932, the bank, by letter, requested the Reno National bank to charge the

former's account and forward it $7,000 in currency. A request for a further $7,000 was

telegraphed October 28, 1932. Both of these requests were promptly complied with by the

Reno National bank. Mr. Henderson testified that neither of said requests was made for the

purpose of securing money with which to pay plaintiff the proceeds of said collection. Said

requests, according to Mr. Henderson, had no connection with the collection, and were made

only for the reason that the bank needed funds in the transacting of its general business.

After the bank had closed its doors on November 1, plaintiff told Mr. Henderson that shethought she was entitled to a preference to the extent of the net proceeds of said collection.

Mr. Henderson told her that, in his opinion, she was simply a general creditor and not entitled

to any preferences over other general creditors. Subsequently plaintiff filed a claim for

preference, which was rejected, and later she commenced this action.

The gist of appellant's contention on this appeal is WKDWWKHEDQNKDGQRDXWKRU LW\DIWHU EHLQJDGYLVHGE\WKHFRUUHVSRQGHQWEDQNWKDWWKHFROOHFWLRQKDGEHHQPDGHWRFUHGLWWKH

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that the bank had no authority, after being advised by the correspondent bank that the

collection had been made, to credit the joint account of her husband and herself with the net

proceeds of the collection. She contends that the bank, by crediting the joint account, as

aforesaid, did not change its status from that of agent to that of debtor. Her position is that she

was a stranger, because she had no account in the bank in her name only, and had not

authorized the bank to open such an account for her. Appellant further argues that Mr.



Henderson's testimony to the effect that the bank had followed its regular custom and usage

in handling collections is not true in one important particular, namely, that the bank

admittedly had never before, so far as shown by the evidence, handled any other collection

under circumstances exactly similar to those in this case, for which reason, as she claims, no

custom or usage could exist. Appellant further points out that the advice of credit mailed her

by the bank was in error, because it was to the effect that the net proceeds of the collectionhad been credited to her account; whereas, in fact, they had been credited to the joint account.

Respondent contends that when the joint account was credited with the net proceeds of the

collection, the bank became the debtor of plaintiff. He further contends that the bank

complied with plaintiff's instruction to notify her when the collection was made. Respondent

also takes the position that the bank handled the collection according to its established custom

and usage, as well as in conformity with the rules of law.

1. It is a general rule of law that after a bank collection has been made, the relation of

principal and agent ceases, and that of debtor and creditor arises; the bank becoming a simple

contract debtor for the amount of the collection, less commissions and expenses.

Montana-Dakota Power Co. v. Johnson, 95 Mont. 16, 23 P. (2d) 956; Paulk v. Union

Banking Co., 46 Ga. App. 815, 169 S. E. 313; Shull v. Beasley, 149 Okla. 106, 299 P. 149,77 A. L. R. 465; Citizens' Bank v. Bradley, 136 S. C. 511, 134 S. E. 510; Annotation, 24 A.

L. R.


1152, 1155; Morse on Banks and Banking (6th ed.), sec. 248; Tiffany on Banks and Banking,

205, 206; 6 Michie on Banks and Banking, 8, 49; Selover on Bank Collections, sec. 121.

2. The general rule is also well established that one who selects a bank as his collecting

agent is bound by any reasonable custom or usage of the bank, in the absence of specialdirections or agreement, whether he knows of such custom or usage or not. Montana-Dakota

Power Co. v. Johnson, supra; Paulk v. Union Banking Co., supra; Luckehe v. First National

Bank, 193 Cal. 184, 223 P. 547; Young v. Teutonia Bank & Trust Co., 134 La. 879, 64 So.

806, at page 809; Hilsinger v. Trickett, 86 Ohio St. 286, 99 N. E. 305, Ann. Cas. 1913d, 421;

Jefferson County Sav. Bank v. Commercial Nat. Bank, 98 Tenn. 337, 39 S. W. 338; Selover

on Bank Collections, sec. 10; 6 Michie on Banks and Banking, secs. 220, 221; 4 Cal. Jur.

263, 264; Tiffany on Banks and Banking, 208; 3 R. C. L. 634; 7 C. J. 587, 605, 612, 613.

3. In the absence of special instructions or agreement, the proceeds of a collection made by

a bank become the property of the bank and a part of its general fund; and on the insolvency

of the bank there is no preference in favor of the owner of the paper. In such cases it is thecustom of banks, after the collection has been made, to credit the owner with the amount of

the net proceeds. 4 Cal. Jur. 258; 7 C. J. 616.

4. In her testimony plaintiff expressly admitted that she did not give the bank any

instructions as to what was to be done with the proceeds of the collection. The bank was,

therefore, justified in mingling said proceeds with its general funds. We are of the opinion

that the bank complied with plaintiff's instruction to notify her when the collection was made.

The credit advice was promptly addressed and mailed to her, and she was in no wise injured



by reason of the fact that it notified her that the net proceeds of the collection had been

credited to her account, when in fact they had been credited to the joint account. The net

proceeds of the FROOHFWLRQZHUHSODFHGDWKHUGLVSRVDOE\FUHGLWLQJWKHMRLQWDFFRXQWMXVWDV HIIHFWLYHO\DVLIVKHKDGKDGDQDFFRXQWLQKHUQDPHRQO\DQGVDLGSURFHHGVKDGEHHQ

FUHGLWHGWRWKDWDFFRXQW


collection were placed at her disposal by crediting the joint account just as effectively as if

she had had an account in her name only and said proceeds had been credited to that account.

As between the bank on the one hand, and plaintiff and her husband on the other, either she

or Dr. Burdick could have checked out any or all of said proceeds. All that plaintiff instructed

the bank to do was to notify her when the collection was made. This the bank did promptly,

and in the manner conforming to banking usages and practice. There can be no question that,

had there been an account in the bank in the name of plaintiff only, the bank would have been

justified in crediting the amount of the said proceeds to such account. There being no such

account, the bank did that which, in our opinion, was the natural and proper thing to do. It

could, of course, have telephoned plaintiff, asking her what she wished done with said

proceeds, or it could have delivered the currency to her by a messenger; but neither of these

courses is required in banking practice. Again, it could have mailed plaintiff a draft or

cashier's check, but in that event she would have been in no better position than that in which

she was placed when the bank credited the joint account, because, had such draft or cashier's

check been mailed her, the relationship between the bank and her would have been only that

of debtor and creditor.

All that was required of the bank, upon receipt of the advice from the correspondent bank

that the collection had been made and the Tonopah bank credited with the amount of the netproceeds, was to act in good faith and use sound discretion. The course actually pursued by

the bank was not calculated to, and did not in fact, mislead or injure plaintiff in any particular.

The bank had never handled a collection exactly like the one which is the subject of this

action. Not only that, but learned counsel have not, nor has the court after diligent research,

found a case where the facts were the same as those in the case at bar.


In Morse on Banks and Banking (6th ed.), at sections 226 and 256, the author says: “If anypoint of law concerning any act in the business of collection is in doubt by reason of having

never been adjudicated upon, if the bank using its best discretion should pursue the course

which the courts subsequently declare to be improper and illegal, it will nevertheless be

absolved from all liability for the results of its mistake. * * * Generally a mistake of law is no

excuse, but when a question has not yet been decided, and there is no uniform practice to

guide the bank, it is not responsible for mistaking what will be the future decision of the law;

it is only the law that is established that is presumed to be known.”



We do not say that situations might not arise in which legal injury might be done to a

married woman by depositing the proceeds of a collection made for her by a bank in a joint

account of her husband and herself; but, under the facts of this case, we hold that the acts of

the bank were lawful and proper.

Appellant contends that she should be considered a stranger, because she had no account

in her name only. It is our opinion, however, she was not a stranger, but a regular depositor.5. Nor can we agree with appellant's view that her instruction to the bank, to notify her

when the collection was made, was equivalent to an instruction not to deposit the proceeds of

the collection to her credit. The case of Guignon v. First National Bank, 22 Mont. 140. 55 P.

1051, 1052, 1097, cited by appellant, differs from the case at bar. In that case the court

expressly points out that “the record does not show that the defendant bank ever gave notice

to the plaintiff, or credited him with the amount of the collection.” The collection was made

by the correspondent bank and credited. The collecting bank received notice twelve days

later, and charged correspondent bank. Two days afterwards the collecting bank closed its

doors. In the meantime, as above stated, the collecting bank had neither given plaintiff notice,

nor credited him with WKHDPRXQWRIWKHFROOHFWLRQ


the amount of the collection. The Guignon case does appear to support one contention made

by appellant. In that case plaintiff deposited a draft with a bank, with instructions to collect it

and notify him. In its opinion the court said: “The draft was deposited with directions to

collect and notify plaintiff, and not for credit.” If it was intended by the court to say that an

instruction by plaintiff to a collecting bank to make a collection and notify plaintiff includes

within its meaning an instruction to the bank not to credit the amount of the proceeds of the

collection, we cannot give our assent to such a view. We can see no justification forattributing to such an instruction any meaning beyond the plain import of the words

themselves. The bank in the case at bar promptly notified plaintiff that the collection had been

made, and followed up the notification later by personally ascertaining from Dr. Burdick that

the credit advice had been received. If, as testified by plaintiff and Dr. Burdick, she did not

receive the notice until Saturday afternoon, that fact was in no way attributable to any fault or

negligence on the part of the bank.

We find no error in the record, and the evidence, in our opinion, justified the trial court in

reaching the conclusion that plaintiff was not entitled to a preference over other general

creditors.


____________

ÐÐÐÐ56 Nev. 242, 242 (1935) Cann v. Williams Land & Livestock Co.ÐÐÐÐ

CANN v. GEORGE B. WILLIAMS LAND &

LIVESTOCK COMPANY



No. 3065

September 5, 1935. 48 P. (2d) 887.

1. Action.Where a statute providing a remedy does not create a new right, but merely provides a new remedy

for a pre-existing right, such remedy is ordinarily regarded as not exclusive, but merely cumulative,

especially where new remedy is not an adequate one.

2. Action.Provision of codes of civil procedure and practice acts, while doing away with merely formal

technical distinctions between different common-law actions, do not abolish common-law causes of

action, or distinctions between them, or affect rules of law as to what facts constitute particular cause of

action, so that any right may be asserted or wrong redressed under new procedure that could have been

asserted or redressed under old, but the change does not create any new rights or causes of action.

3. Action.If a statute gives a remedy in the affirmative without containing any express or implied negative, for a

matter which was actionable at common law, such fact does not as a rule take away common-law remedy;but party may sue at common law as well as upon statute, as statute remedy is regarded as merely

cumulative.

4. Action.Constitutional provision that there shall be but one form of civil action, and provision of civil practice

act that all forms of pleadings in civil actions, and rules by which sufficiency of pleadings shall be

determined, shall be those prescribed in act, refer only to forms of actions and sufficiency of pleadings,

and do not relate to matters of substance, nor effect any change in substantive rights of parties, or in their

remedial rights (Comp. Laws 1929, sec. 8592; Const. art. 6, sec. 14).

5. Corporations.Remedy afforded by statute providing that judgment creditor might institute action against person or

corporation claiming property or an interest in property adverse to judgment debtor for recovery of such

interest or debt held not exclusive and not to preclude judgment creditor bringing action in trover againstcorporation claiming stock alleged to be stock of judgment debtor to recover damages for alleged

conversion of such stock (Comp. Laws 1929, sec. 8869).

6. Evidence.Plaintiff calling president and secretary of defendant corporation for purpose of examination held not

bound by their WHVWLPRQ\EHFDXVHRIKLVIDLOXUHWRDQQRXQFHEHIRUHFRPPHQFLQJRI

H[DPLQDWLRQRIVXFKZLWQHVVHVWKDWWKH\ZHUHEHLQJFDOOHGDVDGYHUVHZLWQHVVHV XQGHUVWDWXWHSHUPLWWLQJVXFKSURFHGXUH&RPS


testimony because of his failure to announce before commencing of examination of such witnesses that

they were being called as adverse witnesses under statute permitting such procedure (Comp. Laws 1929,

sec. 9420).

7. Trial.

On motion for nonsuit, sufficiency of evidence to make out prima-facie case is question of law.

8. Trial.

Motion for nonsuit presents for consideration of court questions of what facts alleged in complaint are



material to plaintiff's case as he presents it in complaint and whether plaintiff has made out prima-facie

case by producing substantial evidence in support of cause as he presented it.

9. Trial.

On motion for nonsuit, weight of evidence is not proper matter for consideration of court.

10. Trial.On motion for nonsuit, evidence is considered most favorably for plaintiff, and motion is not to be

granted where there is any substantial evidence which, with aid of all legitimate inferences favorable to

plaintiff, would support verdict or finding that material allegations of complaint are true.

11. Trial.Where at conclusion of plaintiff's evidence court reserved its ruling on defendant's motion for nonsuit

made at that time and requested defendant to go on with case, which it did, renewing its motion for

nonsuit after having called witnesses and court then granted such motion, order granting motion related

back to time when it was first made.

12. Corporations.Evidence tending to show that corporation had issued stock certificate to judgment debtor, that

thereafter judgment creditor had purchased interest of judgment debtor in such stock on execution sale,

that purported cancelation of certificate and transfer of stock to corporation were not authorized nor

ratified by corporation and were without consideration, and that corporation refused to transfer such stock

to judgment creditor and to issue new certificate to him, held to make out prima-facie case on motion for

nonsuit that judgment creditor was owner of stock, and that corporation had wrongfully converted it

(Stats. 1903, c. 88; Comp. Laws 1929, secs. 1722, 1748).

13. Corporations.In determining damages to be assessed against corporation for conversion of its stock, where stock

had no market value, its actual value might be shown.

14. Corporations.In determining damages to be assessed against corporation for conversion of its stock, where stock

had no market value, amount of corporation's liabilities and other matters peculiarlyZLWKLQ

FRUSRUDWLRQVNQRZOHGJHPLJKWSURSHUO\EHRIIHUHGLQFRUSRUDWLRQVEHKDOIWRSURYH DFWXD OYDOXHRIVWRFN


within corporation's knowledge might properly be offered in corporation's behalf to prove actual value of

stock.

15. Appeal and Error.Supreme court could grant new trial, notwithstanding judgment appealed from was a judgment of

nonsuit.

Appeal from First Judicial District Court, Churchill County; Edgar Eather, Judge

Presiding.

Action by Eli Cann against the George B. Williams Land & Livestock Company. From a

judgment of nonsuit, and from an order denying a new trial, plaintiff appeals. Judgment and

order reversed, and cause remanded for a new trial.

A. L. Haight and Brown & Belford, for Appellant:



By the execution sale and the sheriff's certificates of sale issued to the plaintiff, plaintiff

became the owner of the 1,362 shares of stock described in the complaint, and was entitled to

have a new certificate of stock issued to him and in his name. See 8853 N. C. L.; West Coast

Safety-Faucet Co. v. Wulff et al. (Cal.), 65 P. 622.

Plaintiff by his purchase became a shareholder in the corporation, entitled to have a

certificate of ownership of his stock issued to him. Secs. 1722 and 1748 N. C. L.The refusal to issue the stock to the plaintiff was a conversion thereof. Cooley on Torts (3d

ed.), vol. 2, p. 859; Robinson Mining Co. v. Riepe, 37 Nev. 27, 138 P. 910, 40 Nev. 121, 161

P. 304; 54 A. L. R. 1157.

Plaintiff's remedy for such conversion was an action in trover for the value of the stock. It

was the remedy to which plaintiff was entitled. Robinson Mining Co. v. Riepe, supra; State v.

Guerrero, 12 Nev. 105; Durham v. The Monumental Silver Mining Co., 9 Ore. 41.

The fact is apparently overlooked by counsel for respondent that this appeal is from the

trial court's ruling in granting the defendant's motion for a nonsuit, and that the principle to be

applied in reviewing such a decision was clearly stated by this court in Patchen v. Keeley, 19

Nev. 404, 14 P. 347, and thereafter strictly adhered to, as follows: “In considering the FRXUWV

UXOLQJLQJUDQWLQJWKHQRQVXLWZHPXVWWDNHDVSURYHQHYHU\IDFWZKLFKWKHSODLQWLIIV HYLGHQFHWHQGHGWRSURYHDQGZKLFKZDVHVVHQWLDOWRKLVUHFRYHU\DQGJLYHKLPWKH

EHQHILWRIDOOOHJDOSUHVXPSWLRQVDULVLQJIURPWKHHYLGHQFH´


court's ruling in granting the nonsuit, we must take as proven every fact which the plaintiff's

evidence tended to prove and which was essential to his recovery, and give him the benefit of

all legal presumptions arising from the evidence.” See, also, Hanly v. California Bridge Co.

(Cal.), 59 P. 577, quoted with approval by this court in Fox v. Myers, 29 Nev. 169, 86 P. 793.In reference to counsels' suggestion that the plaintiff is bound by the testimony of the

adverse witnesses called in his behalf, we submit, in the first place, that it is not necessary to

make any particular announcement in order to examine an adverse witness as if under

cross-examination and to avoid being bound by his testimony; and, in the second place, the

record explicitly shows that the witness, George B. Williams, was to be treated as an adverse

witness, and that both Mr. and Mrs. Williams were officers of the defendant corporation and

hence adverse witnesses under the statue. (Sec. 9420 N. C. L.)

The rule is that if shares of corporate stock have no ascertainable market value, then the

actual or intrinsic value may be taken as the basis for awarding damages in the event the

corporation shall refuse to issue a certificate to a stockholder. Tevis v. Ryan (Ariz.), 108 P.

461; Peek v. Steinberg (Cal.), 124 P. 834.

Appellant has appealed not only from the order denying his motion for a new trial (in

which the ruling of the court is assigned as an error of law), but also from the judgment,

either of which is apparently permissible under our practice. Tonopah & G. R. Co. v.

Fellanbaum, 32 Nev. 278, 107 P. 882.

We submit that the evidence of Mr. Williams' ownership of 1,350 shares of stock in

question was conclusively established at the trial, not only for the purpose of preventing a



nonsuit, but so as to entitle the plaintiff to judgment on the merits. There is nothing to

substantiate any different conclusion, beyond an endorsement made upon the certificate by

some unidentified person at some unidentified time. It is shown, however, WKDWWKH HQGRUVHPHQWZDVPDGHZLWKRXWDQ\DXWKRULW\IURPWKHGLUHFWRUVDQGWKDWWKHGLUHFWRUV QHYHUUDWLILHGLWQRUUDWLILHGWKHWUDQVDFWLRQFODLPHGWREHFRQQHFWHGZLWKLWXQOHVVDWDQ LPDJLQDU\PHHWLQJRIZKLFKQRPLQXWHVZHUHNHSW


that the endorsement was made without any authority from the directors, and that the

directors never ratified it, nor ratified the transaction claimed to be connected with it, unless

at an imaginary meeting of which no minutes were kept.

Platt & Sinai, f or Respondent:There was nothing in plaintiff's case to support any possible judgment in conformity with

the prayer of his complaint. There was no proof that the 1,350 shares belonged to plaintiff or

that George B. Williams or M. Genevieve Williams had any right, title or interest in the same.

It will be noted that the witnesses for plaintiff were George B. Williams and M. Genevieve

Williams, who were not put under the cross-examination rule, and it is our position that a

party is bound by the testimony of his adversary when called as a witness by him, unless said

party specifically claims the benefit of sec. 9420 N. C. L. First National Bank of Petersburg,

Ill. v. Shipley, 292 P. 996; Walter v. Detroit, J. & C. Railway Co., 157 N. W. 414.

The sheriff did not sell the stock to the plaintiff; he merely sold whatever right, title and

interest George B. Williams and M. Genevieve Williams had in and to the stock. Williams

was not the owner of the 1,350 shares of stock, nor was M. Genevieve Williams, and,

therefore, the plaintiff purchased nothing more than the twelve shares which actually

belonged to them.

Plaintiff knew the ownership of the property was in dispute, since he obtained the order of

court for leave to institute an action to settle the disputed ownership under sec. 8869 N. C. L.

He was given every opportunity to pursue the recognized course which he had thus initiated,

and proceed to try out before the court the ownership of the stock, rather than institute an

action of this type.

In the absence of any testimony relative to the value of the stock in the instant case, there

is a complete failure of proof of one of the essential elements prerequisite to sustaining an

action for conversion, since there ZDVQRWKLQJEHIRUHWKHWULDOFRXUWWRVHUYHDVD\ DUGVWLFN E\ZKLFKWKHGDPDJHVDOOHJHGWRKDYHEHHQVXIIHUHGE\DSSHOODQWFRXOGEHPHDVXUHG


was nothing before the trial court to serve as a yardstick by which the damages alleged to



have been suffered by appellant could be measured. We do not dispute that the intrinsic value

may be shown, but to make such a showing testimony would have to be introduced which

would establish in detail the condition of the corporation, its assets as compared with its

liabilities, its earnings and expenses, its indebtedness and costs of operations, all as of the

date of the alleged conversion. No testimony of such nature appears in the record.

Whatever may be the rights of a stockholder who has acquired stock in the open market orby purchase from a corporation, when a person has purchased a judgment debtor's interest in

stock certificates at an execution sale, the exclusive and only remedy available to such a

purchaser, where the title is in dispute, is the statutory remedy provided by sec. 8869 N. C. L.

Hagerman v. Lee, 12 Nev. 331. If any force or effect whatsoever is to be given to sec. 8869

N. C. L., it can only be done by construing the same to provide a remedy exclusive of all

others which must be pursued by a purchaser of property at execution sale under

circumstances similar to those presented by the case at bar.

Even though, for the purpose of argument, we assume conversion to be the proper remedy,

none of the essential elements constituting an action for conversion have been established by

the evidence in the instant case.

It must be remembered that appellant had concluded his case, and in so doing hadpresented to the trial court all of the evidence available in support of his contentions.

Thereafter the motion for nonsuit as presented by defendant was granted. Under these

circumstances, the only relief to which appellant would be entitled under any theory would be

to have a new trial. The law is well settled that a motion for new trial may not be granted

under these circumstances. Tucker v. Hypotheek Mining and Milling Co., 173 P. 749.

In the final analysis, therefore, the sole question for determination upon this appeal is the

question of the FRUUHFWQHVVRIWKHUXOLQJRIWKHWULDOFRXUWLQJUDQWLQJUHVSRQGHQWVPRWLRQ IRUQRQVXLW


correctness of the ruling of the trial court in granting respondent's motion for nonsuit.

OPINION


This is an appeal from a judgment of nonsuit, and from an order denying a new trial, in an

action in the First judicial district court, in and for Churchill County, wherein appellant, Eli

Cann, was plaintiff, and respondent, George B. Williams Land & Livestock Company,

defendant.

On January 12, 1932, in the district court of the Eighth (now the First) judicial district, in

and for the county of Churchill, Eli Cann recovered a judgment against George B. Williams

and M. Genevieve Williams for the sum of $12,498.26, with interest and costs. In the spring

of the same year execution was issued, in pursuance of which the sheriff levied upon and

sold, along with other property, “all the right title and interest” of said George B. Williams in



and to five shares of the capital stock of respondent company, “all the right title and interest”

of said M. Genevieve Williams in and to seven shares of the capital stock of said corporation

and “all the right title and interest” of said George B. Williams in and to 1,350 shares of the

capital stock of said corporation. Appellant, Eli Cann, was the purchaser at the execution

sales of said capital stock—1,355 shares of which, it is claimed by him, were standing on the

books of said company in the name of said George B. Williams, the remaining seven sharesstanding in the name of said M. Genevieve Williams. Said George B. Williams was president

of the corporation and said M. Genevieve Williams its secretary. Certificates of sale of said

capital stock were given by the sheriff to appellant, who claims that on May 31, 1932, he

demanded of said corporation that a new certificate or certificates for said 1,362 shares be

issued to him, and transferred to him on the books of the corporation.


This demand, according to appellant, was met by a refusal. Thereafter appellant brought thisaction in said district court against respondent corporation for the conversion of said 1,362

shares of its capital stock. The case was tried in November, 1933. At the conclusion of

appellant's case in chief, respondent moved for a nonsuit. The court, after hearing argument

on the motion, reserved its decision thereon, and requested counsel for respondent to go on

with the case. After calling two witnesses for the respondent and recalling appellant,

respondent rested and renewed its motion for a nonsuit. On January 7, 1933, the district court

filed its written decision granting the motion for a nonsuit. Notice of intention to move for a

new trial was served January 14, 1933, and filed January 16, 1933. On January 19, 1933, the

court filed its judgment, dismissing appellant's action. On July 5, 1933, the court filed its

written decision denying appellant's motion for a new trial. The case comes before this court

on appeal from said judgment, and from the order denying the motion for new trial.There were two execution sales in the case of Eli Cann against George B. Williams and M.

Genevieve Williams. At the first of these sales on April 19, 1932, the sheriff sold to

appellant, along with other property, five shares of the capital stock of said corporation

standing in the name of George B. Williams, and seven shares of the capital stock of said

corporation standing in the name of M. Genevieve Williams. At the second sale on May 18,

1932, the sheriff sold to appellant, along with other property, “all the right title and interest”

of George B. Williams and M. Genevieve Williams in and to 1,350 shares of the capital stock

of said corporation, represented by certificate No. 6, and claimed by appellant to have

belonged, before said last-mentioned sale, to George B. Williams. Between the dates of said

two execution sales, appellant instituted proceedings supplementary to execution under theprovisions of chapter 43 of the civil practice act (N. C. L. sec. 8863 et seq.). In the course of

said proceedings George B. Williams and 0




M. Genevieve Williams, judgment debtors as aforesaid, appeared and answered upon oath

concerning their property. On June 6, 1932, the district judge signed an order, under the

provisions of section 8869 N. C. L., authorizing appellant to institute one or more actions

against George B. Williams Land & Livestock Company and three other persons for the

recovery of said 1,350 shares of capital stock, alleged by appellant to have been standing on

the books of said corporation in the name of George B. Williams, and other shares of thecapital stock of said corporation, alleged to have been standing on the books in the names of

and claimed by, respectively, said other three persons. Two days afterwards, to wit, on June 8,

1932, appellant commenced this action in trover against said corporation in said district court,

demanding a money judgment for the conversion of said five shares, seven shares, and 1,350

shares, respectively, hereinbefore mentioned.

Before the execution sales, counsel for respondent notified the sheriff by letter that neither

George B. Williams nor M. Genevieve Williams owned any interest in said 1,350 shares,

which, he stated were the property of respondent.

In the course of the supplementary proceedings hereinbefore mentioned, it developed that

on certificate No. 6 the following appeared: “Cancelled 11/8/27 in pay't of $135,000.00 debt.

See certificate No. 16.”Appellant claims that, before the execution sales, seven shares of the 1,362 alleged in this

action to have been converted by said corporation belonged to M. Genevieve Williams, and

that the remaining 1,355 shares belonged to George B. Williams. After said execution sales,

and until the alleged conversion, appellant claims that he was the owner of all said 1,362

shares. After respondent's alleged refusal to issue new certificates of stock to appellant and

transfer same on the books of the corporation, appellant commenced this action in trover

praying for a money judgment against said corporation for the value of said 1,362 shares of

capital stock at the time of its alleged conversion.


Respondent takes the position that it is and at all times, since the first execution sale, has

been ready and willing to issue a new certificate or certificates of stock to appellant in lieu of

the said five and seven shares, respectively, standing on the books of the corporation in the

names of George B. Williams and M. Genevieve Williams. The remaining 1,350 shares,

however, respondent claims as its own property (treasury stock), and claims that said 1,350

shares have been its sole and exclusive property ever since the 11th day of November, 1927.

Respondent contends that if appellant desired to contest its claim of ownership of the stock

which is the subject of this action, his exclusive remedy was that provided in section 8869 N.C. L., namely, an action “for the recovery of such interest.” Appellant takes the position that

the remedy provided in said section is not exclusive, and that the law entitles him to bring this

action in trover to recover damages for the alleged conversion of said capital stock. On this

particular question of law it is our opinion that appellant's contention is correct, and that it is

supported by the weight of authority. Hulley v. Chedic, 22 Nev. 127, 36 P. 783, 786, 58 Am.

St. Rep. 729; Bond v. Bulgheroni, 215 Cal. 7, 8 P. (2d) 130; Blake v. Blake, 86 Cal. App.

377, 260 P. 937; Phillips v. Price, 153 Cal. 146, 94 P. 617; Rapp v. Whittier, 113 Cal. 429, 45



P. 703; Gordon v. Lemp, 7 Idaho, 677, 65 P. 444; Enright v. Grant, 5 Utah, 334, 15 P. 268;

Ryan v. Maxey, 14 Mont. 81, 35 P. 515; Feldenheimer v. Tressel, 6 Dak. 265, 43 N. W. 94;

F. Meyer Boot & Shoe Co. v. C. Shenkberg Co., 11 S. D. 620, 80 N. W. 126; Monroe v.

Reid, 46 Neb. 316, 64 N. W. 983; Poole v. French, 71 Kans. 391, 80 P. 997; Ludes v. Hood,

29 Kans. 49; Culp v. Hecht, 43 Ohio App. 430, 183 N. E. 437; In re Albright, 55 Misc. 324,

105 N. Y. S. 486; Hart v. Albright, 28 Abb. N. C. 74, 18 N. Y. S. 718; Gere v. Dibble, 17How. Prac. (N. Y.) 31; Davis v. Turner, 4 How. Prac. (N. Y.) 190; 7 Cal. Jur. 801; 6

Bancroft's Code Prac. and Remedies, 6012, 6013; 8 R. C. L. 4, 5; 10 R. C. L. 1374; Glenn,

Creditors' 5LJKWVDQG5HPHGLHVS


Rights and Remedies, p. 15, note; 6 Stand. Encyc. of Pr. cc. 185, 186; 5 Encyc. Pl. and Pr.

433; 21 Encyc. Pl. and Pr. 91, 92; note 100 Am. Dec. 502; note 90 Am. Dec. 294.

1-3. Where a statute providing a remedy does not create a new right, but merely provides anew remedy for a pre-existing right, it is ordinarily held that such remedy is not exclusive, but

merely cumulative. The rule that a new remedy for a pre-existing right will not be regarded as

exclusive is particularly applicable where such new remedy is not an adequate one. The

provisions of the codes of civil procedure and practice acts, while doing away with the merely

formal technical distinctions between the different common-law actions, do not abolish

common-law causes of action, or the distinctions between them, or affect the rules of law as

to what facts constitute a particular cause of action. Any right may be asserted or any wrong

redressed under the new procedure that could have been asserted or redressed under the old,

while on the other hand the change does not create any new rights or causes of action, or

authorize a recovery where none could previously have been had in any form of action. If a

statute gives a remedy in the affirmative, without containing any express or implied negative,for a matter which was actionable at common law, this does not as a rule take away the

common-law remedy, but the party may still sue at common law as well as upon the statute.

In such cases the statute remedy is regarded as merely cumulative. 1 R. C. L. 323, 324; 1 C. J.

988, 989, 990, 991, 1003, 1004; Pomeroy's Code Remedies (5th ed.), secs. 8, 9, 13; Hulley v.

Chedic, supra.

4. Article 6, sec. 14, of the constitution of Nevada, providing that “There shall be but one

form of civil action, and law and equity may be administered in the same action,” and section

94 of the civil practice act (section 8592 N. C. L.), providing that “All the forms of pleadings

in civil actions, and the rules by which the sufficiency of the pleadings shall be determined,

shall be those prescribed in this act,” refer only to forms of DFWLRQVDQGVXIILFLHQF\RI SOHDGLQJV


actions and sufficiency of pleadings. Such provisions relate merely to distinctions in matters



of form, and not to matters of substance. They do not effect any change in the substantive

rights of the parties, or in their remedial rights.

5. Section 8869 says that the court or judge “may” authorize the judgment creditor to

institute an action. It does not provide either expressly or by necessary implication, that the

judgment creditor must apply for such an order, that the court or judge must authorize the

judgment creditor to institute an action, or that if so authorized, the judgment creditor mustinstitute such action.

If we should hold that section 8869 N. C. L. provides an exclusive remedy, then it would

be necessary to interpret the words “recovery of such interest” as including within their

meaning the recovery of the value of such interest. In this connection see Travis Glass Co. v.

Ibbetson, 186 Cal. 724, 200 P. 595; also the following sentence in Hulley v. Chedic, supra:

“In authorizing an action, the statute, of course, means the kind of action calculated to give

the proper remedy.”

We have not overlooked Hagerman v. Tong Lee, 12 Nev. 331, or Pershing v. Reno, etc.

Co., 30 Nev. 342, 96 P. 1054, but what was actually decided in those cases was that in

supplementary proceedings a court cannot require a third party, not a party to the action, to

deliver up property to be applied towards the satisfaction of plaintiff's judgment, unless the judgment debtor's ownership is indisputable.

Section 8869 N. C. L. as well as the other sections of chapter 43 of the civil practice act,

are designed to assist judgment creditors, not to deprive them of any substantial rights. Justice

requires that one whose property is wrongfully converted by another shall have the right to

maintain an action either for the recovery of such property or for the recovery of its value. If

in the instant case appellant was, on May 31, 1932, the owner of the capital stock in question,

and respondent RQVDLGGD\ZURQJIXOO\FRQYHUWHGVDLGVWRFNWKHUHLVQRVRXQGUHDVRQIRU VD\LQJWKDWDSSHOODQWZDVQRWHQWLWOHGWRVXHIRUWKHUHFRYHU\RIWKHYDOXHRIVDLGVWRFNRU

IRUWKHUHFRYHU\RIWKHVWRFNLWVHOIDWKLVRSWLRQ


on said day wrongfully converted said stock, there is no sound reason for saying that

appellant was not entitled to sue for the recovery of the value of said stock, or for the

recovery of the stock itself, at his option. Robinson Mining Company v. Riepe, 37 Nev. 27,

138 P. 910; State v. Guerrero, 12 Nev. 105; United States Cities Corporation v. Sautbine, 126

Okla. 172, 259 P. 253, 54 A. L. R. 1152, and note; Drug, Inc. v. Hunt (Del. Sup.), 168 A. 87;

Fletcher Cyclopedia Corporations (Permanent Edition), secs. 5113, 5114, 5115, 5165; Cook

on Corporations (Eighth Edition), sec. 392; Bowers, The Law of Conversion, pp. 118, 119,120, 122; Thompson on Corporations (3d ed.), secs. 4432-4434. In Bowers' The Law of

Conversion, at p. 122, the author says, “the injured owner has an election of remedies—he

may follow and reclaim the stock, or he may recover damages for its conversion.”

We have now to consider whether appellant's evidence in the district court was sufficient

to make out a prima-facie case. We shall first dispose of some preliminary matters before

taking up this question.

6. Two of the witnesses called by appellant at the trial were George B. Williams and M.



Genevieve Williams. Before placing them on the stand, appellant did not announce that they

were being called as adverse witnesses under the statute (section 9420 N. C. L.). This statute

reads as follows: “A party to the record of any civil action or proceeding or a person for

whose immediate benefit such action or proceeding is prosecuted or defended, or the

directors, officers, superintendent or managing agent of any corporation which is a party to

the record, may be examined by the adverse party as if under cross-examination, subject tothe rules applicable to the examination of other witnesses. The party calling such adverse

witness shall not be bound by his testimony, and the testimony given by such witness may be

rebutted by the party calling him for such examination by other evidence. Such witness, when

so called, may be examined by his own counsel, but only as to the matters testified to on such

examination.”


Respondent contends that by reason of appellant's failure, before commencing theexamination of said witnesses, to announce that they were being called as adverse witnesses

under said statute, he was bound by their testimony. In our opinion this position is not

tenable. By the express terms of the statute, said witnesses, the president and secretary,

respectively, of defendant corporation, were adverse witnesses. Furthermore, the statute does

not require that the party calling such witnesses announce that they are being called as

adverse witnesses. We think the correct rule is that laid down in Worthington v. People's

State Bank of Chula Vista, 106 Cal. App. 238, 288 P. 1086, 1087, cited in appellant's brief. In

that case the court says: “Did plaintiff, by f ailing to announce that the witness was called

under section 2055, waive the benefits conferred by that section? That the deposition of an

adverse party may be read in evidence and the party using same not be bound by such

testimony, even though he fails to announce that it is being offered under section 2055, hasbeen held in Weir v. New York Life Insurance Company, 91 Cal. App. 222, at pages 230,

231, 266 P. 996. We can perceive no reason why the same rule should not apply where the

witness is actually present in court. It may be added in passing that nowhere in that section is

there any requirement that the person calling such adverse witness must announce that he is

called under the provisions of that section.” In view of the wording of the statute, and on the

authority of the Worthington case, we hold that appellant was not bound by the testimony of

the witnesses George B. Williams and M. Genevieve Williams.

7. On motion for nonsuit, whether the evidence is legally sufficient to make out a

prima-facie case is a question of law. Tonopah & Goldfield R. Co. v. Fellanbaum, 32 Nev.

278, at page 301, 107 P. 882, L. R. A. 1918d, 584; 64 C. J. 397, 399, 400.8. A motion for nonsuit presents two questions for the consideration of the court: (1) What

facts alleged in the complaint are material to plaintiff's case as he SUHVHQWVLWLQWKH FRPSODLQW"




presents it in the complaint? (2) Has plaintiff made out a prima-facie case by producing

substantial evidence in support of his cause as he presented it? Elie v. C. Cowles & Co., 82

Conn. 236, 73 A. 258.

9. On a motion for nonsuit the court cannot say on which side the evidence preponderates;

the weight of the evidence is not a relevant consideration. 64 C. J. 399, 400.

10. The evidence, on a motion for nonsuit, is considered most favorably for plaintiff, and

interpreted most strongly against defendant. Crossman v. So. Pac. Co., 44 Nev. 286, at pages

296, 297, 194 P. 839; Su Lee v. Peck, 40 Nev. 20, at page 28, 160 P. 18; Weck v. Reno

Traction Co., 38 Nev. 285, at page 293, 149 P. 65; McCafferty v. Flinn, 32 Nev. 269, at page

273, 107 P. 225; Burch v. So. Pack Co., 32 Nev. 75, at page 134, 104 So. 225, Ann. Cas.

1912b, 1166; Fox v. Myers, 29 Nev. 169, at pages 182, 183, 86 P. 793; Patchen v. Keeley, 19

Nev. 404, 409, 14 P. 347; 64 C. J. 402-405, and sec. 396.

In Souza v. Underwriters' Fire Patrol of San Francisco, 116 Cal. App. 13, 2 P. (2d) 200,

201, the court said: “It is elementary that a motion for nonsuit is not to be granted where there

is any substantial evidence which, with the aid of all legitimate inferences favorable to the

plaintiff, would support a verdict or finding that the material allegations of the complaint aretrue.”

11. We have already pointed out that at the conclusion of appellant's (plaintiff's) evidence,

the court below reserved its ruling on the motion for nonsuit made at that time by respondent

(defendant), and requested respondent to go on with the case. This respondent did, calling

three witnesses and then renewing its motion for nonsuit, which was granted. In a somewhat

similar case the court, in Pierce v. Atlantic, Gulf & Pacif ic Co., 159 App. Div. 258, 144

N.Y.S. 330, held that the subsequent order granting the motion related back to the time it was

first made. And see 64 C. J. 419.


12. With the foregoing rules in mind, we now consider whether plaintiff presented any

evidence to substantiate the material and essential allegations of his complaint, and

particularly the allegations that on May 31, 1932, he was the owner of the shares in question,

and that defendant's refusal to transfer said shares to him on the books of the corporation or

issue to him a new certificate or certificates for said stock was legally wrongful. Our

observations will be confined chiefly to the 1,350 shares hereinbefore mentioned, respondent

not questioning appellant's ownership of the five and seven shares which stand in the names

of George B. Williams and M. Genevieve Williams, respectively.At the second execution sale appellant purchased “all the right, title and interest” which

George B. Williams and M. Genevieve Williams, or either of them, had in and to said stock

on the day the execution was levied. See section 8853 N. C. L. If they or either of them had

no interest in the stock at that time, appellant's purchase brought him nothing so far as that

particular stock was concerned. If on the other hand they, or either of them, owned the stock

exclusively at that time, appellant became the exclusive owner when he purchased at said

sale.



Respondent is a Nevada corporation, organized under the general corporation law of 1903

(Stats. 1903, c. 88). Appellant's evidence tends to show that when the company was

organized, 2,153 shares of its capital stock (certificate No. 2) were issued to George B.

Williams; that said shares were afterwards divided up into four certificates, as follows: No. 5,

M. Genevieve Williams, 32 shares; No. 6, George B. Williams, 1,621 shares; No. 7, George

B. Williams, 250 shares; No. 8, George B. Williams, 250 shares. The company later took overthe stock represented by certificate No. 6, and transferred 271 of the 1,621 shares to George

B. Williams—leaving the 1,350 shares which are in dispute in this case.

As heretofore stated, said certificate No. 6, for 1,621 shares (including the 1,350 disputed

shares), was marked “Cancelled 11/8/27 in pay't of $135,000 debt.


See certificate No. 16.” On the stub is a notation to the effect that this stock was transferred

from George B. Williams. There is no evidence showing who made the above markings, nor,except for the figures themselves, when they were made. Appellant, according to his

testimony, which must be taken as true in disposing of the question now under consideration,

first learned about these markings on certificate No. 6 in the spring of 1932, when George B.

Williams and M. Genevieve Williams were examined in the supplementary proceedings

already spoken of herein. The stock certificate book had not been in his possession since June

29, 1929, and at that time he had never seen said markings. Appellant's evidence tends to

show that said purported cancelation and transfer were not authorized before or on November

8, 1927, nor ratified at any time thereafter. The corporation meetings were held at appellant's

office, but his testimony tends to show that no meetings were held or minutes written up after

February, 1927. Appellant's evidence tends to show that he was never consulted with

reference to the purported cancelation of said 1,350 shares, that he never discussed the matterwith Mr. or Mrs. Williams, never advised that it was the proper method for canceling the

stock and reducing Mr. Williams' holdings. The evidence of appellant further tends to show

that the $135,000 indebtedness was in the main a corporate, not an individual, debt; that

certificate No. 6, for 1,621 shares, could not have been canceled in payment of such debt,

because 271 of the shares represented by said certificate were reissued after the purported

date of said cancelation. Appellant's evidence tends to show that the purported cancelation

and transfer of November 8, 1927, were without consideration, and not made in compliance

with the provisions of the law under which respondent was incorporated. See sections 42 and

68 of the general corporation act of 1903 (Stats. 1903, c. 88). It appears also that at the time

of the purported cancelation the only stockholders of respondent corporation were theimmediate members of WKH*HRUJH%


the George B. Williams family and household. Appellant's testimony further tends to show



that he was refused permission to see the stock books of respondent corporation, and only got

to see them when Mr. and Mrs. Williams were compelled to produce them on their

examination in the supplementary proceedings.

The foregoing circumstances, considered with other evidence in the case, were and are, in

our opinion, sufficient to make out a prima-facie case showing ownership by appellant of the

stock in controversy at the time of the alleged conversion on May 31, 1932.Respondent's admissions in its answer, and appellant's testimony, are clearly sufficient to

make a prima-facie case showing that appellant, on May 31, 1932, demanded of respondent

that it transfer the stock in question to him, and issue a new certificate or certificates to him

therefor; also that respondent refused said demand.

13, 14. The same is true of the testimony offered by appellant to show the actual value of

the stock in dispute. The authorities heretofore cited are to the effect that when such stock has

no market value, its actual value may be shown. Appellant offered substantial evidence in this

case bearing on the actual value of said stock. The amount of respondent's liabilities, and

other matters peculiarly within respondent's knowledge, may properly be offered in its behalf.

Authorities already cited show what constitutes a conversion of corporation stock.

Appellant has produced substantial evidence to show that respondent converted the stock inquestion on May 31, 1932, and that said conversion was wrongful. One of the main

considerations to bear in mind on this issue is that we are not dealing here with a case where

respondent is in possession of stock claimed by one or more third parties. It is respondent

itself claiming to own this stock as against appellant. Respondent is presumed to know all the

facts and circumstances upon which its claim is based, and appellant has offered substantial

evidence WHQGLQJWRVKRZWKDWWKHSXUSRUWHGFDQFHODWLRQDQGWUDQVIHUDOOHJHGWRKDYH

EHHQPDGHRQ1RYHPEHUZHUHQRWLQJRRGIDLWKDQGYRLGDVWRFUHGLWRUV


tending to show that the purported cancelation and transfer alleged to have been made on

November 8, 1927, were not in good faith, and void as to creditors.

In view of the authorities hereinbefore cited, and sections 1748 and 1722 N. C. L., and on

the showing made by appellant at the trial, we are of opinion that he was entitled to have said

shares transferred to him, and a new certificate or certificates issued evidencing his ownership

thereof.

15. Respondent's contention that the only relief appellant would be entitled to, in any

event, from the judgment of nonsuit and dismissal, would be a new trial, but that a new trial

may not be granted where the court has given judgment of nonsuit, is without merit. Tonopah& Goldfield R. Co. v. Fellenbaum, supra; 64 C. J. 418; 46 C. J. 80, 118-120.

The judgment and order appealed from are reversed, and the cause remanded for a new

trial.

____________



ÐÐÐÐ56 Nev. 260, 260 (1935) Seaborn v. WingfieldÐÐÐÐ

SEABORN, Bank Examiner and Superintendent of

Banks, v. WINGFIELD

No. 3080

September 5, 1935. 48 P. (2d) 881.

1. Corporations.“Corporators,” as used in constitutional provision that “corporators” should not be individually liable

for debts and liabilities of corporation, means members or stockholders of corporation or constituents of

body corporate (Const. art. 8, sec. 3).

2. Constitutional Law—Statutes.Where doubt may exist as to proper construction to be placed on constitutional or statutory

provisions, courts will give weight to construction placed thereon by other coordinate branches of

government and by officers whose duty it is to execute its provisions.

3. Banks and Banking.Section of statute imposing liability for debts of bank upon its stockholders held invalid as violative

of constitutional provision that corporators should not be individually liable IRUGHEWVDQGOLDELOLWLHV

RIFRUSRUDWLRQ&RPS


for debts and liabilities of corporation (Comp. Laws 1929, sec. 661; Const. art. 8, sec. 3).

4. Corporations.

Constitutional provision that corporators should not be individually liable for debts and liabilities of

corporation held to exempt stockholders from liability for proportionate share of indebtedness as well as

entire debt of corporation (Const. art. 8, sec. 3).

5. Banks and Banking.

Contractual liability of stockholder in bank was fixed by bank's articles of incorporation, the

constitution, and laws of state in force at time of incorporation of bank.

6. Corporations.

When person subscribes for shares of stock in corporation and subscription is accepted by

corporation, constitution of state and all valid laws then in force which limit liability of stockholder

become part of subscription contract and are incorporated in it.

7. Statutes.

Invalid provision of law under which bank was incorporated could not form part of contract between

stockholders and corporation.8. Corporations.

Where state constitution declares what liability of stockholder for debts of corporation shall be,

legislature may not impose additional liability.

9. Corporations.

In contract between corporation and stockholder or in action by corporation or its creditors against

stockholder, stockholder is to be regarded as individual person, separate and distinct from corporation,

with right to stand upon terms of contract by virtue of which he became stockholder, as such contract is



interpreted and limited by laws under which it was made.

10. Contracts.Persons, whether natural or artificial, will be presumed to have entered into contract with reference to

valid laws of state, and only provisions of contract which are legally enforceable will control parties

thereto.

11. Corporations.Mere fact of incorporation and organization under law which included provision that corporators

should be individually liable for debts and liabilities of corporation held insufficient to warrant inference

of intention on part of corporators to waive constitutional inhibition against individual liability of

corporators for debts of corporation, where provision of statute imposing individual liability on

stockholders was independent of every other section of act (Comp. Laws 1929, secs. 661, 722; Const.

art. 8, sec. 3).

12. Banks and Banking.Individual liability of stockholder for debts and liabilitiesRIEDQNKHOGQRWFUHDWHGE\

UHOLDQFHRIGHSRVLWRUVDQGFUHGLWRUVXSRQVHFWLRQRIVWDWXWHXQGHUZKLFKEDQNKDG EHHQLQFRUSRUDWHGDQGZKLFKSURYLGHGIRULQGLYLGXDOOLDELOLW\RIVWRFNKROGHUVZKHUH FRQVWLWXWLRQSURYLGHGWKDWFRUSRUDWRUVVKRXOGQRWEHOLDEOHLQGLYLGXDOO\IRUGHEWVDQG OLDELOLWLHVRIFRUSRUDWLRQVLQFHVWRFNKROGHUZDVDQVZHUDEOHRQO\WRREOLJDWLRQRIKLV FRQWUDFWDQGSHUVRQLVSUHVXPHGWRK DYHHQWHUHGLQWRFRQWUDFWZLWKUHIHUHQFHWR YDOLGODZVRIVWDWH&RPS


of bank held not created by reliance of depositors and creditors upon section of statute under which bank

had been incorporated and which provided for individual liability of stockholders, where constitution

provided that corporators should not be liable individually for debts and liabilities of corporation, since

stockholder was answerable only to obligation of his contract, and person is presumed to have entered

into contract with reference to valid laws of state (Comp. Laws 1929, sec. 661; Const. art. 8, sec. 3).

13. Statutes.Unconstitutional law is tantamount to no law at all.

14. Banks and Banking.Where neither bank nor stockholder therein asserted right or performed act under unconstitutional

section of statute imposing individual liability on stockholders for corporation's debts, participation of

stockholder in incorporation of bank under such statute held not to estop stockholder from asserting

constitutional exemption from individual liability for corporation's debts (Comp. Laws 1929, sec. 661;

Const. art 8, sec. 3).

Appeal from Second Judicial District Court, Washoe County; H. W. Edwards, Judge

Presiding.

Suit by E. J. Seaborn, as Bank Examiner and as Superintendent of Banks, in charge of the

United Nevada Bank, against George Wingfield. Judgment for defendant, and plaintiff

appeals. Affirmed.

Gray Mashburn, Attorney-General; H. R. Cooke, Special Deputy Attorney-General; and

Harwood & Diskin, for Appellant:

At the time of the incorporation of the bank and the acceptance by defendant of the



benefits of a stockholder, section 12 of the 1911 banking act (section 661 N. C. L.) provided

an individual liability on the part of the stockholders in favor of the creditors of the bank.

This section, at all times from the date of its enactment until its repeal in 1933, and at the

time of the acceptance of the said benefits by the defendant, was presumed to be

constitutional, under the well-recognized rule that “a statute is presumed to be constitutional

until construed by the courts to the contrary.” This general rule has been held the law of Nevada. State v. Jon, 46 Nev. 418, 211 P. 676; Ex Parte Goddard, 44 Nev. 128, 190 P. 916.


It is a well-settled rule of law that where a person voluntarily takes advantage of and

accepts the beneficial portions of an act, he thereby waives any right he may have otherwise

had to contest the validity or constitutionality of the burdensome or onerous portions thereof,

and, as to such party, the doctrine of estoppel in pais applies with full force and effect. Hurley

v. Commission of Fisheries of Virginia, 264 Fed. 116, 257 U. S. 223, 66 L. Ed. 206; Cooley'sCon. Lim. (8th ed.), vol. 1, p. 368.

The constitutional provision, sec. 3, art. VIII, refers only to “corporators,” i.e., parties

incorporating a company, and not to persons subsequently becoming stockholders. 14a C. J.

1424; 1 Fletcher Corp. 148, sec. 103; Chase v. Lord, 77 N. Y. 1; Frost on Incorporation and

Organization of Corporations (3d ed.), p. 12, sec. 2; 1 Cook on Corporations (6th ed.), p. 44,

sec. 10; New Century Dictionary; 2 Words & Phrases, 1623; 7 R. C. L. 70, sec. 50; 14 C. J.

251, sec. 282.

The various provisions of proposed constitutions in territorial days, as well as statutory

enactments, clearly show the lawmaking of that period carefully differentiated between

“corporators” and “stockholders.”

Geo. B. Thatcher, for Respondent:

At the time of the adoption of the constitution of 1864, the general and accepted meaning

of the word “corporators” was synonymous with “stockholders and members.” It was a

broader word than stockholder, and was inclusive of stockholders, members and the

constituents of the corporation. The constitution of the State of New York as of this period

uses the word “corporators,” and this was construed to mean stockholders and members.

McKinney's Consolidated Laws of New York, annotated, book 2, p. 488.

Unquestionably, in using the word “corporator” the framers of the constitution were using

it in the generally accepted meaning of the term. The term “corporator” is used synonymously

with “stockholder,” and that is said to be the ordinary sense of the term.


Thompson on Corporations, vol. 4 (2d ed.), p. 1298; In re Lady Bryan Mining Co., 14 Fed.

Cases, 926; In re Atlantic Mutual Life Ins. Co., 2 Fed. Cases, 628; Gulliver v. Roelle, 100 Ill.



14; Shufeldt v. Carver, 8 Ill. App. 545; 14a C. J., p. 1424.

There is here no question of estoppel. The articles of incorporation do not provide for a

double liability of the stockholders. In order to constitute an estoppel there must be acts of

conduct which amount to a representation and a reliance thereon which influences the

opposite party to do an act or take a position which he would not have otherwise taken. Ford

v. Brown, 45 Nev. 202; State v. Justice's Court, 45 Nev. 133; Wilson v. Randolph, 50 Nev.371.

All of the corporation cases cited by counsel deal with the estoppel of a corporation to attack

the validity of a statute under which it was organized or is entitled to do business. There is a

clear distinction between this class of cases and those which deal with a stockholder and his

liability, which is contractual in character. The stockholder contracts with the corporation,

and this contract is for the benefit of the corporation and its creditors. Schramm v. Done, 293

P. 931.

The fact that the bank incorporated under an act which contained an unconstitutional

provision cannot render that provision enforceable, nor confer any power on a court to

enforce it. Morse v. Metropolitan S. S. Co., 102 Atl. 524; Hanover Fire Insurance Co. v. Carr,

71 L. Ed. 572; Quaker City Cab Co. v. Pennsylvania, 72 L. Ed. 927; United States v.Chicago, etc. P. R. Co., 75 L. Ed. 359; Central Branch, U. P. R. Co. v. Smith, 23 Kans. 525.

The supreme court of this state has recognized that the word “corporator” is synonymous

with stockholders and members of the company, and has expressly declared that there can be

no liability of stockholders under the constitution. Thompson v. Lake, 19 Nev. 103.

We urge upon the court that the constitution was a part of a contract, and that an invalid

statutory provision can be no part of the shareholder's contract.


Thompson on Corporations (2d ed.), vol. 4, sec. 4761; Willis v. St. Paul, etc. Co., 50 N.

W. 1110, 16 L. R. A. 221, and note at p. 282; St. Paul v. People, 17 N. E. 447; Meagher v.

Storey Co., 5, 6, 7 Nev. 197; Davis v. McKeeby, 5, 6, 7 Nev. 351.

The rule is well settled that legislative and executive construction which has been adopted

and acted on with the acquiescence of the people for many years should, in the absence of an

imperative reason to the contrary, be accepted as a correct interpretation of a constitutional

provision.

OPINION

Per Curiam:

The appellant brought this suit in the Second judicial district court to recover a judgment

against the respondent in the sum of $103,226, claiming that as a shareholder in said bank to

the extent of 2,377 shares of its capital stock he was individually liable thereon to the

stockholders and creditors of the bank by virtue of section 12 of the banking act of 1911,

approved March 22, 1911, and being section 661 of the Nevada Compiled Laws. The

complaint contains allegations which, so far as relevant, may be stated as follows: The United



Nevada bank was incorporated as a banking institution and organized under and pursuant to

said act. On the 12th day of December, 1932, the appellant, finding the bank to be insolvent,

took charge and possession of its property, business, and assets, and ever since that time has

had charge and possession thereof as bank examiner and superintendent of banks. The

respondent, George Wingfield, was one of the incorporators of the bank, and has owned said

shares of stock since that time. That section 12 of the banking act of 1911 by which it isclaimed respondent's liability arose, reads as follows: “The stockholders of any bank

organized under this act, shall be individually liable to the creditors thereof, equally and

ratably, and not one for another, in addition to the amount of stock owned by WKHPLQDVXP

HTXDOWRWKHSDUYDOXHRIVXFKVWRFNDQGQRPRUH´


them, in a sum equal to the par value of such stock and no more.”

The total indebtedness of the said bank on the 12th day of December, 1932, was$1,745,287.60, and the total value of its assets on that date was the sum of $1,571,574.60,

leaving a net difference between the amount of liabilities and the value of assets of $173,713.

It is alleged that respondent is liable under said provision, notwithstanding the provisions

of article 8, sec. 3, of the constitution of Nevada, which provides as follows: “Dues from

corporations shall be secured by such means as may be prescribed by law; provided, that

corporators in corporations formed under the laws of this state shall not be individually liable

for the debts or liabilities of such corporation.”

Liability in this respect is put upon the ground that Wingfield waived any benefit intended

to be conferred by said constitutional provision and is estopped from claiming immunity

thereunder by becoming an incorporator of the bank, a stockholder thereof, and by receiving

dividends, and for the additional reason that he contracted with the creditors of the bank andsuch persons as might become creditors to accept the provisions of said banking act approved

March 22, 1911 (Comp. Laws 1929, sec. 650 et seq.), including the liability to such creditors

provided for in said section.

In due time respondent filed an answer setting up the unconstitutionality of said section 12.

The answer was attacked by a motion to strike and demurrer. These were overruled by the

court, and judgment in favor of Wingfield was rendered on the pleadings. Hence this appeal.

1-3. Appellant contends that the word “corporators,” as used in section 3, article 8, of the

constitution, must be held to mean only the original incorporators or organizers; that is, those

associates who are the getters-up of the corporation, and, if so construed, said provision of the

constitution is not unconstitutional. On the other hand, respondent is opposed to such arestricted FRQVWUXFWLRQ


construction. The inferences favorable to their construction of the word “corporators,” which



opposing counsel have drawn from the constitutional debates, territorial legislation, and

constitution making prior to the adoption of the state constitution, are of equivocal value. We

have found it unprofitable to indulge in similar speculation. We think the word “corporators”

appearing in the constitution must be taken in its general or usual sense to mean a member of

the corporation, one of the stockholders or constituents of the body corporate. That such is the

general or usual meaning attributed to the word is borne out by the statements of courts,textwriters and lexicographers. In Re Atlantic Mut. Life Ins. Co., 2 Fed. Cas., page 168, at

page 169, No. 628, it is said: “A corporator is one who is a member of the corporation, one of

the stockholders or constituents of the body corporate.”

Sawyer, Circuit Judge, in Re Lady Bryan Min. Co., Fed. Cas. No. 7978, a case arising in

Nevada, speaking for the court, said: “A ‘‘corporator,' as understood both in the law

respecting corporations, and in common speech, is ‘one who is a member of a corporation.'

(Bouv. Law Dict. and Webst. Dict.) That is to say, one of the constituents, or stockholders, of

the corporation. I do not know that the word has even been used in any other sense.”

The dictionaries referred to define the word as stated.

In the State of Illinois at the time of the decision in Gulliver v. Roelle, 100 Ill. 141, the

sixteenth section of the general insurance law of 1869 read: “The trustees and corporators of any company organized under this act shall be severally liable for all debts or responsibilities

of such company, to the amount by him or them subscribed, until the whole amount of the

capital of such company shall have been paid in, and a certificate thereof recorded as

hereinbefore provided.”

A section of the constitution provided: “Dues from corporations, not possessing banking

powers or privileges, shall be secured by such individual liabilities of WKHFRUSRUDWRUVRU RWKHUPHDQVDVPD\EHSUHVFULEHGE\ODZ´


the corporators, or other means, as may be prescribed by law.” Const. 1848, art. 10, sec. 2.

Construing the word “corporators” as used in the statute and constitution, the Illinois court

said: “It can scarcely admit of a doubt that the general and popular meaning of the word

‘corporator' concurs with the the highest lexicographical authority,—that it means a member

of a corporation. * * * And there can be no doubt that such is the sense in which the term is

used in the 2d section of article 10 of the constitution of 1848.” See, also, Shufeldt v. Carver,

8 Ill. App. 545.

“A corporator is one who is a member of a corporation; one of the stockholders or

constituents of the body corporate.” 2 Words and Phrases, First Series, p. 1623.In the ordinary sense of the term, “corporator” is used synonymously with “stockholder.”

Thompson on Corporations, vol. 4 (2d ed.), p. 1298. See Zabriskie v. Cleve., Col., & Cinn. R.

Co. et al., 23 How (U. S.) 381, 16 L. Ed. 488, Louis Snider's Sons' Co. v. Troy, 91 Ala. 224, 8

So. 658, 11 L. R. A. 515-518, 24 Am. St. Rep. 887, and Schramm v. Done, 135 Ore. 16, 293

P. 931-936, for use of the word in that sense.

The case of Chase v. Lord et al., 77 N. Y. 1, presented by appellant, is contra to the current

of authority. Concerning this case, however, we may say, that the wording of the New York



statute furnished a basis upon which reasonable minds might differ as to the correct

construction. Three of the seven judges joined in a strong dissenting opinion, in which it was

said: “The word ‘trustees' as used here, means directors, and the word ‘corporators' means

members of the corporation. These two words commonly have such meaning when used in

relation to corporations.”

In view of the commonly accepted meaning of the word “corporator,” we are led to believethat the framers of the constitution, among which were some very able lawyers, were familiar

with that meaning. It would seem, too, to be quite unlikely that they intended WRLJQRUHWKDW

VHQVHRIWKHZRUGDQGHPSOR\LWLQDUHVWULFW HGVHQVH


to ignore that sense of the word and employ it in a restricted sense. To so construe it would be

most technical, and constitutions are not to receive a technical construction. Constitutions do

not deal in particulars, and the makers would hardly be unduly solicitous for the protection of a class so relatively few and unimportant at the getters-up of a corporation. If the framers of

the state constitution intended to impose a double liability on stockholders, they probably

would have expressed that intention in the clearest language, especially when such liability is

in derogation of the common law.

It is worthy to note as bearing on the probabilities of the case that, at the first meeting after

the adoption of the constitution, no provision was made for the individual liability of a

stockholder in the corporation law then enacted. This omission is more significant when it is

remembered that at the first, as well as at other, sessions of the legislature, there were many

members who were prominent members of the constitutional convention. State v. Glenn, 18

Nev. 34-43, 1 P. 186. A further significant circumstance is revealed by the fact that almost

half a century elapsed before provision for a stockholders individual liability was attempted tobe incorporated in the corporation law. It is also to be observed that, since the adoption of the

act of 1911, notwithstanding bank failures have happened in this state prior to the instant case

and such banks were unable to pay their depositors, no bank examiner, state banking board,

attorney-general, or any creditor or depositor of any such bank has sought heretofore to

charge the stockholders with individual liability to the creditors or depositors by reason of

section 12 of said banking act. On the contrary, the appellant has heretofore recognized the

invalidity of section 12 of said banking act by declaring as follows in his biennial report of

1929-30: “It having been found that the double liability clause (section 12 of the banking act)

is in conflict with the state constitution, which provides that incorporators shall not be liable

for the debts of WKHFRUSRUDWLRQ,UHFRPPHQGWKDWWKHOHJLVODWXUHEHDVNHGWRWDNHWKH LQLWLDOVWHSVWRDPHQGWKHFRQVWLWXWLRQVRDVWRH[FHSWWKHLQFRUSRUDWRUVRIEDQNVIURPWKLV

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the corporation, I recommend that the legislature be asked to take the initial steps to amend



the constitution so as to except the incorporators of banks from this provision. When and if

such amendment becomes a fact, all stockholders of banking corporations should be required

to file annually with the bank examiner an affidavit as to their ability to meet this contingent

liability.”

“Where a doubt may exist as to the proper construction to be placed on a constitutional or

statutory provision, courts will give weight to the construction placed thereon by othercoordinate branches of government and by officers whose duty it is to execute its provisions.”

State v. Brodigan, 35 Nev. 35-38, 126 P. 680, 682.

An unqualified expression of the view we take is found in Thompson v. Reno Sav. Bank,

19 Nev. 103, 7 P. 68, 69, 3 Am. St. Rep. 797. The court said: “The shareholders are not,

under the constitution, liable for the debts of the corporation.”

This expression, on a point not necessarily arising in the case, is not binding on us, it is

true. However, it is of persuasive force. It coincides with the general opinion as to the

meaning of the word “corporator,” and besides, is the opinion of a former member of this

court, apparently concurred in by his associates, as to the meaning of the word “corporators”

as used in our constitution. The supreme court of that period recognized the meaning to be

synonymous with stockholders or members of a corporation. Our conclusion renders section12 of the banking act null and void.

4. There is no merit is appellant's contention that, assuming that the constitution intended

to exempt stockholders from double liability, it meant to do so only for the entire debt of the

corporation and not for the stockholders' proportionate share of the indebtedness. Such

intention does not appear by express provision or just implication.

5. It is contended by appellant that the contractual liability of the stockholders of the

United Nevada bank was established when the bank incorporated under the EDQNLQJDFWRI DQGWKDWUHVSRQGHQWDVDVWRFNKROGHUWKHUHE\ZDLYHGDQ\H[HPSWLRQXQGHUWKH FRQVWLWXWLRQDQGHQWHUHGLQWRDFRQWUDFWZLWKWKHGHSRVLWRUVDQFUHGLWRUVRIWKHEDQN

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banking act of 1911, and that respondent, as a stockholder, thereby waived any exemption

under the constitution and entered into a contract with the depositors an creditors of the bank,

defined by the terms of the statute.

It is true that the contractual liability of respondent was fixed at that time. Such liability

was fixed by the bank's articles of incorporation, the constitution, and laws of the State of

Nevada then in force. Schramm v. Done, 135 Ore. 16, 293 P. 931, 932. In the case just cited,

it was held that the contract rights of the original stockholders with the corporation were fixed

by the charter and the statute and constitution as they stood at that time. 7 R. C. L., p. 370,

sec. 351.

6. The nature of such a contract is well stated in Haberlach v. Tillamook County Bank, 134

Ore. 279, 293 P. 927, 928, 72 A. L. R. 1245. In that case the court said:

“It is settled law that, when a person subscribes for shares of stock in a corporation and his

subscription is accepted by the corporation, the constitution of the state and all valid laws



then in force which limit the liability of a stockholder become a part of the subscription

contract and are incorporated in it. [Citing cases.]

“In such case, the stockholder agrees that, in consideration of the benefits he expects to

derive from the stock ownership, he will perform all obligations that the law, at the time he

enters into the contract, imposes upon a stockholder, and the corporation agrees that, in

consideration of his purchase of the stock, it will not enforce as against him any obligationnot imposed by law or promised at the time the subscription contract was made.”

7, 8. The law under which the bank was incorporated is an essential element of

respondent's contract with the corporation as one of its stockholders, but section 12 of that

law, being in conflict with the constitution, can in no wise form a part of such contract. It is

only a valid law touching a stockholder's liability that becomes incorporated in his contract.

Where the state FRQVWL WXWLRQGHFODUHVZKDWWKHOLDELOLW\RIDVWRFNKROGHUIRUWKHGHEWVRID FRUSRUDWLRQVKDOOEHWKHOHJLVODWXUHPD\QRWLPSRVHDQDGGLWLRQDOOLDELOLW\


constitution declares what the liability of a stockholder for the debts of a corporation shall be,

the legislature may not impose an additional liability. Wood v. Hamaguchi, 207 Cal. 79, 277

P. 113, 63 A. L. R. 861; Louis Snider's Sons' Co. v. Troy, 91 Ala. 224, 8 So. 658, 11 L. R. A.

515, 24 Am. St. Rep. 887; Yoncalla State Bank v. Gemmill, 134 Minn. 334, 159 N. W. 798,

L. R. A. 1917a, 1223. It was held in the last-cited case that the police power of the state to

regulate the banking business does not authorize the imposition of an additional liability on

the stockholders of a banking corporation when such burden is contrary to an express

constitutional provision in force at the time of the organization of the bank and the purchase

of the stock by the stockholder.

9. We come now to the contention of waiver and estoppel. It must be borne in mind, asstated in Ireland v. Palestine, etc. Turnpike Co., 19 Ohio St. 369, and quoted with approval in

Haberlach v. Tillamook County Bank, supra: “In a contract between the company and a

stockholder, or in an action by the former, or its creditors, against the latter, the stockholder is

to be regarded as an individual person, separate and distinct from the corporation. He

becomes a stockholder by virtue of a contract with the company, and he has a right to stand

upon the terms of that contract, interpreted and limited by the laws under which it was made.”

This distinction is quite generally recognized, and differentiates many cases cited by

appellant in which corporations have been held estopped to question an unconstitutional law.

We have examined with care most of the large number of cases which counsel for appellant,

by prodigous industry have collected in their briefs, particularly those holding to the effectthat one who invokes the provisions of a law may be denied the right to question its

constitutionality. Typical of the latter are the federal cases of Hurley v. Commission of

Fisheries, 257 U. S. 223, 225, 42 S. Ct. 83, 66 L. Ed. 206; Shepard v. Barron, 194 U. S. 553,

24 S. Ct. 737, 48 /(G3LHUFH2LO&RUSY3KRHQL[5HILQLQJ&R866&W/(G:LJKWY'DYLGVRQ866&W/(G %RRWK)LVKHULHV&RY,QGXVWULDO&RPPLVVLRQ866 &W/(G

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L. Ed. 1115; Pierce Oil Corp. v. Phoenix Refining Co, 259 U. S. 125, 42 S. Ct. 440, 66 L. Ed.

855; Wight v. Davidson, 181 U. S. 371, 21 S. Ct. 616, 618, 45 L. Ed. 900; Booth FisheriesCo. v. Industrial Commission, 271 U. S. 208, 46 S. Ct. 491, 70 L. Ed. 908; St. Louis

Maleable Casting Co. v. George C. Prendergast Construction Co., 260 U. S. 469-472, 43 S.

Ct. 178, 67 L. Ed. 351.

In Hurley v. Commission, supra, it was held that one cannot in the same proceeding, both

assail a statute and rely upon it. That is certainly not this case. Moreover, there is nothing to

indicate that defendant ever relied on section 12 of the 1911 banking act. In Wight v.

Davidson, supra, the question of estoppel was not determined by the court, although it was

strongly intimated that appellees, who had obtained a decree of the court of appeals of the

District of Columbia (16 App. D. C. 371), reversing the supreme court of the district

confirming an assessment upon their lands known as the “Kall” tract, for alleged benefitsaccruing from the opening of certain streets adjoining such lands, were estopped to question

the act of Congress under which the assessment was made. The court said: “It may well be

doubted whether the appellees are in a position to question the validity of the statute. They are

the owners of the ‘Kall' tract mentioned in the 1st section of the act, and with respect to which

it was made a condition that the owners should dedicate the land in said tract contained

within the lines of the streets to be extended; and, it appears by the record, that, in order to

procure the desired action of the commissioners, they did dedicate to the District of Columbia

for highway purposes the land in said tract contained within the lines of S. Twenty-second,

and Decatur streets. * * * By such dedication the appellees put the act into operation, and

voluntarily subjected themselves to its provisions, including the mode of assessment.”

In Shepard v. Barron, supra, it was held that an objection that the frontage rule of assessment for a public improvement, prescribed by 87 Ohio Laws, p. 113, RSHUDWHGDVD GHQLDORIGXHSURFHVVRIODZFDQQRWEHXUJHGWRGHIHDWWKHFROOHFWLRQRIWKHDVVHVVPHQWV E\DEXWWLQJRZQHUVZKRSHWLWLRQHGIRUWKHLPSURYHPHQWVXQGHUWKHDFWDFWLYHO\ SDUWLFLSDWHGLQFDUU\LQJRXWWKHZRUNUHFRJQL]HGWKHMXVWLFHRIWKHDVVHVVPHQWVIURPWLPH WRWLPHGXULQJLWVSURJUHVVDQGVLJQHGDVWDWHPHQWIRUWKHSXUSRVHRILQGXFLQJWKHWKH LVVXDQFHDQGSXUFKDVHRIFRXQW\LPSURYHPHQWERQGVSUDFWLFDOO\WRWKHHIIHFWWKDWWKH

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operated as a denial of due process of law, cannot be urged to defeat the collection of the

assessments, by abutting owners who petitioned for the improvements under the act, actively

participated in carrying out the work, recognized the justice of the assessments from time to

time during its progress, and signed a statement for the purpose of inducing the the issuance

and purchase of county improvement bonds practically to the effect that the work had been

properly done, and that there was no defense to the bonds.



In Pierre Oil Corp. v. Phoenix Ref. Co., and St. Louis Malleable Casting Co. v. George C.

Prendergast Constr. Co., cited above, it was held that a corporation which avails itself of the

benefits conferred by a statute cannot deny its validity.

It is not difficult to see that the situation in the above citations does not resemble the case

here. They might be more nearly parallel if the banking corporation was contesting the

validity of the 1911 banking act to which it owed its existence and capacity to do businessand receive benefits as such, or to some part thereof essential to those ends. But they are not

at all to the point made that a stockholder of a corporation may be estopped to contest the

constitutionality of a statute imposing on him a personal liability for the debts of a

corporation in violation of an essential element of his contract, namely, the constitution which

expressly inhibits such liability, nor has such a case been noted in the vast list in appellant's

briefs. In Booth Fisheries Co. v. Industrial Commission, 271 U. S. 208, 46 S. Ct. 491, 70 L.

Ed. 908, also relied upon by appellants, the question was widely different. It is authority

merely for the rule that an employee who elects to accept the benefits of a workmen's

compensation act is estopped to attempt to escape its burdens by asserting that it is

unconstitutional.

10. Over against the cases of this type relied on by appellant may be noted cases of theclass of Hanover Fire Insurance Co. v. Carr, 272 U. S. 494, 47 S. Ct. 179, /(G $/5


185, 71 L. Ed. 372, 373, 49 A. L. R. 713; Quaker City Cab Co. v. Pennsylvania, 277 U. S.

389, 48 S. Ct. 553, 72 L. Ed. 927. In the former it was held that a state may not exact, as a

condition of a corporation doing business within its limits, that its rights secured by the

constitution of the United States may be infringed. To the contention that the corporationwaived such rights, the court said: “One argument urged against our conclusion is that the

relation of a foreign insurance company to the state which permits it to do business within its

limits is contractual, and that by coming into the state and engaging in business on the

conditions imposed it waives all constitutional restrictions and cannot object to a condition or

law regulating its obligations even though as a statute operating in invitum it may be in

conflict with constitutional limitations. This argument cannot prevail, in view of the decisions

of this court in well-considered cases. Home Ins. Co. v. Morse, 20 Wall, 445, 22 L. Ed. 365;

Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 30 S. Ct. 190, 54 L. Ed. 355; Terral v. Burke

Constr. Co., 257 U. S. 529, 42 S. Ct. 188, 66 L. Ed. 352; 21 A. L. R. 186; Fidelity & D. Co.

v. Tafoya, 270 U. S. 426, 46 S. Ct. 331, 70 L. Ed. 664; Frost & Frost Trucking Co. v.Railroad Commission, 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457.”

Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389, 48 S. Ct. 553, 72 L. Ed. 927, is to the

same effect. In Morese v. Metropolitan S. S. Co., 88 N. J. Eq. 325, 102 A. 524, 526, it was

held that, the provision of the corporation act authorizing the appointment of a recorder

without notice being unconstitutional, the corporation could assert the invalidity

notwithstanding it was incorporated under the act. In answer to the contention of waiver, the

court said: “The unsoundness of this contention is apparent. Persons, whether natural or



artificial, will be presumed to have entered into a contract with reference to the valid laws of

the state. Only the provisions of the contract which are legally enforceable will control the

parties thereto. The fact that the GHIHQGDQWLQFRUSRUDWHGXQGHUDQDFWZKLFKFRQWDLQHGDQ XQFRQVWLWXWLRQDOSURYLVLRQFDQQRWUHQGHUWKHSURYLVLRQHQIRUFHDEOHQRUFRQIHUDQ\SRZHU

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defendant incorporated under an act which contained an unconstitutional provision cannot

render the provision enforceable, nor confer any power on the court to enforce it.”

11. It is conceded that the articles of incorporation do not provide for a double liability of

stockholders, and we find nothing in the banking act of 1911 providing or implying that

incorporation under it should be deemed a waiver of constitutional immunity. The mere fact

of incorporation and organization under the law are not enough f rom which to infer an

intention on the part of the getters-up of the corporation to waive the constitutional inhibition.

Section 12 (section 661 Comp. Laws 1929) in its nature is distinctively independent of every

other section of the act, and is declared so in the act. Section 73 (section 722) declares: “Each

section in this act, and every part of each section is hereby declared to be independent of

every other section and part of section, and the holding of a section or part of section to be

void or ineff ectual for any cause shall not be deemed to affect any other section or part of

section.”

In regard to respondent being affected by section 12, the reasoning of the court in the case

of Philadelphia, etc., St. Ry. Co.'s Petition, 203 Pa. 354, 53 A. 191, 195, is quite pertinent. It

was asserted in that case that, because the appellant company was organized under an act of

1889, it was estopped to deny the constitutionality of section 14 of the act (P. L. 216).

Concerning this claim, the court said: “The suggestion that, as appellant owes its corporateexistence to the act of 1889, it cannot now deny the constitutionality of section 14, with its

amendment, is without force. This section, both in its purpose and effect, is a distinct

legislative enactment. If it be completely eliminated, all the other provisions stand in full

force. * * * Leaving out this section, the act stands as a whole complete in its parts. * * *

Appellant owes its existence to the act of 1889, so far as that act itself had life. It derives no

being in whole or part from DGHDGVHFWLRQRILW


a dead section of it. It neither affirmed nor denied the validity of it when it took out its charter

under the lawful enactments of the general act.” See 12 C. J., p. 771.

12. It is urged by appellant that depositors and creditors were misled to their prejudice by

relying for security upon said section 12, which they had a right to do because the section was

presumed to be constitutional. The argument is without force. Respondent is answerable only

to the obligation of his contract, and a person will be presumed to have entered into a contract

with reference to the valid laws of the state. Morse v. Metropolitan S. S. Co., supra.



13, 14. Respondent, as one of the getters-up of the banking corporation, had a right to

effect that purpose under the 1911 act without reference to section 12 of the act. This he could

do, and, in so doing, his act or omission cannot be said to form the basis of an estoppel. To

hold otherwise would be to say that one must heed an unconstitutional law; that, if he does

not, his conduct may mislead others to their prejudice. Neither the corporation nor respondent

asserted any right or performed any act under section 12. It was not needful to bring thecorporation into existence or to cause it to function as an entity, being as section 12 was a

distinct and independent provision pertaining only to a stockholder's liability. Moreover, by

force of the constitution, it was a dead limb on the legislative tree. An unconstitutional law is

tantamount to no law at all. As said in Meagher v. Storey County, 5 Nev. 244, 250: “A law

which is in conflict with the fundamental law of the state is no law, and therefore that it is so

in conflict is as available in defense as that no law whatever had been adopted.”

It was forcibly put in Norton v. Shelby County, 118 U. S. 425-442, 6 S. Ct. 1121, 1125, 30

L. Ed. 178: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it

affords no protection; it creates no office; it is, in legal contemplation, as inoperative as

though it had never been passed.”


Nothing whatever having been done under it or required to be done in the formation or

organization of the corporation or in carrying on its business and being a dead section, how

can it be said to give rise to the estoppel claimed by appellant? We are unable to give our

sanction to the claim.

The judgment is affirmed.

____________

ÐÐÐÐ56 Nev. 278, 278 (1935) State v. HoldawayÐÐÐÐ

STATE v. HOLDAWAY

No. 3023

September 5, 1935. 48 P. (2d) 420.

1. Homicide.Evidence held insufficient to sustain conviction of murder in first degree, but to justify a conviction

for murder in the second degree.

2. Criminal Law.In murder prosecution, statement of district attorney in argument to jury that certain witness would

not lie held improper.

Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.



Guy Holdaway was convicted of murder of the first degree, and he appeals. Affirmed and

remanded, with directions to enter judgment finding him guilty of murder of the second

degree.

Guy E. Baker, for Appellant:We contend that the district attorney was guilty of misconduct prejudicial to the defendant

by the use of the following language in his argument to the jury: “Counsel would want you to

believe Jones came up here and deliberately lied. I want to say to you, my friends, that I knew

Frank Jones' father and mother before Frank Jones was ever born—clear back in 1898—I

worked with Frank Jones' father—and I know that boy—I know his family—and I will tell

you that Frank Jones will not lie—Frank Jones did QRWJHWXSKHUHDQGGHOLEHUDWHO\OLH´


not get up here and deliberately lie.” State v. Cyty, 50 Nev. 256, 256 P. 793.

We believe that the evidence as introduced in this case is not sufficient to and does not

justify a verdict of guilty of first-degree murder with recommendation of the death penalty,

under secs. 10056 and 10068 N. C. L. We contend that by virtue of the friendship existing

between these men, which was proven and not denied, that there was no malice, either

express or implied. The only contrary testimony was that of Frank Jones, in which he testified

that Holdaway told him in answer to his question “What did you shoot this man for?” that he

owed him forty dollars. We desire to call the court's attention to the fact that Joe May stood

right beside these men and did not hear any such conversation. Also, Mr. Holdaway, in his

conversation just referred to, stated that the deceased did not and never had owed him forty

dollars. That is the only part of the record that discloses any possible malice.

Gray Mashburn, Attorney-General; W. T. Mathews and Julian Thruston, Deputy

Attorneys-General; and Roger Foley, District Attorney, for the State:

In the case at bar we contend that the credibility of the witness Jones was not of sufficient

importance, in view of the other testimony in the case, to render the remarks of the district

attorney prejudicial. The only testimony of Mr. Jones which is questioned by the defense is

the statement that the defendant told Jones “He owed me forty dollars,” in reply to Jones'

question “What did you shoot this man for?” Counsel did not offer any testimony

contradicting Jones' testimony as to this statement of the defendant.

The evidence unquestionably establishes that the defendant shot and killed the deceased,and our statutes provide that the burden of proving mitigating circumstances is upon the

defendant. Sec. 10081 N. C. L.

The evidence offered on the part of the prosecution LQWKLVFDVHGRHVQRWGLVFORVHWKDWWKH FULPHFRPPLWWHGE\WKHGHIHQGDQWDPRXQWVWRRQO\PDQVODXJKWHUDQGWKHHYLGHQFHGRHV QRWLQDQ\ZD\VKRZDQ\MXVWLILFDWLRQRUH[FXVHIRUWKHNLOOLQJRI(GGLH%UXQQHUE\WKH GHIHQGDQW




in this case does not disclose that the crime committed by the defendant amounts to only

manslaughter, and the evidence does not in any way show any justification or excuse for the

killing of Eddie Brunner by the defendant.

OPINION


Appellant was convicted of murder of the first degree and sentenced to be executed. This

appeal is from the judgment and from an order denying a new trial.

Briefs were filed as usual, but at the time set for argument both parties joined in an

application to this court that said judgment be modified by remanding the cause to the trial

court with directions to enter a judgment against the defendant (appellant) finding him guilty

of murder of the second degree and to pronounce judgment upon him as prescribed by law.The state was represented by the attorney-general and the district attorney of Clark County,

where the trial was had. Defendant was represented by his attorney, Guy E. Baker of Las

Vegas. As a basis for said application, said officials and attorney entered into the following

stipulation, which appears in the minutes of this court: “It was stipulated by and between the

Attorney-General, represented by Julian Thruston, his deputy, the District Attorney of Clark

County, Hon. Roger Foley, and the attorney for the appellant, Guy Baker, Esq., as follows:

That after a thorough study and review of the evidence set forth in the record in the above

entitled action, and it appearing to us that the jury erred in finding the defendant, Guy

Holdaway, guilty of murder in the first degree, and that the evidence adduced before the jury

was not sufficient to sustain said judgment, it is conceded and stipulated that in our judgment

the testimony in the record that the defendant at the time of the homicide was under WKH LQIOXHQFHRILQWR[LFDWLQJOLTXRUWRWKHH[WHQWQHFHVVDU\WRUHQGHUKLPWKHVDLGGHIHQGDQW LQFDSDEOHRIFRPPLWWLQJWKHFULPHRIPXUGHULQWKHILUVWGHJUHHWKDWH[FHSWDVWRWKH WHVWLPRQ\RI2IILFHU-RQHVWKHUHLVQRHYLGHQFHZKDWHYHULQWKHUHFRUGVKRZLQJDQ\ PRWLYHIRUWKHNLOOLQJWKDWWKHWHVWLPRQ\RI2IILFHU-RQHVZKLFKZDVLQHIIHFWWKDWLQ UHVSRQVHWRDTXHVWLRQE\-RQHVµ:K\GLG\RXVKRRWWKHGHFHDVHG"WKHGHIHQGDQW DQVZHUHGµ+HRZHGPHIRUW\GROODUVWKDWIURPWKHFRQGLWLRQRIWKHGHIHQ GDQWDWWKH WLPHWKHDERYHVWDWHPHQWZDVPDGHDVVKRZQE\WKHWHVWLPRQ\RI2IILFHU0D\DQGRWKHU ZLWQHVVHVLWLVOLNHO\WKDWWKHGHIHQGDQWZDVLQVXFKDFRQGLWLRQDVQRWWRIXOO\XQGHUVWDQG WKHVLWXDWLRQDQGDSSUHFLDWHWKHLPSRUWRIWKHZRUGVFRQWDLQHGL QKLVDQVZHUWR-RQHVLQ IDFWLQVWHDGRIVKRZLQJPRWLYHWKHHYLGHQFHRWKHUWKDQWKDWRI2IILFHU-RQHV HVWDEOLVKHGWKHIDFWWKDWWKHUHODWLRQVEHWZHHQGHIHQGDQWDQGGHFHDVHGXSWRWKHWLPHRI

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VHFRQGGHJUHH




the influence of intoxicating liquor to the extent necessary to render him, the said defendant,

incapable of committing the crime of murder in the first degree; that except as to the

testimony of Officer Jones there is no evidence whatever in the record showing any motivefor the killing; that the testimony of Officer Jones, which was in effect that in response to a

question by Jones: ‘Why did you shoot the deceased?' the defendant answered: ‘He owed me

forty dollars'; that from the condition of the defendant at the time the above statement was

made, as shown by the testimony of Officer May and other witnesses, it is likely that the

defendant was in such a condition as not to fully understand the situation and appreciate the

import of the words contained in his answer to Jones; in fact, instead of showing motive, the

evidence, other than that of Officer Jones, established the fact that the relations between

defendant and deceased up to the time of the killing were most friendly, the evidence

disclosing no express malice on the part of the defendant toward the deceased; so that it is our

judgment, for the reasons heretofore set forth, that the defendant is not guilty of the offense of murder in the first degree, but that it is the opinion and judgment of the Attorney-General of

the State of Nevada and the District Attorney of Clark County that the evidence clearly and

amply shows the defendant to be guilty of the crime of murder in the second degree, and that

the evidence adduced before the trial court was and is sufficient to sustain a verdict of guilty

of murder in the second degree. Being of the opinion heretofore stated, we ask that the

judgment of the trial court in and for the County of Clark, State of Nevada, be by this court

modified, and that the crime committed be adjudged to be murder in the second degree, and

that the Court remand the case to the trial court with instructions to impose sentence and

judgment upon the defendant in accordance with the statute setting forth the punishment of

murder in the second degree.”


Clause 6 of section 11032 of the Nevada Compiled Laws of 1929, as amended (Stats. of

Nevada 1931, p. 48, c. 41, sec. 1), after stating that the trial court has power to grant a new

trial when the verdict is contrary to law or evidence, goes on to say, “but if the evidence

shows the defendant to be not guilty of the degree of the crime of which he was convicted,

but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may

modify the judgment accordingly without granting or ordering a new trial, and this power

shall extend to any court to which the cause may be appealed.” The respective parties agreed

that, in the event this court should decline to grant said application, the appeal proper be

deemed submitted on the briefs on file therein.

While the stipulation entered into by the state and defendant is in no way binding upon this

court, it nevertheless deserves our serious consideration, particularly in view of the fact that

the officials representing the state are men of long experience in the prosecution of crime,

men of good judgment, able, and fully alive to the responsibilities of their respective offices.



We have therefore made a thorough and careful study of the record, for the purpose of

determining whether the evidence warranted a verdict of murder of the first degree.

Appellant was charged, by information filed in the Eighth judicial district court, Clark

County, with the murder of Eddie Brunner. These two men lived together in a cabin in that

section of Las Vegas known as Old Town. At about 8 o'clock on the evening of January 14,

1933, Brunner was seen struggling on the floor of the cabin, and a few minutes later his deadbody was found there, with a shotgun wound in the abdomen, extending back to the spine.

Officers were called shortly after Brunner was first seen, still alive, on the floor. Appellant

was in the cabin when the officers arrived, and in a few minutes they took him to jail.


Joe May, of the city police, a witness for the state, testified that appellant “didn't act like a

drunken man—he talked funny—he didn't stagger, but he did talk funny * * * he kind of

talked like he was half-crazy. * * * I thought he was full of dope or hop.”Police Officer Frank Jones, another witness for the state, testified that appellant “appeared

to me to be kind of doped up—or hopped up. * * * He was under the influence of liquor, I

thought, but I couldn't smell anything.”

Tomar A. Markle, who lived with John C. Maner in a cabin next to that of Brunner and

appellant, testified in behalf of the state that a few seconds before the “crash,” which he did

not at the time think was a shot, he looked through a window of the Holdaway-Brunner cabin

and saw Brunner, at about 8 o'clock in the evening, “looking directly into the bedroom, or

faced so he was turned in that position.” According to Markle, Brunner at that time said,

“What in hell are you trying to do?”

Cecil Mathews, in behalf of appellant, testified that the latter's reputation in the

community for peace and quietude was good.Appellant, a lather by trade, testified that he was drinking on said day, and that he

remembered nothing from about 6:30 in the evening until he awoke in jail the following

morning. During the day (January 14) he “got a half gallon jug of liquor” in the Williams

addition, and took it to the cabin. “Whiskey had been my downfall and had caused a lot of

trouble. I don't remember anything when I am drinking. I never had anyone come to me and

tell me that I had caused trouble or injured anybody in anyway. I have been confined in an

insane asylum about four times. I don't think alcohol or whiskey had anything to do with my

being confined to the State Hospitals. I don't think whiskey in any way has caused my mental

condition. But whiskey was my mellow tension, that is what doctors have told me, might

cause a man to get into the FRQGLWLRQ,GRZKHQ,DPGULQNLQJRUDSSDUHQWO\GULQNLQJWRR PXFK


condition I do when I am drinking or apparently drinking too much. It is a condition that I



don't remember anything what happened. On January 14th, the last thing I remember at that

time was, it must have been about six-thirty, I don't know just exactly what time. We were

going to the show at that time. Eddie had his clothes on and was all ready to go. The last thing

I remember or the last thing that I ever remember. * * * Never at any time have we had any

argument at any time, nor did I have any ill feeling toward him, and I don't think he did for

me for any reason at all. And there is no reason I know of why he should have. He never didat any time owe me forty dollars.”

W. M. Lee, than a prisoner in said jail, charged by the federal government with unlawful

possession of liquor, testified that on the night appellant was brought to the jail “he seemed to

be awfully drunk. * * * When he woke up or got up, he was standing up, holding on to the

bars, and he asked me what he was in jail for. I told him he killed a man and he asked me who

he had killed and I told him Eddie Brunner. He said, ‘I don't believe it.' He said, ‘Eddie

Brunner was my best friend.'”

John C. Maner, who lived in the cabin with Markle, testifying for the state, said that just

before the officers entered the appellant's and Brunner's cabin, “as I passed the window Mr.

Holdaway was sitting here by Mr. Brunner saying ‘Eddie, wake up—what's the matter,

Eddie?' * * * He had a dark expression—a kind of frown—or sad expression on his face.”Mr. Maner never knew of Eddie Brunner and appellant having any trouble. Mr. Brunner

had spoken to witness several times, appellant not being present, “of what a good partner he

(appellant) was.” The last time Brunner had so spoken to witness regarding appellant was

“probably not over three days” before January 14. There had been “drinking parties” in the

cabin of Brunner and appellant on previous occasions, according to Maner. During the day of

January 14, when appellant asked witness to have a drink, “I told KL P,WULHGWRGULQNDOOWKH VWXIILQWKHZRUOGEXW,FRXOGQW²DQG,KDGEHHQRIIRILWIRUWZR\HDUVDQG,GLGQWZDQW

WRGULQNDQ\PRUH


him I tried to drink all the stuff in the world, but I couldn't—and I had been off of it for two

years, and I didn't want to drink any more. He said he had been off for four months and had

got straightened out—got some work—bought some clothes and he thought he would

celebrate a little.” Witness testified that he saw appellant and deceased getting or eating

dinner that same evening, probably about 5 or 5:30. They were talking right along, but not

loud or boisterously—no rough talk as if they were quarreling. “If it had been boisterous I

would have heard it.” “I never did hear anything boisterous.” The sound of what was later

thought to be the shot “didn't sound like a shot, but a muffled shot.” If he hadn't been told ashot was fired he wouldn't have believed that it was a shot. When Markle came in, he said to

witness: “Them fellows are having trouble over there. And I heard something like that hit the

other or hit the wall.” Witness (Maner) testified further that one window in the room used by

appellant and deceased as kitchen, dining room, and sitting room (the room where Brunner's

body was found) had no shade, and that the electric light was “a big light—one of these large

sized globes. Made a very brilliant glow.” Witness testified that, when he went over after

hearing the noise, he did not see any smoke or smell any powder smoke; also that lying on the



floor, between the shoulders of deceased's body and the wall, was “a lathing hatchet or a

shingle hatchet—something like that.” Testifying further concerning the look on appellant's

face as the officers were taking him away, approximately eight or ten minutes after the sound

was heard, Mr. Maner said that “he had a pretty bad look on his face. * * * The way it looked

to me he was mad. Looking for anything to cause him trouble. * * * A pretty bad scowl. * * *

Like a man that is just mad—like he is mad, worried.” He had never seen that expression onappellant's face at any other time. Appellant had walked out of the cabin with a shotgun in his

hands very shortly after the sound was heard, and returned just before the RIILFHUVFDPH


officers came. Appellant, while “hunkered down” over deceased's body, said “Eddie, wake

up. What's the matter with you, Eddie?” several times—three or four or five. Witness (Maner)

did not know what became of the hatchet. When the officers came, the jug was on the table

about half full. Appellant could not see witness when the latter was looking at him while hewas speaking to deceased's body. “I was looking in on the light. I could see him and he

couldn't see out. If he had looked right up I don't suppose he would have seen me.”

During the eight- or ten-minute period during which, as Mr. Maner testified, appellant was

away from the cabin very shortly after the sound was heard, he had gone to the residence of

Mr. and Mrs. Fred Miller, who lived next to the cabin occupied by appellant and Mr.

Brunner. Some idea of how appellant was conducting himself may be gained by considering

some of the testimony of Mr. Miller, who testified for the state: “Well, when I first seen him,

some man knocked at the door and I opened the door and the defendant was standing just

outside my door with a gun in his hand. I jumped out of the door and grabbed the gun. He had

a shotgun—he had it in his hand. I asked him what he was doing and why he was fooling

around my place with a gun and he said there had been some kind of a disturbance around hiscabin or noise—or words to that effect. Then he came over to see if it was me. I told him I

had no business around his cabin and I hadn't been there. He said that somebody was making

a noise over there and he was trying to find out who it was.”

After telling appellant about some trouble the Millers had had with some other parties a

few nights before, Mr. Miller directed his wife to call the officers. This she did. “Said there

were some parties around throwing rocks on the tent and making a disturbance. He said ‘Yes,

I also heard all of that over in my cabin—me and my partner. Every bit of it.'” After some

more talk, appellant said to witness: “You take the gun and keep it. Then he said to me,

‘Where did I OHDYHP\FDU",VDLGµ<RXGLGQWFRPHXSKHUHLQQRFDU0\FDUZDVOHIW

VWDQGLQJRXWRQWKHVWUHHW


leave my car?' I said, ‘You didn't come up here in no car.' My car was left standing out on the

street. I said, ‘You didn't come up in no car,' and he walked out to the side of the street to see



if his car was there. We looked up and down the street and there was no car there, and I says,

‘You didn't come up here in any car,' and he still insisted he had his car, then he says, ‘Come

on over to my cabin,' and I says, ‘I don't want to go to your cabin with you. My wife went to

call the officers and I will stay here and wait for her then if I am gone she won't know what

happened.' He says, ‘Come on over to the cabin,' and I says, ‘You go on over to your cabin

and when my wife comes back I will come over and see you.' He went over to his cabin—hisdoor was standing partly open. He went in the door and closed the door.” Mr. Miller further

testified that, when the officers came, and Mr. Potter accused appellant of the killing, the

latter said: “Why he is the greatest pal I ever had—the best friend I ever had.” When appellant

arrived at Miller's residence, he did not have the gun in a threatening position. “No, kind of

like a person would usually hold a shotgun or a rifle—he didn't have the barrel pointed at the

door * * * the ordinary position a man would hold a gun under any circumstances where he

wasn't going to shoot.” When appellant was at Miller's he said nothing about anybody being

dead over at the cabin. As to whether appellant was intoxicated, witness testified, “I would

say that he was—very much so.”

There was an intimation of a motive for the killing in the testimony of Officer Jones, who

said that appellant, after his arrest, when asked why he killed Brunner, replied, “He owed meforty dollars.” Other officers who were present at the time did not testify to such a remark by

appellant. Appellant testified that Brunner never owed him $40, and no evidence, other than

that already referred to, was offered that he did. The state, on page 11 of its brief in this court,

expressly admits that the evidence does not disclose any motive for the killing.


In addressing the jury, the then deputy district attorney, now district attorney, used this

language: “I don't know what happened in there—it is impossible to tell whathappened—there was no one in this house but the defendant and the deceased—what

occurred there God only knows—but there is no evidence whatever of any violent act by

Eddie Brunner.” Respondent's brief, in the same connection, says: “Just what happened in

that room prior to the killing the evidence does not disclose.”

1. The testimony quoted and referred to herein is but a small part of that given at the trial.

The evidence taken as a whole was sufficient to warrant the conclusion that appellant

committed the homicide; that the offense was murder; but in our opinion the evidence was

not suff icient to convince a jury beyond a reasonable doubt that the killing was “willful,

deliberate and premeditated.”

2. We have given due consideration to the errors alleged to have occurred at the trial. Inhis closing argument to the jury, referring to certain testimony given by state's witness, Frank

Jones, the then district attorney said: “Counsel would want you to believe Jones came up here

and deliberately lied. I want to say to you, my friends, that I knew Frank Jones' father and

mother before Frank Jones was ever born—clear back in 1898—I worked with Frank Jones'

father—” At this point an objection was interposed, and the court said: “Mr. Harmon, you

will please confine your argument to the evidence and the jury are instructed to disregard any

argument of counsel that does not conform to the evidence.” Notwithstanding this



admonition, the district attorney proceeded as follows: “And I know that boy—I know his

family—and I will tell you that Frank Jones will not lie—Frank Jones did not get up here and

deliberately lie.” In view of defendant's stipulation in this court that the evidence at the trial

was sufficient to warrant a verdict of murder of the second degree, we do not decide whether

the district attorney's remarks would otherwise require a reversal in this case. But it LVSURSHU

WRREVHUYHZLWKRXWLQDQ\ZD\UHIOHFWLQJXSRQ2IILFHU-RQHVFUHGLELOLW\WKDWDQDWWRUQH\ VKRXOGQHYHU\LHOGWRWKHWHPSWDWLRQWRPDNHVXFKVWDWHPHQWVWRDMXU\ZKHQWKHUHLVQR

IRXQGDWLRQIRUWKHPLQWKHHYLGHQFH


is proper to observe, without in any way reflecting upon Officer Jones' credibility, that an

attorney should never yield to the temptation to make such statements to a jury when there is

no foundation for them in the evidence.

The other assignments of error are without merit.

The jury having been fully justified in finding the appellant guilty of murder, but having inour opinion improperly fixed the degree of the crime and imposed the penalty therefor, the

judgment of the lower court of murder of the first degree is hereby modified, and the cause

remanded to the district court, with directions to enter a judgment against the defendant

(appellant) finding him guilty of murder of the second degree, and to thereupon pronounce

judgment upon him as prescribed by law.

____________

ÐÐÐÐ56 Nev. 289, 289 (1935) Rahn v. Searchlight Mercantile Co.ÐÐÐÐ

RAHN v. SEARCHLIGHT MERCANTILE COMPANY

No. 3111

September 12, 1935. 49 P. (2d) 353.

1. Attorney and Client.Client who authorized attorney, through attorney who had charge of litigation, to get extension of time

to appear without making appearance, was bound by stipulation which operated as general appearance,

where attorney merely acted in good faith in excess of authority.


Action for unlawful detainer by the Searchlight Mercantile Company against Louis Rahn

and another. From an order denying motion to set aside and vacate default judgment against

Louis Rahn, Louis Rahn appeals. Order affirmed.

A. A. Hinman, for Appellant:



The stipulation was not binding because:

1. The authority of Guy E. Baker was limited and subject to the direction and supervision

of W. H. Metson, as directing attorney.


2. The execution and filing of the stipulation was never authorized nor directed, either

generally or specially by said W. H. Metson, said defendant, Louis Rahn, nor any other

person.

3. On the contrary, three days prior to the execution of said stipulation said Guy E. Baker

was expressly instructed by said W. H. Metson not to make an appearance in said action on

behalf of said defendant, Louis Rahn, for the reason said W. H. Metson had been informed

and always believed that no valid service of process had ever been made upon said defendant.

Because such appearance was unauthorized, this case falls squarely within the modern,

general rule, stated in 15 R. C. L. 858, as follows: “The early doctrine that the authority of anattorney who enters an appearance for a party in a judicial proceeding is conclusively

presumed has been generally repudiated, and the fact that an appearance has not been

authorized is ground for vacating such judgment by direct attack, either by motion to vacate,

or by proceedings in equity to obtain relief from such judgment.”

This court has adopted and followed the modern, general rule. Stanton-Thompson Co. v.

Crane, 24 Nev. 171, 51 P. 116.

Before service of process in an action, special authority is required before an attorney can

bind his client by a general appearance therein. 6 C. J. 644, n. 17; 132 Am. St. Rep. 154, n.;

Chase v. Dana, 44 Ill. 262; Rice v. Bennett (So. Dak.), 137 N. W. 359.

But a more cogent reason exists in this case for the vacation of said judgment. The

appearance made by said Guy E. Baker was expressly forbidden. In such a case nopresumption of authority can be indulged. 1 Banc. Prac. 59, n. 12; Knowlton v. McKenzie

(Cal.), 42 P. 580.

Leo A. McNamee and Frank McNamee, Jr., for Respondent:

As the lower court said: “The most that can be said for the evidence adduced is that Mr.

Baker may have DFWHGLQH[FHVVRIWKHDXWKRULW\JLYHQ´


acted in excess of the authority given.” Assuming, but not conceding, that Mr. Baker acted in

excess of his authority, the client is, nevertheless, bound. 88 A. L. R. 72 (note); Harshey v.

Blackmarr, 20 Ia. 161, 89 Am. Dec. 520, 533 (cited with approval in Stanton-Thompson Co.

v. Crane, 24 Nev. 171, 51 P. 116); McNeal v. Gossard, 68 Kans. 113, 74 P. 628; Collier v.

Falk, 66 Ala. 223; Kramer v. Gerlach, 28 Misc. 525, 59 N. Y. S. 855; 2 R. C. L. 986; 2 Enc.

of Pl. & Pr. 692; Neil v. Union National Bank (Okla.), 178 P. 659.



Upon receiving the wire from Mr. Metson, Mr. Baker, as directed, made a special

appearance for defendants Louis Rahn and Edith M. Rahn, by filing in the state court the

petition for removal to the federal court, the authorities holding that the filing of a petition for

removal amounts to a special appearance in the state court. 4 C. J. 1343.

The fact that the step taken preliminary to the filing of the petition for removal, to wit, the

obtaining of a stipulation extending time to plead, which was filed two days after the filing of said petition, caused a general appearance thereafter to be entered, would, nevertheless, bind

the client. McNeal v. Gossard, supra.

OPINION


The Searchlight Mercantile Company, a corporation, instituted this action for unlawful

detainer. The defendants employed as their attorney in the litigation one W. H. Metson, an

attorney having offices in San Francisco, Calif. Later they also employed in the litigation Guy

E. Baker, H. M. Morse, and C. D. Breeze, attorneys resident in the judicial district. Metson

had charge of the defense.On November 29, 1933, defendants, through attorneys Baker & Breeze, instituted removal

proceedings and the case was removed to the district court of the United 6WDWHVIRUWKH 'LVWULFWRI1HYDGDRQ'HFHPEHU


States for the District of Nevada on December 1, 1933. A motion to remand was heard in that

court and by order thereof the case was remanded to the court in which it was commenced.

On December 1, 1933, there was filed in that court the following stipulation: “It is herebystipulated by and between plaintiff above named and the defendants Louis Rahn and Edith M.

Rahn, that said defendants have to and including December 1, 1933, in which to answer or

otherwise plead to the complaint on file herein. Leo McNamee, Frank McNamee, attorneys

for plaintiff, Guy E. Baker, attorney for defendants.” The stipulation was dated November 24,

1933.

On March 12, 1934, the lower court rendered and entered judgment for unlawful detainer

against the defendants.

On September 1, 1934, the defendant, Louis Rahn, served and filed a notice of a motion to

be heard on the 8th of September, 1934, to set aside and vacate the default and judgment

upon the ground that the court was without jurisdiction of the person of said Louis Rahn. Theaffidavit of the latter filed in support of his motion reads: “That he is one of the defendants in

the above entitled action; that he was never served with summons therein; that he never

appeared in said action either in person or by attorney and that he never authorized Guy E.

baker, C. D. Breeze and H. M. Morse, attorneys at law, or any of them, or any other attorney

or person to appear for affiant, or to file any pleading or pleadings, stipulation or stipulations,

or any other paper in said action on his behalf.”

The hearings on said motion proceeded from time to time. It was contended thereon by



appellant (1) that the stipulation extending time to plead was contrary to express instructions,

and did not constitute a general appearance by him, and (2) that the purported service of

summons by publication upon him was void and of no effect.

It was stipulated at said hearing “that the argument PLJKWSURFHHGXSRQWKHILUVW FRQWHQWLRQDQGVWDQGVXEPLWWHGSURYLGHGWKDWLQWKHHYHQWWKHGHFLVLRQRIWKHFRXUWZDV LQIDYRURIVDLGGHIHQGDQWXSRQVDLGILUVWFRQWHQWLRQWKHKHDULQJRIVDLGPRWLRQZRXOG

WKHQSURFHHGXSRQVDLGVHFRQGFRQWHQWLRQ´


might proceed upon the first contention and stand submitted; provided, that in the event the

decision of the court was in favor of said defendant upon said first contention, the hearing of

said motion would then proceed upon said second contention.”

On December 28, 1934, the court entered an order denying the motion, and on request of

the movant, Louis Rahn, the court filed a written decision thereon. The appeal is from said

order. In the written decision the court said: “The evidence established that Mr. Baker wasemployed as counsel in the case. He was authorized to act under the direction of Mr. Metson,

an attorney of San Francisco. Directions given by Mr. Metson would have the same legal

effect as if given by the client insofar as the result of the appearance is concerned. The most

that can be said from the evidence adduced is, that Mr. Baker may have acted in excess of the

authority given. Even though he did so act, the client is bound. The cases clearly distinguish

between excess of authority and entire lack of authority. (Citing cases.) There was no lack of

authority in the case. By entering into the stipulation, Mr. Baker entered a general appearance

for his client, Louis Rahn, who is bound thereby.”

We are inclined to the conclusion reached by the trial court. The evidence adduced at the

hearing, it is true, discloses that Baker was employed by Rahn to act as attorney for thedefendants in the litigation under the direction of Metson, who had full charge and general

supervision of the defense. It is likewise true that Metson did not direct Baker to execute and

file the stipulation in question. The former did, however, by telegram of date November 21,

1934, direct Baker as follows:

“Guy E. Baker, Attorney, Boggs Bldg., Las Vegas, Nevada. Today last day for appearance

if three days in summons is correct. If correct please get order without appearance extending

time so application for change can be made so as not to waive the right of appearance.

“W. H. Metson.”


The intention of the sender that Baker was to avoid an appearance and at the same time

preserve defendants' right to apply for a removal is manifest. However, there is nothing to

indicate that Baker acted in bad faith. It appears from the record that his time was limited in

which to take action. He testified that he believed that a valid service of summons had been

made on Rahn by publication, otherwise he would not have entered into the stipulation; that it



was a situation that arose hurriedly and it was necessary to take the step immediately or

default judgment would have been entered; that it was a question of acting quickly on his own

responsibility. Under such circumstances, Baker being an attorney for the defendant and

having been directed by Mr. Metson to act in the matter, we are impelled to regard the action

taken by him as merely in excess of authority, and which resulted in a general appearance.

This conclusion is in accord with the weight of authority. Hendrickson v. Hendrickson., 15 N.J. Law, 102-106; Harshey v. Blackmarr et al., 20 Iowa, 161-187, 89 Am. Dec. 520; McNeal v.

Gossard, 68 Kans. 113, 74 P. 628; Kramer v. Gerlach, 28 Misc. 525, 59 N. Y. S. 855; Collier

v. Falk, 66 Ala. 223; 2 Ency. Pl. & Prac., p. 692.

Defendant places some reliance upon the case of Stanton-Thompson Co. v. Crane, 24 Nev.

171, 51 P. 116, but it is not in point. The attorney who entered the appearance of the

respondent in that case had never been employed by them and had no authority whatever from

them. He was therefore a stranger to the litigation.

As the court had jurisdiction of the person of said defendant Rahn, it is ordered that the

order of the lower court be and the same is hereby affirmed.


November 5, 1935.

Per Curiam:

Rehearing denied.

____________

ÐÐÐÐ56 Nev. 295, 295 (1935) In Re PilkingtonÐÐÐÐ

In Re PILKINGTON

No. 3110

October 16, 1935. 49 P. (2d) 965.

1. Attorney and Client.Evidence that attorney failed to pay over to client money which he had collected for client over

two-year period, that client had repeatedly demanded settlement, and that attorney had made repeated

promises to pay held to justify suspension for one year.

2. Attorney and Client.Where rules of procedure of state bar provided that if accused member failed to answer complaint

within time allowed, local administrative committee might proceed to determination, and that accused

should not be entitled to further notice, attorney who failed to answer complaint served upon him held not

entitled to notice of meeting of local administrative committee (Comp. Laws 1929, sec. 540 et seq.).

Original proceeding in the matter of H. Pilkington, attorney at law. Judgment in



accordance with opinion.

H. Pilkington, pro se.

George A. Montrose and Grover L. Krick, for State Bar of Nevada.

OPINION


H. Pilkington, a member of the state bar of Nevada, a corporation, was charged with

unprofessional conduct, before the local administrative committee of said state bar of

Nevada, in and for Mineral County, by a duly verified written complaint filed November 20,

1934, in that having been employed in his professional capacity to collect a judgment in favor

of one A. R. Werner, he did collect the same in June, 1932, and though often requested so to

do, he failed and neglected to account and pay over to said Werner, after deducting his proper

charges for his services, the proceeds of said collection or any part thereof.

On November 21, 1934, notice to answer the said complaint within ten days, if servedpersonally, was LVVXHGRQ1RYHPEHU0:&KLDWRYLFKPDGHD QDIILGDYLWWKDWRQ WKDWGD\KHVHUYHGDFRS\RIVDLGQRWLFHDQGDFRS\RIVDLGFRPSODLQWXSRQ+


issued. on November 22, 1934, M. W. Chiatovich made an affidavit that on that day he

served a copy of said notice and a copy of said complaint upon H. Pilkington at Hawthorne,

Mineral County, Nevada. Pilkington did not appear and file an answer to said complaint, or at

all. It appears that the local administrative committee of the state bar of Nevada, onDecember 17, 1934, held a meeting at the town of Hawthorne, Mineral County, Nevada, at

the hour of 1:30 p.m., at which witnesses were called and testified in support of the charges

contained in the complaint, and that said local administrative committee thereafter made its

findings and report to the honorable board of governors of the state bar of Nevada, wherein it

found said Pilkington guilty as charged in the complaint, and recommended that he be forever

disbarred and prohibited from practicing law in the courts of Nevada. It further appears that

thereafter and on January 3, 1935, notice of the receipt of said findings and recommendations

by said board of governors was mailed to the said H. Pilkington by the secretary of the state

bar of Nevada, at Hawthorne, Nevada. It further appears that thereafter at a special meeting of

the board of governors of the state bar of Nevada, of which H. Pilkington was duly notified,but at which he failed to appear and file a statement, or application for a trial de novo, or to

present additional evidence, the record having been fully considered, the said board of

governors found the charges in the complaint to be true, and that said Pilkington had been

guilty of unprofessional conduct warranting his being disciplined, and recommended that he

be suspended from membership in the state bar of Nevada for the period of one year, and

until he be reinstated by this court, that his license to practice law be revoked, and that he be

enjoined from practicing law directly or indirectly.



On May 27, 1935, Mr. Pilkington filed in this court his petition in this matter, in which he

states that he received a copy of the “Findings of Fact and Recommendation”; that he had no

notice of the hearing held DW+DZWKRUQH1HYDGDRQ'HFHPEHUE\WKHORFDO DGPLQLVWUDWLYHFRPPLWWHHXQWLODIWHULWZDVKHOGDQGWKHQRQO\WKURXJKKHDUVD\WKDWKH UHFHLYHGQRFLWDWLRQZDVDOORZHGQRFKDQFHWRF URVVH[DPLQHWKHZLWQHVVHVWKDWLWLV XQWUXHWKDWKHUHIXVHGWRSD\WKHDPRXQWFROOHFWHGRUWKDWKHKDGEHHQJXLOW\RIDQ\

XQSURIHVVLRQDOFRQGXFW


at Hawthorne, Nevada, on December 17, 1934, by the local administrative committee, until

after it was held, and then only through hearsay; that he received no citation, was allowed no

chance to cross-examine the witnesses; that it is untrue that he refused to pay the amount

collected, or that he had been guilty of any unprofessional conduct. The petition also alleges

that these proceedings were suggested and promoted by his personal and political enemies.

The prayer of the petition is that the report of the board of governors be disregarded, and thatthe proceedings against him be dismissed.

At the time this matter was set for hearing before this court upon the petition mentioned,

the accused appeared in person and made a statement to the effect that he had not been served

with notice to answer the complaint in this matter; that he did not know of the hearing at

Hawthorne, until after it had been held; and asked for a continuance, and upon the denial

thereof, he asked that the matter be referred back to the board of governors for rehearing. His

application being denied, and there being no argument upon the record, the matter was

ordered submitted for consideration and decision.

1, 2. The act incorporating the state bar of Nevada (Stats. Sp. Sess. 1928, c. 13, p. 13,

section 540 et seq., N. C. L.) creates a board of governors, provides for the creation of a localadministrative committee, provides for the adoption of rules of procedure, and contains other

provisions for the disciplining of members of the state bar of Nevada. The rules of procedure

adopted pursuant to the above-entitled act provide for the filing of a complaint against a

member of the state bar, and for the issuing and service of notice to appear and answer the

same. Rule XXII provides that if the accused shall fail to answer the complaint within the

time allowed, that the local administrative committee may proceed to a determination, and

that the accused shall not be entitled to any further notice. Thus it appears that by failing to

answer the complaint, the DFFXVHGZDVQRWHQWLWOHGWRQRWLFHRIWKHPHHWLQJKHOGE\WKH ORFDODGPLQLVWUDWLYHFRPPLWWHH


accused was not entitled to notice of the meeting held by the local administrative committee.

The accused does not contend in his verified petition that a copy of the complaint and a copy

of the “Notice to Answer Complaint” were not served upon him, though he makes vague

contentions to the effect that he had “no chance for a hearing, received no citation, and does



not know what evidence was adduced.” We infer that he means he had no notice of the time

and place of the investigation by the local administrative committee. Having defaulted, he

was not entitled thereto. The proceedings were regular in every respect, hence the only

question is: Do the facts justify the recommendations of the board of governors? We think

they do. The accused admits in his petition the receipt of the money, and his failure to pay it

over to Werner. The money was collected over two years prior to the filing of the charges,and Werner repeatedly demanded settlement, and the written statements of the accused, in the

record, show repeated promises to pay. The findings of the local administrative committee

and board of governors are conclusively proven.

It is ordered that H. Pilkington, the accused, be and he is hereby suspended from

membership in the state bar of Nevada for the period of one year, and until he be reinstated by

an order of this court; that his license to practice law in this state be and is hereby revoked;

and that he be enjoined from practicing law, directly or indirectly, until he is ordered

reinstated by this court.

____________

ÐÐÐÐ56 Nev. 299, 299 (1935) Roberts Mining & Milling Co. v. District CourtÐÐÐÐ

ROBERTS MINING & MILLING COMPANY v. THIRD JUDICIAL DISTRICT COURT,

in and for Eureka County, Et Al.

No. 3124

October 24, 1935. 50 P. (2d) 512.

1. Judges.Statute providing that not more than one change of judge may be granted in any action held

constitutional (Comp. Laws, secs. 8407.02, 8407, cl. 5).

2. Costs—New Trial.District judge called from his own district to try case in another district could after return to his own

district hear, in his chambers, motion for new trial and motion to retax costs in case tried in such other

district (Comp. Laws, secs. 8385, 8469, 8877, 8910).

3. New Trial.Statute requiring 10 days' notice of motion held inapplicable to notice of motion for new trial, in view

of statute relating specially to motions for new trial (Comp. Laws, secs. 8877, 8911).

4. Costs.

Statute requiring 10 days' notice of motion held inapplicable to motion to retax costs, in view of statute relating specially to motions to retax costs (Comp. Laws, secs. 8911, 8934).

5. Prohibition.In proceedings to prohibit district judge from considering motion to retax costs and motion for new

trial, question whether district court was without jurisdiction to try case on merits because no notice of

setting trial for hearing on merits had been given, because two motions by defendant had been regularly

noticed for hearing, but had not been heard or disposed of and because defendant had not waived jury

trial, could not be considered.



Original prohibition proceeding by the Roberts Mining & Milling Company against the

Third Judicial District Court of the State of Nevada, in and for the County of Eureka, and J.

Emmett Walsh, as Presiding Judge of such court. Petition for writ of prohibition denied

and alternative writ dismissed.

Hawkins, Mayotte & Hawkins, for Petitioner:No notice of the setting of the trial of June 17, 1935, or at any date, for hearing upon its

merits was ever given by the plaintiff therein to defendant, or at all; and said action was

noticed for June 3, 1935, for the SXUSRVHRQO\RIFDOOLQJXSDQGKDYLQJGLVSRVHGRI GHIHQGDQWVPRWLRQIRUOHDYHWRILOHDQDPHQGHGDQVZHUDQGFRXQWHUFODLPDQGDOORWKHU PRWLRQVDQGGHPXUUHUVSHQGLQJDQGXQKHDUGLQWKHDFWLRQ,QWKHDEVHQFHRIQRWLFHRI RWKHUSURFHHGLQJVDFWLRQXSRQVDLGPRWLRQVGHPXUUHUVHWFZDVDOOZKLFKWKHFRXUWDW

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purpose only of calling up and having disposed of defendant's motion for leave to file an

amended answer and counterclaim, and all other motions and demurrers pending and unheard

in the action. In the absence of notice of other proceedings, action upon said motions,

demurrers, etc., was all which the court, at said time, could properly take. Murrish v.

Kennedy, 54 Nev. 159, 10 P. (2d) 636; Sweeney v. Stanford, 60 Cal. 362; Platt v. Havens,

119 Cal. 244, 51 P. 342; Biggs v. Lloyd, 70 Cal. 447, 11 P. 831; Davis v. Heimbach, 75 Cal.

261, 17 P. 199; Rundberg v. Belcher, 118 Cal. 589, 50 P. 670.

The records in this proceeding show that on June 17, 1935, prior to the calling of the

action, defendant filed therein a statutory affidavit of prejudice or bias of the presiding judge,

the Hon. J. Emmett Walsh. Upon the filing of said affidavit, the sole and only authority thesaid district judge had was to make the change commanded by the statute. State ex rel. Stokes

v. District Court, 55 Nev. 109, 27 P. (2d) 534.

The provision of sec. 8407.02 N. C. L., which limits a change of judge to one change, and

one only, is a violation of the fourteenth amendment to the constitution of the United States,

and art. I, sec 8, of the constitution of Nevada, and does not constitute either due process of

law or equal protection of the law, as it would compel a litigant to try his case before an

interested, biased, prejudiced judge. Herbert v. Louisiana, 272 U. S. 312, 47 Sup. Ct. 103, 71

L. Ed. 270; Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383; Powell v. Alabama, 287 U. S.

45, 77 L. Ed. 158; Mooney v. Holohan, 79 L. 347, 348; Berger v. U. S., 79 L. Ed. 667; Norris

v. Alabama, 79 L. Ed. 598; Hollins v. Oklahoma, 79 L. Ed. 837.

The proposed hearing of the motion for a new trial proposed to be heard in Goldfield onJuly 5, was proposed to be held upon notice of seven days only. The statutory requirement is

ten days. Section 8911 N. C. L. Such notice is insufficient, and confers no jurisdiction upon

the respondent judge in the premises. Murrish v. Kennedy, supra.




The attempt to conduct proceedings at Goldfield, Esmeralda County, in an action pending

in Eureka County, is clearly outside the power of the judge and the contemplation of the

statute. Sec. 8385 N. C. L.; State v. Bardmess, 54 Nev. 84, 7 P. (2d) 817; Kline v. Vansickle,

47 Nev. 139, 217 P. 585; Kirby v. Chicago, R. I. & P. Ry. Co., 51 Colo. 82, 116 P. 150.

The phrase “at chambers” cannot mean any room or place the judge may find it convenient

to listen to argument; it is related to and connected with the court and county seat and is not

the domicile of the individual judge. Kirby v. C. R. I. & P. R. Co., supra; Bedwell v. Ross

(Okla.), 73 P. 267; Stanley v. U. S. (Okla.), 33 P. 1025; Sawyer v. Huning (Ariz.), 181 P.

172; Schmidt v. Wither (Colo.), 201 P. 886; McIntyre v. N. P. Ry. Co. (Mont.), 191 P. 1065;

Tedder v. Tedder (S. C.), 96 S. E. 157; State ex rel. v. District Court (Mont.), 152 P. 253;

Byram v. Johnson (Minn.), 217 N. W. 351; Wade v. Hope et al. (Okla.), 213 P. 549.

James T. Boyd, for Respondents, did not file a brief.

OPINION


Petitioner in this court is defendant in the court below. In September, 1933, M. J. Hough

commenced an action against Roberts Mining & Milling Company in the Third judicial

district court, Eureka County, praying for a money judgment in the sum of $3,740.74, for

work and labor performed, services rendered, money advanced, and money paid out to divers

persons for the use and benefit of defendant. A general and special demurrer to plaintiff's

complaint was filed in November, 1933. In June, 1934, defendant filed its answer to said

complaint, and later in the same month plaintiff filed his reply. Honorable Edgar Eather,

judge of the Third judicial district, disqualified himself and called in Honorable H. W.

Edwards, then judge of the 6HYHQWKMXGLFLDOGLVWULFWDQGWKHFDVHZDVVHWIRUWULDOIRU

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Seventh judicial district, and the case was set for trial for August 17, 1934. On August 16,

1934, defendant filed an affidavit alleging that it had cause to believe and did believe that on

account of the bias or prejudice of Judge Edwards it could not obtain a fair and impartial trial.

On said 17th day of August, 1934, Judge Edwards reassigned the case to Judge Eather. In

December, 1934, defendant served and filed notice of motion and motion for leave to file

amended answer and counterclaim. In the same month defendant served and filed notice of

motion and motion to make complaint more specific and certain and for bill of particulars.

Judge Eather, on March 12, 1935, assigned the case to Honorable J. Emmett Walsh, judge of

the Fifth judicial district. On or about May 23, 1935, plaintiff served notice on defendant that

he would call up for hearing, at Eureka, on June 3, 1935, all motions and demurrers then

pending in said case. On the 1st day of June, 1935, Judge Walsh had a conference at the



Golden hotel with Mr. Boyd, attorney for plaintiff, and Mr. Prince A. Hawkins, one of the

attorneys for defendant. At this conference, according to respondent and his attorney, Mr.

Boyd, the later consented to the filing of an amended answer and counterclaim by defendant,

and further agreed to furnish defendant with an itemized statement of plaintiff's claim; such

statement was in fact furnished on June 5, 1935. At said conference, according to said

respondent judge and his said attorney, Mr. Hawkins expressly agreed that all matterspending in said case be heard and the trial thereof had on the 17th day of June, 1935, at

Eureka. Whereupon, according to respondent judge and his said attorney, Judge Walsh

informed Mr. Hawkins and Mr. Boyd that he would be at Eureka on said 17th day of June,

1935, and on that day at 10 o'clock a.m. would hear all matters in said cause and proceed with

the trial thereof. Mr. Hawkins swears that at the conference on June 1, 1935, he stated to both

Judge Walsh and Mr. Boyd that he doubted very much being able to take up the motions DQG GHPXUUHUVRQ-XQHRQDFFRXQWRIFHUWDLQKHDULQJVLQWKHGLVWULFWFRXUWDW:LQQHPXFFD LQYROYLQJTXHVWLRQVLQWKH+XPEROGWULYHUDGMXGLFDWLRQSURFHHGLQJWKDWERWK-XGJH:DOVK

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and demurrers on June 17 on account of certain hearings in the district court at Winnemucca,

involving questions in the Humboldt river adjudication proceeding; that both Judge Walsh

and Mr. Boyd then and there agreed that if his engagements at Winnemucca terminated

before June 17, the motions and demurrers in said Eureka County case would be heard at

Eureka, but that if his said engagements were not terminated by June 17, the hearings at

Eureka would be continued over to some later date. Mr. Hawkins further states in his affidavit

that the hearings at Winnemucca commenced on June 4, and after several days were

continued over from time to time until June 17, at which time the hearings were resumed, andhe was engaged therein on said 17th day of June and until and including the 21st day of June,

1935. Respondent judge and his attorney, Mr. Boyd, in their affidavits in this proceeding,

deny that anything whatever was said at said conference about any hearings at Winnemucca,

and they further state that it was Mr. Hawkins himself who suggested June 17 as the date for

the hearings and trial in the Eureka County case. Mr. Boyd swears that on June 8, 1935, and

again on June 14, 1935, he informed defendant's attorneys that he would not consent to a

continuance. Mr. Hawkins, on the contrary, swears that on said 8th day of June, 1935, Mr.

Boyd agreed that the hearings at Eureka go over to a date later than June 17 in case Mr.

Hawkins should not conclude his Winnemucca engagements before that date. Mr. Hawkins

says further that on June 15, at Reno, respondent judge stated that the agreement made at the

time of the Reno conference early in June was that if Mr. Hawkins should not be able to

conclude his Winnemucca engagements before June 17, the Eureka hearings were to go over

till a later date.

Before 10 o'clock on the morning of June 17, 1935, defendant filed in the lower court an

affidavit alleging bias or prejudice on the part of Judge Walsh, who disregarded it because of

the affidavit previously filed disqualifying Judge Edwards. At or shortly after 10 RFORFNDP RQ-XQH-XGJH:DOVKSURFHHGHGWRWU\VDLGFDXVHDW(XUHNDGHIHQGDQWQRW



EHLQJSUHVHQWRUUHSUHVHQWHGE\DWWRUQH\


o'clock a.m., on June 17, 1935, Judge Walsh proceeded to try said cause at Eureka; defendantnot being present or represented by attorney. Evidence was offered by plaintiff, and judgment

was rendered for plaintiff and against defendant. On June 21, 1935, defendant served notice

of motion to retax costs. On June 26, 1935, defendant served and filed notice of intention to

move for new trial. On June 27, 1935, plaintiff served notice on defendant that “on Friday,

the 5th day of July, 1935, at ten o'clock a.m., or as soon thereafter as counsel can be heard, at

the Chambers of the Honorable J. Emmett Walsh at the Court House at Goldfield, Esmeralda

County, Nevada, plaintiff will call up for hearing the Motion of the defendant to Retax the

Costs, and at the same time and place will call up for hearing defendant's Motion for a New

Trial, and all other motions in said cause that can be heard in Chambers.” On July 3, 1935,

defendant filed its petition for writ of prohibition with the clerk of this court, and on the samedate an alternative writ was issued restraining and prohibiting respondent court and judge

“from considering or hearing defendant's said motion to retax costs, and defendant's said

motion for a new trial, and from taking any other proceeding in said action at Chambers in the

Court House at Goldfield, Esmeralda County, Nevada, until further order of this court.”

Respondent judge, J. Emmett Walsh, in his answer to said petition filed with he clerk of this

court on the 19th day of July, 1935, states: “That this affiant would have heard the said

Motions or any motions in said cause that could be heard in Chambers, and would have

determined the matters in accordance with the law and the procedure of this state, but due to

the fact that he received information that a Writ of Prohibition had been issued by this

Honorable Court, he took no further steps in said matter.”

Petitioner contends that respondent judge has no power to do anything relating to saidaction in the district court, except to reassign it to some other district judge for further

hearings. This position is based upon WKHJURXQGWKDWVHFWLRQ1&/


the ground that section 8407.02 N. C. L. (Statutes of Nevada 1931, c. 153, sec. 3, p. 248), is

unconstitutional insofar as it provides that “not more than one change of judge may be

granted in any action.” The fifth clause of section 8407 N. C. L., as amended, Stats. 1931, p.

247, provides that: “If either party to a civil action in the district court or his or its attorney oragent shall file an affidavit alleging that the affiant has cause to believe and does believe that

on account of the bias or prejudice or interest of said judge he cannot obtain a fair and

impartial trial, the said judge shall at once transfer the action to some other department of the

court, if there be more than one department of said court in said district, or request the judge

of some other district court of some other district to preside at the hearing and trial of such

action; provided, the party filing such affidavit for change of judge shall at time of filing same



pay to the clerk of the court in which such affidavit is filed the sum of twenty-five dollars,

which sum shall be by the clerk transmitted to the state treasurer, who shall place the same to

the credit of the district judges' traveling expense fund; provided, that this section shall not

apply to the arrangement of the calendar, or the regulation of the order of business.” Section

8407.02 N.C.L., already referred to, reads as follows: “Not more than one change of judge

may be granted in any action, but each party shall be heard to urge his objections to any judgein the first instance, and the change of judge shall be to the most convenient judge to which

the objections of the parties do not apply or are least applicable. If the parties agree upon a

judge then such judge shall be selected.”

Counsel has not cited, nor has the court been able to find, any other case in which the

constitutionality of the Nevada statute or other similar statutes concerning the disqualification

of judges has been attacked upon the ground that under their provisions but one change of

judge may be granted in any action.

The federal statute providing for the disqualification of a trial judge for personal bias or

prejudice by the ILOLQJRIDQDIILGDYLWFRQWDLQVWKHIXUWKHUSURYLVLRQWKDW³1RSDUW\VKDOOEH HQWLWOHGLQDQ\FDVHWRILOHPRUHWKDQRQ HVXFKDIILGDYLW´


filing of an affidavit contains the further provision that: “No party shall be entitled in any case

to file more than one such affidavit.” USCA, title 28, sec. 25.

When State ex rel. v. Clancy, 30 Mont. 529, 77 P. 312, 313, was decided, the Montana

statute (Code Civ. Proc. sec. 180, as amended by Laws 1903, 2d Ex. Sess., c. 3) provided

that: “No more than five judges can be disqualified for bias or prejudice, in said action or

proceeding, at the instance of the plaintiff, and no more than five at the instance of the

defendant in said action or proceeding.” It seems that this statute was later changed so as tolimit the number of judges that can be disqualified in Montana to not more than two (Rev.

Codes 1921, sec. 8868). Cornell Law Quarterly, vol. XIII, No. 3, April, 1928. The court in

State v. Clancy, supra, decided June 22, 1904, pointed out that in Arizona, California,

Colorado, Florida, Illinois, Indiana, Mississippi, Oregon, Wisconsin, and Wyoming, the

number of judges that may be disqualified is limited to one. The court in that case also said

that: “Of the 11 states which have somewhat similar statutes, in 10 of them only one change

of judge is permitted, and in the other (Iowa) only two.” In Bancroft's Code Practice and

Remedies, vol. I, p. 878, it is stated in a note that in Oregon no more than two applications

may be made, and in New Mexico a second change is within the discretion of the court.

Remington's Compiled Statutes of Washington (1922), sec. 209-2, reads as follows: “Anyparty to or any attorney appearing in any action or proceeding in a superior court may

establish such prejudice by motion supported by affidavit that the judge before whom the

action is pending is prejudiced against such party or attorney, so that such party or attorney

cannot, or believes that he cannot, have a fair and impartial trial before such judge: Provided,

further, that no party or attorney shall be permitted to make more than one application in any

action or proceeding under this act.” No doubt changes have been made in a number of the

states mentioned, and it is very probable that other states have enacted similar legislation. In



California, ZKHUHIRUPHUO\WKHQXPEHURIFKDQJHVWKDWFRXOGEHGLVTXDOLILHGZDVOLPLWHG WRRQHQROLPLWDWLRQZKDWHYHULVQRZSODFHGXSRQWKHQXPEHURIMXGJHVZKRPD\EH

GLVTXDOLILHG


where formerly the number of changes that could be disqualified was limited to one, no

limitation whatever is now placed upon the number of judges who may be disqualified.

Deering's Codes, Laws and Constitutional Amendments of California, 1933 Supplement, pp.

45-48 (Code Civ. Proc. sec. 170). In that state, however, at the present time a judge cannot be

disqualified as in Nevada by a mere affidavit imputing bias or prejudice. The judge is there

given the right to answer the statement of any party alleging that he is disqualified, and the

question of his disqualification is then heard and determined by some other judge. “Previous

to the year 1897, bias or prejudice was not a ground for the disqualification of a judge in

California. This holding was in accord with the common law rule on the subject.” California

Law Review, vol. XX, No. 3, March, 1932, p. 312; People v. Compton, 123 Cal. 403, 56 P.

44.

Petitioner's contention that the provision of section 8407.02 N. C. L., limiting the number

of changes of judges to one is unconstitutional, rests upon the grounds that said provision

violates the fourteenth amendment of the United States constitution, art. 1, sec. 8, of the

Nevada constitution, and that said provision does not constitute either due process of law or

equal protection of the law.

In Allen v. Reilly, 15 Nev. 452, defendant moved for a change of venue on the ground that

he could not have a fair and impartial trial before the judge presiding, for the reason that said

judge and defendant had been and then were bitter personal enemies. The motion was

supported by defendant's affidavit, but was denied by the trial court. On appeal this court said:“The judge was not disqualified under the statute. (Comp. L. 950.) It is held in California that

bias or prejudice on the part of the judge, even in a criminal case, constitutes no legal

incapacity to sit on the trial of a cause, and is not sufficient ground to authorize a change of

the place of trial. (People v. Williams, 24 Cal. [31] 33.) And so it was held in a civil case.

(McCauley v. Weller, 12 Cal. [500] 523.)” ,Q6WDWHH[UHO


In State ex rel. Elsman v. Second Judicial District Court, 52 Nev. 379, 287 P. 957, 960,this court said: “At common law the bias and prejudice of the judge would not disqualify or

incapacitate him to try a case. Allen v. Reilly, 15 Nev. 452; McCauley v. Weller, 12 Cal. 500;

People v. Williams, 24 Cal. 31; Bulwer, etc. Co. v. Standard, etc. Co., 83 Cal. 613, 23 P.

1109; In re Davis' Estate, 11 Mont. 1, 27 P. 342.”

And see 33 C. J. 998, 999; Bancroft's Code Practice and Remedies, vol. I, p. 854; 17 Am.

and Eng. Encyc. of Law (2d ed.), p. 738.

Section 9021 N. C. L. provides that: “The common law of England, so far as it is not



repugnant to, or in conflict with the constitution and laws of the United States, or the

constitution and laws of this state, shall be the rule of decision in all the courts of this state.”

The Nevada statute relating to the disqualification of district judges on account of bias or

prejudice is more favorable to parties desiring to disqualify such judges on those grounds than

the common law or any law of Nevada up to the time said legislation was enacted,

notwithstanding the limitation allowing but one change of judge.1. In view of what has been said, we decline to hold that that portion of section 8407.02 N.

C. L. which provides that not more than one change of judge may be granted in any action, is

unconstitutional.

As a further reason why the alternative writ should be made permanent, petitioner

contends that Judge Walsh has no jurisdiction to hear either the motion for new trial or the

motion to retax costs at his chambers at Goldfield. It is argued that, while any district judge

may transact chambers business in any part of the state, such business is limited to that of the

county where the judge may be. In other words, if a judge be called from his own district to

try a case in another, he may, while in the county where such trial is held, transact chambers

business therein, but he cannot, as petitioner contends, return to his own district and there

hear, in his FKDPEHUVDPRWLRQIRUQHZWULDORUDPRWLRQWRUHWD[FRVWVLQWKHFDVHWULHGLQ

VXFKRWKHUFRXQW\


chambers, a motion for new trial or a motion to retax costs in the case tried in such other

county.

Sections 8385, 8469 and 8910 N. C. L. read as follows:

“§8385. The district judges shall, at all reasonable times, when not engaged in holding

courts, transact such business at chambers as may be done out of court. At chambers they maytry and determine writs of mandamus, certiorari, quo warranto and default cases, hear and

dispose of motions for new trials, and all applications for writs which are usually granted, in

the first instance, upon ex parte application, and may also, in their discretion, hear and

determine applications to discharge such orders and writs. They may also hear and determine

applications for writs of assistance at chambers.”

“§8469. The district judges of the State of Nevada shall possess equal coextensive and

concurrent jurisdiction and power. They shall each have power to hold court in any county of

this state. They shall each exercise and perform the powers, duties and functions of the court,

and of judges thereof, and of judges at chambers. The decision in an action or proceeding may

be written or signed at any place in the state, by the judge who acted on the trial and may beforwarded to, and filed by the clerk, who shall thereupon enter judgment as directed to in the

decision, judgment may be rendered in open court, and, if so rendered, shall be entered by the

clerk accordingly. If the public business requires, each judge may try causes and transact

judicial business in the same county at the same time. Each judge shall have power to transact

business which may be done in chambers at any point within the state, and court shall be held

in each county at least once in every six months, and as often and as long as the business of

the county requires. All of this section is subject to the provision that each judge may direct



and control the business in his own district, and shall see that it is properly performed.”

“§8910. Motions and orders which may be made at chambers may be made in any part of

the state.”


In the case of Twaddle v. Winters, 29 Nev. 88, 85 P. 280, 282, 89 P. 289, it appears that

Judge Murphy of the First judicial district court was called in by Judge Curler to try a case at

Reno, which was within the Second judicial district. After trial and judgement, Judge

Murphy, at Carson City, which was within his own district, by an ex parte order, made

without affidavit of Judge Curler's absence or inability, granted defendants until a certain time

within which to prepare, file, and serve their notice and statement on motion for new trial. It

was contended on appeal that said order was void. The court in discussing this question said:

“Orders extending the time for filings are business usually or properly transacted in chambers,

and under section 2573 can and ought to be made as effectually in any part of the state, by the judge having the case in charge, as if made by him in chambers or in open court.” Section

2573, mentioned in the sentence last quoted, is the same as section 8469 N. C. L. supra.

2. Under the statutes of this state we are impelled to hold that Judge Walsh has jurisdiction

to hear the motion for new trial at his chambers in Goldfield.

We have not overlooked the argument of petitioner based upon that provision of section

8877 which provides that: “Reference may be had in all cases to the pleadings and the orders

of the court, and, when the motion is made on the minutes, reference may also be had to the

depositions, documentary evidence, and the stenographic notes or report of the testimony and

the records of the court.” (The last-quoted provision has been carried over into the 1935 new

trials and appeals act, Statutes of 1935, c. 90, sec. 3, at pages 195, 196.) In view of said

provision, it is plain that it would be easy to abuse the power to hear a motion for new trial ina county other than that in which a trial was held, because in some cases the inconvenience

and expense attendant upon such a course would be very considerable to say the least. It is not

to be presumed, however, that district judges will arbitrarily abuse their powers in thisUHVSHFW


respect. In the majority of states it is our understanding that motions for new trial can be

heard only in the county where the trial was held. It is for the legislative department todetermine whether it would be better that such a rule should obtain in Nevada. In Idaho,

unless there has been a recent change, the statute expressly provides that: “The motion for a

new trial may be brought to a hearing before the judge who tried or heard the case, at

chambers, or in open court, in any county of the state.” Code 1932, sec 7-609. This statute is

mentioned in note 13, on page 8131 of vol. VII, Bancroft's Code Practice and Remedies. The

text, however, at pages 8130, 8131, says that generally a motion for a new trial must be heard



and decided in open court in the county where the case was tried. An interesting case upon

the question now under discussion is Grayson v. Perryman, 25 Okl. 339, 106 P. 954. While

we hold in this case that Judge Walsh has jurisdiction to hear the motion for new trial at

Goldfield, we are not to be understood as deciding that district judges are required in such

situation as to hear motions for new trial or other chambers business in a county other than

that in which the business arises or is pending, simply because one of the parties notices sucha matter to be heard in such other county. So long as our statutes remain as they are, it is to be

presumed that district judges will have a proper regard for the convenience of litigants.

We are also of opinion that Judge Walsh has jurisdiction to hear the motion to retax costs

in his chambers in Goldfield. It is true that section 8385 N. C. L. does not, expressly or by

implication, empower a district judge to hear, at chambers, a motion to retax costs; and this

court has held in Kline v. Vansickle, 47 Nev. 139, 217 P. 585, 586, that said section

“definitely fixes the authority of the judge at chambers, and he can have no greater authority

than thus conferred.” There is, however, in section 8934 N. C. L. the following provision

relating specially to motions to retax and settle costs: “Upon the hearing of the motion the

court or judge in chambers shall settle the costs.”


3, 4. Petitioner makes the further claim that neither the motion for new trial nor that to

retax costs can be heard by Judge Walsh, pursuant to the notice served by defendant in the

lower court, because the notice so served was only an 8-day one and not a 10-day notice as

required by section 8911 N. C. L. It is our opinion that section 8911 N. C. L. is not

applicable, in view of the provisions of section 8877. N. C. L. relating specially to motions

for new trial, and section 8934 N. C. L. relating specially to motions to retax costs.

5. Petitioner claims that the district court was without power or jurisdiction to try the caseon its merits on June 17, because (a) no notice of the setting of the trial for hearing on the

merits was ever given; (b) two motions by defendant had been regularly noticed for hearing,

but had not been heard or disposed of; (c) defendant had not waived a jury trial. These

matters will no doubt be urged on the hearing of the motion for new trial; in our opinion it

would not be proper for us to decide them in the present proceeding in this court.

The petition for writ of prohibition is denied and the alternative writ dismissed.

____________

ÐÐÐÐ56 Nev. 313, 313 (1935) Covington v. District CourtÐÐÐÐ

COVINGTON v. SECOND JUDICIAL DISTRICT

COURT, in and for Washoe County, Et Al.

No. 3132

October 25, 1935. 50 P. (2d) 517.



1. Certiorari.In certiorari proceeding to review trial court's refusal to quash service of summons on husband in

divorce case, supreme court cannot weigh evidence or pass upon credibility of witnesses.

2. Divorce.If there is any evidence tending to prove fact on which jurisdiction of lower court depended, on

motion to dismiss service of summons in divorce case, trial court, having determined that fact, had

jurisdiction.

3. Certiorari.Certiorari held not to lie to review trial court's action in refusing to quash service of summon's on

husband in divorce case where conflicting evidence supported trial court's orders.

Original proceeding in certiorari by William Comer Covington against the Second Judicial

District Court of the State of Nevada, in and for the County of Washoe, and Hon. Thomas F.

Moran, Presiding Judge, Department No. 1. Writ dismissed.

Hawkins, Mayotte & Hawkins, for Petitioner:

In making the order requiring the defendant to plead to the complaint within twenty days

from the date of the order, and in setting plaintiff's motion for alimony pendente lite and

counsel fees for hearing, the respondent district court exceeded its jurisdiction; also, in

denying defendant's motion, made upon special appearance, to quash service of the summons

issued in said action, the respondent court was in error, and by such error attempted to invest

itself with jurisdiction of the defendant, which may not be legally done. Pacific States Sec.

Co. v. District Court, 48 Nev. 53, 226 P. 1106; Floyd v. District Court, 36 Nev. 349, 135 P.

922; State ex rel. Nevada Douglass Gold Mines, Inc. v. District Court, 51 Nev. 206, 273 P.

659; Electrical Products Corp. v. District Court, 55 Nev. 8, 23 P. (2d) 501.

The evidence will be reviewed as far as it relates to the jurisdiction of the lower court.

Standard Proc., YRO


vol. 4, p. 946; McClatchey v. Superior Court (Cal.), 51 P. 696; Schwarz v. Superior Court

(Cal.), 43 P. 580; 4 Enc. Pl. & Prac. p. 262; Stumpf v. Board of Sup'rs. (Cal.), 63 P. 663.

Thatcher & Woodburn, for Respondents:

The rule is that the weight or sufficiency of the evidence as to the facts upon which the

determination in the court below was based will not be considered in certiorari proceedings if there is any evidence to support the findings, nor will the credibility of the witnesses be

inquired into by the reviewing court. Carver v. Chapell, 37 N. W. 879; 11 C. J. 204.

The examination of the evidence is not for the purpose of determining whether the

preponderance thereof is on one side or the other, but to determine whether there is any

evidence which will justify the judgment. Salt Lake, etc. Co. v. Salt Lake City, 67 P. 791.

A finding of fact will not be disturbed, although the supreme court may be of the opinion

that the inferior tribunal did not give true weight to the testimony. People v. McClave, 15 N.



Y. S. 221; Hanna v. Russell, 12 Minn. 80; People v. N. Y. Fire Com'rs. 82 N. Y. 358; Dryden

v. Swinburne, 20 W. Va. 89.

OPINION

By the Court, Ducker, C. J.:In obedience to a writ of certiorari issuing out of this court, there has been certified up the

record and proceedings of the district court in an action for divorce wherein Jean Covington

is plaintiff and petitioner is defendant.

It appears therefrom that a special appearance was made by petitioner on a motion to quash

and set aside the service of summons, and that a motion was noticed by plaintiff for alimony

pendente lite, and counsel fees. At the time for hearing the same the court concluded to hear

the motion to quash in advance. Pursuant WKHUHWRWKHDIILGDYLWRISHWLWLRQHUPDGHLQV XSSRUW RIKLVPRWLRQZDVUHDGLQHYLGHQFHDQGWKHSODLQWLIIZDVFDOOHGDVDQDGYHUVHZLWQHVVE\

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thereto the affidavit of petitioner made in support of his motion was read in evidence, and the

plaintiff was called as an adverse witness by petitioner and examined in cross-examination.

When petitioner had concluded, plaintiff's counter affidavit was read in evidence and the

matter submitted for decision. Whereupon the court made an order denying petitioner's

motion, and ordered that he be given twenty days in which to plead. A further order was made

setting for hearing plaintiff's motion for alimony pendente lite, and counsel fees.

Service of summons was made upon petitioner at the airport near Reno, in Washoe

County, Nevada where he had come by airplane from the east.Want of jurisdiction of the person of the petitioner is predicated upon the claim that

petitioner, being without this state, to wit, in the State of New York, was willfully deceived

and enticed into this state and jurisdiction of the court by plaintiff for the purpose of effecting

service of summons upon him. Hence petitioner's conclusion that the orders were null and

void. Whether such deception and enticement were practiced by plaintiff was the issue heard

and determined adversely to petitioner by the trial court on the hearing of the motion to quash

the service of summons.

1, 2. If we understand petitioner's position aright, we may review and weigh the evidence,

and if we feel that petitioner should be believed rather than plaintiff, may substitute our

conclusion for that of the trial court. We are certain that we cannot weigh the evidence or pass

upon the credibility of witnesses. If we may review the sufficiency of the evidence, and

concerning this we need not express an opinion, our examination must be directed solely to

determining whether, from the competent evidence before it, the decision of the lower court

upon the question of its jurisdiction is sustainable. If so, its decision cannot be set aside in

this proceeding. If there is any evidence, that is, substantial legal evidence, tending to prove

the fact on which the jurisdiction of the lower court depends, we must KROGWKDWWKHFRXUW

KDYLQJGHWHUPLQHGWKDWIDFWKDGMXULVGLFWLRQ




hold that the court, having determined that fact, had jurisdiction. People v. Board of Police,

69 N. Y. 408; Bergevin v. Wood, 11 Cal. App. 643, 105 P. 935; Stumpf v. Board of Supervisors, 131 Cal. 364, 63 P. 663, 82 Am. St. Rep. 350; Jackson v. People, 9 Mich. 111,

77 Am. Dec. 491; 2 Spelling Extraordinary Relief, secs. 1949, 2019, 2023; 5 R. C. L. p. 251;

82 Am. St. Rep. page 355, note.

Petitioner refers to 11 C. J. sec. 367, as authority for his contention. We see nothing in that

text which runs counter to the rule we have expressed, nor in the decisions cited in the note.

On the contrary, Stumpf v. Board of Supervisors, supra, explicitly supports that rule. And in

the Golden Gate Tile Co. v. California Superior Court, 159 Cal. 474, 114 P. 978, 980, also

cited in the note, the court, quoting approvingly, said: “If an inferior court should make a

finding in favor of its jurisdiction, basing the finding on conflicting evidence, it must be

conceded that such a determination would be conclusive upon this court; but where there isno conflict in the evidence, thus presenting a clear question of law only, and an inferior court

holds that it has jurisdiction when under the uncontradicted evidence it has not, then its

judgment may be annulled on writ of review.”

In Regina v. Green, 12 Ont. Pr. 373, also cited in the note in support of the text, a

summary conviction was had before a police magistrate. The information, evidence, and

conviction had been removed into the Queen's Bench Division by certiorari. The court held:

“* * * If any fact found by the magistrate is disputed, and he would have no jurisdiction had

he not found that fact, then the evidence may be looked at to see whether there was anything

to support his finding upon it.”

The Nevada cases cited in the note and by petitioner in his brief do not support his

contention. State v. Humboldt County Com'rs., 6 Nev. 100, cited, is squarely against it. InFloyd v. District Court, 36 Nev. 349, 135 P. 922, 4 A. L. R. 646, relied upon by petitioner, no

disputed question of fact was involved, but merely DTXHVWLRQRIODZZKLFKWKHORZHUFRXUW

GHFLGHGHUURQHRXVO\LQGLYHVWLQJLWVHOIRIMXULVGLFWLRQ


a question of law, which the lower court decided erroneously in divesting itself of

jurisdiction. The decision in Floyd v. District Court would be analogous if in the instant case

the lower court had decided in favor of its jurisdiction in the absence of evidence as to thatfact so complete that the question became one of law. If we have misconceived petitioner's

contention, as we have stated it above, then it cannot be else than that plaintiff's evidence

furnished by her affidavit and cross-examination is so weak and inconclusive as to present no

real conflict.

We perceive no useful purpose in setting out in detail the evidence furnished by the

opposing affidavits and plaintiff's cross-examination. Much of it is immaterial. Suffice it to



say, it appears that the parties were married in Reno, Washoe County, Nevada, on August 12,

1934, and went to live in the State of North Carolina. On or about May 30, 1935, they

returned to Reno and soon afterwards removed to Lake Tahoe for a short time. During their

stay there differences arose, and plaintiff went to the home of her parents in Reno. Petitioner

went to the Riverside hotel in that city and shortly afterwards departed for North Carolina. He

asked plaintiff to go with him, but she refused.On his trip south, at divers places along the route and at Washington, D. C. on the way

from North Carolina to New York City, and at the latter place, he communicated with

plaintiff at Reno by telephone, and talked with her about their differences. He states in his

affidavit that in the conversations which ensued upon his telephoning her from Denver City

on his way south, it was agreed that she would come and live with him in New York City or

vicinity, and would meet him in that city early in September; that she then said it was too hot

at that time to live in New York City, and requested him instead of going on south to return to

her in Reno, and that they would spend the intervening time in that city; that in nearly all of

said conversations she suggested, requested, and invited affiant to return to Reno and spend

the intervening time XQWLO6HSWHPEHUZLWKKHULQ5HQRWKDWRQKLVDUULYDOLQ1HZ<RUN&LW\

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until September with her in Reno; that on his arrival in New York City on or about the night

of July 13 and again on the evening of July 14, he called her at the telephone and in their

conversations she requested him to return to Reno at once and stay until fall, when they

would go back to New York City; that if he would come back she would meet him at the

airport and go to the Riverside hotel in Reno and everything would be all right; that in the

latter conversation he told her he did not know whether he would return to Reno or not, and

asked her if she contemplated any legal proceedings against him in the event he returned; that

she told him, no, nothing of the kind, and for him to come on back and she would meet him

and everything would be all right; that she had no purpose or plan of suing him or starting any

legal proceedings. He alleges that he returned, relying upon her promises, and but for such

promises and inducements would not have returned to the State of Nevada.

Plaintiff, in her counter affidavit and in her cross-examination, states that she never agreed

that she would go to New York City to live; that she never in any of the conversations stated

to petitioner that no suits or actions would be brought; that she never at any time suggested or

requested that he return to Reno, and that she believes he returned for the purpose of effecting

a reconciliation.



It will be observed from the foregoing summary that the trial court's order refusing to

quash the service of summons was made upon conflicting evidence. This becomes more

apparent from the fact that she was before the court and subject to cross-examination, while

petitioner was not available as a witness, although a subpena had been issued for him and

counsel for plaintiff made repeated demands that he appear for cross-examination on his

affidavit. The court, in its oral remarks in making the order, said: “She is before the Court. Ihad the opportunity of seeing her, and if she tells an untruth, I am deceived. I do not believe

she does, though she might have been HYDVLYHLQVRPHWKLQJVEXW,GRQRWEHOLHYHVKHWHOOV

DQXQWUXWK´


evasive in some things, but I do not believe she tells an untruth.”

3. As the evidence before the court below supports its orders, the writ of certiorari must be

dismissed.It is so ordered.

____________

ÐÐÐÐ56 Nev. 319, 319 (1935) Engleman v. Royal Insurance Co.ÐÐÐÐ

ENGLEMAN v. ROYAL INSURANCE COMPANY,

Limited, of Liverpool, England

No. 3102

November 5, 1935. 51 P. (2d) 417.

1. Insurance.Failure of insured to furnish proofs of loss of personal property by fire as required by fire policy held

to preclude recovery on policy, notwithstanding insured had seven days after fire executed assignment of

policy and interest in sums due thereunder to another who had furnished proofs, where it was not

impossible for insured to have complied with stipulation, and assignee had been notified that any

adjustment of loss would have to be made with insured.

2. Appeal and Error.Assignments of error in appellant's opening brief which had not been urged would be disregarded.


Action by M. W. Engleman against the Royal Insurance Company, Limited, of Liverpool,

England. From a judgment for defendant and an order denying a new trial, plaintiff appeals.

Affirmed.

Harold M. Morse and C. D. Breeze, for Appellant:



The plaintiff, as assignee of the insured, was his legal representative, and the insurance

contract expressly provides that a proof of loss may be made by the legal representative of the

insured. The testimony clearly shows that the insured left Las Vegas within a few days after

the fire; that he then started east and traveled as far as Florida, and from there to New York;

that plaintiff wrote to the insured at Tallahassee, Florida, on February 13, but his letter was

returned and received by (QJOHPDQR Q0DUFKIURPZKLFKLWREYLRXVO\WKHQEHFDPH FHUWDLQWKDW(QJOHPDQZRXOGQRWEHDEOHWRJHWDSURRIRIORVVIURPLQVXUHGLQWLPHDVWKH VL[W\GD\OLPLWIL[HGE\WKHSROLF\ZRXOGH[SLUHRQ0DUFK(QJOHPDQWKHUHXSRQPDGH

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Engleman on March 13, from which it obviously then became certain that Engleman would

not be able to get a proof of loss from insured in time, as the sixty-day limit fixed by the

policy would expire on March 16, Engleman thereupon made the proof of loss himself, and

mailed it to defendant on that day. That the proof of loss furnished substantially complieswith the requirements of the policy has been held sufficient in many cases. The general rule is

well settled that substantial compliance with the requirements of the policy as to proof is all

that is necessary. 26 C. J. 376; Bingell v. Royal Ins. Co., 87 Atl. 955; McNally v. Phoenix

Ins. Co. (N. Y.), 33 N. E. 475; Ins. Co. v. Atkins (Ky.), 96 Am. Dec. 239; Prudential Ins. Co.

v. Alley (Va.), 51 S. E. 812; Schelansky v. Fire Ins. Co. (Dela.), 55 Atl. 1014.

In fact, it is held that where reference is made in the proof of loss to a schedule of property

on file in insured's office, a copy of which, itemized and valued, has been delivered to the

adjuster, it is a substantial compliance with the policy. Pierce v. Ins. Co. (Pa.), 65 Atl. 663;

Young v. Ins. Co. (Mich.), 52 N. W. 454.

Thornton, Menzies & Penney and Henderson & Marshall, for Respondent:

We contend that had the assured acted in good faith, the proof of loss required by the

provision of the policy would have been made prior to his departure from Los Angeles, which

is alleged to have occurred fourteen days after the fire occurred. It will be noted, too, that he

was in Los Angles for one week after giving an assignment to the plaintiff. McGraw v.

Germania Fire Ins. Co. (Mich.), 19 N. W. 927.

We desire to call attention to the position taken by the insurance company at the earliest

possible time. This appears from plaintiff's exhibit 8, which is a letter addressed to the Los

Angeles Wholesalers' Board of Trade, signed by O. J. Rea, general adjuster for defendant

company, wherein the plaintiff and the Los Angeles Wholesalers' Board of Trade were

notified that ³DQ\DGMXVWPHQWLQFRQQHFWLRQZLWKWKLVORVVPXVWEHPDGHZLWK0U


“any adjustment in connection with this loss must be made with Mr. Goldberg, the insured

under our policy at the time of the fire.” In other words, it refused and declined to



acknowledge any assignment made after loss. This letter was sufficient to put plaintiff on

notice that a strict compliance with the terms of the contract would be required. Peninsula

Land & Transportation Co. v. Franklin Fire Ins. Co., 14 S. E. 237; St. Paul Fire & Marine Ins.

Co. v. Mittendorf, 105 P. 354; Burlington Ins. Co. v. Ross (Kans.), 29 P. 469; Ward v.

National Fire Ins. Co. (Wash.), 38 P. 1127; 7 Couch on Insurance, sec. 1513, pp. 5394, 5399,

5413, 5496.

OPINION


This is an action on an insurance policy, brought by the plaintiff as assignee of the insured,

to recover the sum of $2,000 damages caused by fire. The property insured, certain goods,

wares, and merchandise, consisted chiefly of pawnbroker's stock, business furniture, fixtures,

and equipment, situated in a certain building in the city of Las Vegas. The fire occurred

January 16, 1933, and it is alleged that said personal property described in the policy of

insurance was destroyed. Compliance by the insured subsequent to the fire with each and

every condition on his part to be performed, as provided for in the policy, is alleged.The defense is based on several clauses of the policy. The court found in favor thereof and

rendered judgment for defendant. This appeal is from the judgment and order denying a new

trial.

The first clause of the policy involved, so far as its terms are material here, reads: “If fire

occur the insured shall give immediate notice of any loss thereby in writing to this company;

protect the property from further damage, forthwith separate the damaged and undamaged

personal property, put it in the best possible order; make a complete inventory of the same,VWDWLQJWKHTXDQWLW\DQGFRVWRIHDFKDUWLFOHDQGWKHDPRXQWFODLPHGWKHUHRQDQGZLWKLQ VL[W\GD\VDIWHUWKHILUHXQOHVVVXFKWLPHLVH[WHQGHGLQZULWLQJE\WKLVFRPSDQ\VKDOO UHQGHUDVWDWHPHQWWRWKLVFRPSDQ\VLJQHGDQGVZRUQWRE\VDLGLQVXUHGVWDWLQJWKH

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stating the quantity and cost of each article and the amount claimed thereon; and, within sixty

days after the fire, unless such time is extended in writing by this company, shall render a

statement to this company, signed and sworn to by said insured, stating the knowledge andbelief of the insured as to the time and origin of the fire; the interest of the insured and of all

others in the property; the cash value of each item thereof and the amount of loss thereon; all

other insurance, whether valid or not, covering any of said property. * * *”

The second and third clauses involved, read:

“This company shall not be held to have waived any provision or condition of this policy

or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the

appraisal or to any examination herein provided for; and the loss shall not become payable



until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss

herein required have been received by this company, including an award by appraisers when

appraisals have been required.”

“No suit or action on this policy for the recovery of any claim, shall be sustainable in any

court of law or equity until after full compliance by the insured with all the foregoing

requirements, nor unless commenced within 12 months after the fire.”The main question presented for determination is whether the judgment finds support in

the evidence. Plaintiff contends that it does not (1) because full compliance with the terms

and conditions of the policy was shown, and (2) because of waiver on the part of the

defendant.

1. We are satisfied that the evidence, under the applicable rules of law, justified the trial

court in finding for the defendant.

Seven days after the fire the insured executed a written assignment of the policy and his

interest in all sums of money due him, or to become due him, from the defendant to plaintiff

Engleman. On the WKRI0DUFKSODLQWLIIUHQGHUHGWRWKHGHIHQGDQWDZULWWHQ

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13th of March, 1933, plaintiff rendered to the defendant a written statement sworn to by him

purporting to be a proof of loss. No proof of loss was ever made by insured, which, as noted,

is required by a clause of the policy. Where the requirement in the policy is that insured

furnish proofs of loss, he must comply therewith in order to recover on the policy. This is the

rule in general, subject to a number of exceptions. It is stated in 26 C. J. 367: “However, it is

a usual requirement of the policy that insured give notice and furnish proofs of loss, and

compliance therewith is necessary to enable him to recover on the policy, unless the insurerhas waived or become estopped to assert the condition, or unless the circumstances are such

as to excuse insured's noncompliance therewith.”

In McGraw v. Germania Fire Ins. Co., 54 Mich. 145, 19 N. W. 927, 931, a leading case,

the rule and some of its exceptions are thus stated:

“Under the policy in question, proofs of loss required by its terms is a condition precedent

to a right of recovery; and in general they are to be signed and sworn to by the assured in

person. But the clause in question is subject to exceptions; as where the owner is a

nonresident, dead, or was insane or absent at the time when the loss occurred, and did not

return in season to make the proofs, or that he did not possess the necessary information in

reference to the matters required to be stated to make proofs, or that the objection as to theirbeing made by the wrong person has been waived. See Wood, Ins., sec. 413. But where the

assured can himself make the necessary proofs he should do so, or give a sufficient excuse for

his failure; and ordinarily (though this is not essential) the reasons why the proofs were not

made by the assured should be stated in the proofs of loss.”

“As a general rule, subject to the exceptions hereafter noted, the proofs of loss should be

furnished by the original insured, where the policy so required. The contract of insurance is

made with him, and where the company issues to a person a policy which stipulates WKDWWKH



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that the insured shall, in case of loss, make affidavit of that loss and of certain facts

concerning it, the company has the right to insist that the oath, which under the conditions of

the contract is obligatory upon him to take, he shall in fact take, in those cases where the

insurer has dealt personally with the insured.” 7 Couch, Encyclopedia of Insurance, sec. 1521,

p. 5413; 5 Joyce on Insurance (2d ed.), sec. 3302.

The decisions of state courts are in conflict on the question whether a failure by the

insured to make proofs of loss within a stipulated time will bar a recovery. But there is no

dissent from the rule that the insured must furnish proofs of loss where it is so stipulated,

unless the insurer has waived the condition, or the case falls within some recognizedexceptions. The reasons for the rule are well stated in Ostrander's Law of Fire Insurance,

pages 288, 289:

“When, however, the policy particularly designates that proofs must be made by the person

originally insured, unless the property covered has been sold and the policy assigned by the

consent of the company, proofs cannot be made (in compliance with the terms of the policy),

except by the person to whom the policy was issued.

“If it is important to the underwriter that it may know the person it insures, so it is

important that it may have an option in selecting the person with whom it will adjust claims

for loss. Moral and business character are qualities of the highest consideration in either

relation. Many fires result from fraud, and there has been a large number from purelyaccidental causes where the claimant for loss has resorted to schemes of deception and fraud

in presenting his proofs, stimulated with the hope of securing an adjustment by the

computation of quantities or values on a fictitious basis. The insured, the owner of the

property damaged or destroyed is the person with whom the insurer is dealing, and it has a

right to receive his sworn declarations to traverse his statements and to challenge his good

faith, when warranted in doing so. This KDVEHHQFOHDUO\SURYLGHGIRULQWKHSROLF\DQGWR VXEVWLWXWHDVVXIILFLHQWWKHHVWLPDWHVDQGGHFODUDWLRQVRIDQRWKHUFRQWHPSODWHVFKDQJHV VRUDGLFDODQGLPSRUWDQWLQWKHSHUIRUPDQFHRIFRQWUDFWREOLJDWLRQVDVWRLPSO\DQ

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has been clearly provided for in the policy, and to substitute as sufficient the estimates and

declarations of another contemplates changes so radical and important in the performance of

contract obligations as to imply an abandonment of the original intention of the parties. A

contract of insurance is nowhere more personal than in respect to its provisions concerning



the adjustment of claims. The insured must present his claim under oath; he must produce a

magistrate's certificate as to his good faith, and if required must submit to a sworn

examination. Each of these matters relates to the person of the insured, and the importance of

this requirement is too obvious to require argument. The person insured may be fairly

presumed to be in possession of the largest number of facts and the most reliable information

in regard to the circumstances of the fire and the extent of the loss, and if there be a fraudsuspected, the insurer cannot be denied the right which he has stipulated for, to meet face to

face the one who alone would have a motive for the perpetration of a crime. To excuse,

therefore, the insured, who may have secreted himself to avoid arrest, and compel the insurer

to accept proofs and adjust the loss with one who may know nothing of the cause of the fire,

and who in preparation of the proofs is acting under but little of the responsibility which

would rest upon the insured in performing the same duty, would be a gross perversion of

justice and the setting aside of their plain contract obligations.” See, also, Vance on

Insurance, pp. 778, 779; German Fire Ins. Co. v. Grunert, 112 Ill. 68, 1 N. E. 113.

As no proof of loss was furnished by the insured, Goldberg, the next inquiry is, Does the

evidence bring the case within any exception excusing him therefrom? We do not think it

does. The evidence discloses that it was not impossible for insured to have complied with thestipulation, and that he was not absent when the loss occurred. That condition and that

contingency have been held to be exceptions to the general rule. The insured was in Las

Vegas at the time the fire RFFXUUHG


occurred. Two days later an adjuster for the defendant, one Dunbar, came from Los Angeles

to Las Vegas to investigate the fire and make a report. He directed the insured to make an

inventory of the property in the store, which was done. The inventory was given to Dunbar.He remained in Las Vegas until the night of the 19th of January, and then returned to Los

Angeles. A day or two later the insured left Las Vegas, going to Los Angeles, where he

executed the assignment on January 23, 1933. He left Los Angeles a day or two afterwards.

Plaintiff later received a letter from him dated January 30, 1933, at El Centro, Calif., and

received another letter from him dated February 8th, at Houston, Tex., in which he told

plaintiff that if he wished to communicate with him in the the next five or six days to address

him at Tallahassee, Fla. On the 13th of February, plaintiff addressed a letter to him at

Tallahassee, Fla., in which he said: “We have declined to accept the general assignment for

the benefit of creditors because our adjuster found upon arrival at Las Vegas that the value of

the assets remaining in the store were not sufficient to justify handling the assignment.Outside the stock of ammunition, practically the only assets of value consisted of the property

which was found in the safe, for which we received an offer of $75.00. The situation would

indicate that a substantial quantity of assets must have been removed from the premises

sometime between the date of the investigation and the date of the arrival of our adjuster. The

creditors are anxious to meet with you and we ask that you let us know by return mail just

when you expect to be in Los Angeles so that we may arrange for a meeting of creditors.”

Plaintiff received no other letter from the insured prior to March 16, 1933. It thus appears that



after the fire and the investigation by the adjuster the insured voluntarily absented himself

from Las Vegas, and after the assignment, from Los Angeles, which was the home of the

defendant. No good reason appears why, if it was imperative for him to OHDYHKHFRXOGQRW KDYHPDGHWKHSURRIVRIORVVEHIRUHGHSDUWLQJRUKDYHPDGHVXFKSURRIVWKHUHDIWHU


leave he could not have made the proofs of loss before departing, or have made such proofs

thereafter. He was familiar with the matters necessary to be incorporated in such proof. It is

contended that plaintiff tried to get insured to make proofs of loss. We find no evidence of it.

In his letter to defendant at Tallahassee no mention is made of any such desire.

It is contended by plaintiff that he was unable to make the proofs because, as testified to by

two of his witnesses, Dunbar, on leaving Las Vegas after the investigation, took with him the

stock book and the invoices from which the inventory was made. This is denied by the latter,

and we cannot substitute our judgment for the trial court on conflicting evidence. OneGolden, a relative of the insured who was employed by him and who was working for him

when the fire occurred, testified that the latter was called to Miami, Fla., on account of the

illness of his mother who was in a hospital at that place. This is advanced as a reason for his

departure and for not making the proofs. This may be a sufficient reason for his leaving, but it

is no reason for his not performing a duty cast upon him by the law. It appears, however, that

if he and Golden, who accompanied him on his travels, were on their way to the bedside of a

sick relative, they proceeded in a most leisurely manner, and were not averse to doing

business on the road. According to plaintiff's testimony, the insured left Los Angeles on the

24th or 25th of January. By his letter to plaintiff of date February 8, it appears that he was in

Houston, Tex., fourteen days later. In this letter he stated: “At present I am following up

small business leads. Trying to buy and sell as I go along.” In neither of his letters to plaintiff did he mention that he had been called away on account of his mother's illness.

The evidence discloses no exception to the general rule that we are aware of, under which

the insured was excused from complying with the condition of the policy as to making proofs

of loss. The fact of assignment does not work such an exception. The plaintiff ZDVJLYHQ WLPHO\ZULWWHQQRWLFHE\WKHGHIHQGDQWDIWHULWKDGEHHQDSSULVHGRIWKHDVVLJQPHQWWKDW DQ\DGMXVWPHQWRIORVVPXVWEHPDGHZLWKWKHLQVXUHGEXWZLWKRXWVXFKQRWLFHWKH DVVLJQPHQWZR XOGQRWUHOLHYHWKHLQVXUHGIURPFRPSO\LQJZLWKWKHFRQGLWLRQVLQWKHSROLF\

WRIXUQLVKSURRIVRIORVV


was given timely written notice by the defendant, after it had been apprised of the assignment,

that any adjustment of loss must be made with the insured; but without such notice the

assignment would not relieve the insured from complying with the conditions in the policy to

furnish proofs of loss.

As stated in Joyce on Insurance (2d ed.), vol. 4, sec. 2322: “After a loss has occurred the



right of the assured to the indemnity becomes a fixed and vested right. It is an obligation debt

due from the company to the assured, and as such is assignable, and is not within the clause

requiring notice of the assignment of the policy to be given to the company. It is, however,

subject to such claims, demands, or defenses as the insurer would be entitled to make against

the original insured.”

We have given due attention to the authorities cited by plaintiff in support of hiscontention that plaintiff was authorized to furnish proofs of loss under the facts of this case.

Plaintiff refers to 14 R. C. L. 1336, wherein it is said, “Proofs of loss may be made by an

agent where the insured is not in a position to make them,” and to Lumbermen's Mut. Ins. Co.

v. Bell, 166 Ill. 400, 45 N. E. 130, 57 Am. St. Rep. 140, in note 5, in support of the text.

As we have pointed out, the evidence shows that the insured was in a position to make the

proofs. So the statement of the text does not apply to the facts of this case. In Lumbermen's

Mut. Ins. Co. v. Bell, supra, cited in the note as authority for the statement in R. C. L., supra,

it appears that the insured was absent at the time of the loss, and did not return in time to

make the proofs. The point in that case was decided upon the authority of German Fire Ins.

Co. v. Grunert, 112 Ill. 68, 1 N. E. 113, wherein it was held that the general agent of the

insured was authorized to make proofs of loss; the insured being absent at the time of theloss. All the cases cited by appellants are distinguishable on the facts from the instant case. In

Brunswick-Balke-Collender Co. v. Northern Assur. Co., 142 Mich.


29, 105 N. W. 76, the plaintiff was a nonresident. In Scott v. American Ins. Co., 222 S. W.

(Mo. App.) 1047, waiver was established. In Evans v. Crawford County Farmers' Mut. F. Ins.Co., 130 Wis. 189, 109 N. W. 952, 9 L. R. A. (N. S.) 485, 118 Am. St. Rep. 1009, the

plaintiff was absent from home and did not know of the fire till long after the time required

for making proofs of loss. The wife was left in charge of the property, and it was held that

under such circumstances the wife could make the proofs of loss by implied authority of her

husband, as an agent ex necessitate. It will be seen that that case bears no resemblance to the

case at bar. In Findeisen v. Metropole F. Insurance Co., 57 Vt. 520, it was held that, under the

particular circumstances of that case, the husband, as the agent of the wife, could make the

proofs of loss; he having transacted all the business connected with the purchase and

management of the insured property, and having procured the insurance, and the wife having

no personal knowledge as to the property. Moreover, the policy contained the followingprovision: “It is a part of this contract that any person other than the assured, who may have

procured this insurance to be taken by this company, shall be deemed to be the agent of the

assured.”

This case bears no resemblance to the case before us.

Appellant refers us to the case of Clark v. London Assurance Corporation, 44 Nev. 359,

195 P. 809, as authority for his position. It is not in point. The question determined in that

case was that the failure to make proof of loss within the 60-day period of limitation in the



policy did not bar a recovery in the absence of a provision in the policy that such failure

would work a forfeiture. The proof of loss was made after the 60-day period. In the case

under consideration there was not even a substantial compliance with the condition. The

insured made no proof of loss within the 60-day period or at all.

We also reach the conclusion that the evidence supports the finding of the trial court that

there was no waiver on the part of defendant. As previously stated, WKHGHIHQGDQWJDYH SODLQWLIIWLPHO\ZULWWHQQRWLFHWKDWDQ\DGMXVWPHQWRIORVVPXVWEHPDGHZLWKWKHLQVXUHG


the defendant gave plaintiff timely written notice that any adjustment of loss must be made

with the insured.

On March 22, 1933, shortly after plaintiff had rendered to defendant a purported proof of

loss, he was notified in writing by the defendant and by Dunbar that the company did not

recognize him as having any right to represent the insured, and that it objected to such proof on the ground, among others, that that statement of proof was not signed and sworn to by the

insured, and that the company insisted upon a compliance with the terms and conditions of

the policy. A copy of defendant's letter to this effect was at the same time mailed to the

insured at Las Vegas, which, to the company, was his last known place of residence.

We deem it unnecessary to review the evidence which plaintiff claims establishes waiver.

To do so would serve no useful purpose and prolong this opinion. Suffice it to say that the

part Dunbar took in regard to the inventory had no such effect, and the statements attributed

to him which plaintiff claims had such tendency were denied by him.

2. There are several other assignments of error in plaintiff's opening brief. They have not

been urged and have therefore been disregarded. Smith v. Odd Fellows Bldg. Ass'n., 46 Nev.

48, 205 P. 796, 23 A. L. R. 38.The judgment and order denying a new trial should be affirmed.

It is so ordered.

____________

ÐÐÐÐ56 Nev. 331, 331 (1935) State ex rel. Germain v. District CourtÐÐÐÐ

STATE Ex Rel. GERMAIN, Public Administrator of Washoe County, v. SECOND

JUDICIAL DISTRICT COURT in and for Washoe County, Et Al.

No. 3128

November 5, 1935. 51 P. (2d) 219.

1. Judges.“Civil action” as used in statute providing for disqualification of judge for prejudice held not to



include probate proceeding or to authorize disqualification of judge in such proceeding (Comp. Laws,

secs. 8500, 8501, 8573, 8407, subd. 5; Const. art. 6, sec. 14).

“Civil action” is proceeding in court of justice in which one party, known as “plaintiff,”

demands against another party, known as “defendant,” enforcement or protection of private right,

or prevention or redress of private wrong.

2. Judges.

Bias or prejudice of judge would not, at common law, disqualify or incapacitate him to try case.

3. Judges.Statute making law regulating proceedings in civil cases applicable to matters of estate held not to

authorize disqualification of judge in probate proceeding for prejudice, since statute providing for such

disqualification was not provision of law regulating proceedings in civil cases (Comp. Laws, secs. 9881,

8407, subd. 5).

Original proceeding in mandamus by the State, on the relation of James Germain, Public

Administrator of Washoe County, against the Second Judicial District Court, in and for

Washoe County, and the Honorable B. F. Curler, Judge of Department No. 2 of such Court, to

require the Presiding Judge of the Court to transfer a probate proceeding to another Judge.

Petition for peremptory writ of mandamus denied, and alternative writ dismissed.

J. W. Dignan, for Petitioner:

The following are the code sections which may be considered applicable:

The general provisions for a change of venue (sec. 8572 N. C. L.).


The section in question in this proceeding (sec. 8407 N. C. L., as amended by Stats. 1931,

p. 247).There shall be but one form of action (sec. 8500 N. C. L.).

The district courts have jurisdiction in matter of probate (sec. 9600 N. C. L. ).

The provisions of the civil practice act are applicable in probate trials (sec. 9881 N. C. L.).

There are two sections of the probate code providing for the disqualification of the judge

(secs. 9383 and 9684).

The matter before the court in the case at bar has twice before been passed upon and

considered by this court. State ex rel. Beach v. Fifth Judicial Dist. Court, 53 Nev. 444, 5 P.

(2d) 535; State ex rel. Stokes v. Second Judicial Dist. Court, 55 Nev. 115, 27 P. (2d) 534.

Neither a “civil action” nor a “special proceeding” is defined in our statutes. The courts in

the states where there are no statutory definitions have given several definitions to the general

effect that a “civil action” is “the lawful demand of one's right in a court of justice.” 1 C. J.

924-5.

Ayres, Gardiner & Pike, Amici Curiae, for Respondent:

This petition is brought under sec. 8407 N. C. L., as amended, Stats. 1931, p. 247. Said

section is a portion of an act of the legislature entitled: “An act concerning the courts of

justice of this state and judicial officers.” The probate act does not adopt it as applicable to



probate proceedings. The only act which is made applicable to probate proceedings is the one

“regulating proceedings in civil cases” (sec. 9881 N. C. L.). The act regulating civil

proceedings begins with sec. 8500 N. C. L.

Under the reading of sec. 8407 N. C. L., as amended, Stats. 1931, p. 247, it unquestionably

relates to an action or proceeding, for it says at the beginning: “A judge shall not act as such

in an action or proceeding.” Reading in this way, the statute recognizes a distinction betweenactions and other proceedings, just as do other portions of our other sections of our statutes.

The legislature seems to have been particular, in DGRSWLQJWKHILIWKJURXQGRI GLVTXDOLILFDWLRQLQWRGUDZWKHGLVWLQFWLRQRIWKHLQVWDQFHVLQZKLFKLWLVWREH

DSSOLHGIURPWKRVHLQZKLFKWKHILUVWIRXUJURXQGVDUHWREHDSSOLHG


adopting the fifth ground of disqualification in 1931, to draw the distinction of the instances

in which it is to be applied, from those in which the first four grounds are to be applied. It

adds a complete new disqualification, to wit, that of bias. And it apparently takes particular

pains to state that it shall not apply as broadly as do the first four, in a proceeding as well as

an action, but applies particularly, exclusively and alone to civil actions in the district court.

Under the codes the term “civil action” is ordinarily used in contradistinction to special

proceedings. 1 C.J. 921, notes 26-31; 1 C.J., p. 1010, sec. 134.

OPINION


Original proceeding in mandamus.

In June, 1935, H. J. Gazin filed in department No. 2 of the Second judicial district court,Washoe County, a petition praying for the admission to probate of the will of Charles Wind,

and for the issuance of letters of administration with will annexed to said petitioner.

Subsequently James Germain, public administrator of Washoe County, filed written

opposition to the granting of said Gazin's petition, asserting his own right to the

administration of said estate, and praying that letters of administration with will annexed be

issued to himself. This paper was filed in accordance with section 9643 N. C. L., which

provides as follows: “Any person interested may contest the application by filing a written

opposition thereto, on the ground of the incompetency of the applicant, or may assert his own

right to the administration, and pray that letters be issued to himself.”

Section 9637 N. C. L. sets forth the order in which those competent to administer shall be

respectively entitled. The public administrator is ninth in order of preference; eleventh in

order comes “Any person or persons legally competent.” The public DGPLQLVWUDWRULQWKH FRXUWEHORZLVWKHSHWLWLRQHUIRUZULWRIPDQGDWHLQWKLVFRXUW




administrator in the court below is the petitioner for writ of mandate in this court. He

contends that said H. J. Gazin is simply a person legally competent; thus being eleventh in

order of preference. Mr. Gazin's petition in the lower court recites that Charles Wind died in

San Francisco, was a resident of that city, but left estate in the county of Washoe, State of

Nevada. The will offered for probate names testator's brother, Bernard E. Wind, as executor;

but he had predeceased testator, and Isidore Wind, testator's uncle, wrote a letter to Mr.Gazin, requesting the latter to act as administrator of said estate of Charles Wind, deceased.

After the filing of the Gazin petition in the court below and of the public administrator's

opposition thereto in said court, the attorney for the public administrator, under the provisions

of section 8407 N. C. L. (Stats. 1931, c. 153, sec. 1), filed an affidavit of bias or prejudice of

the presiding judge, accompanied by a demand that the matters above mentioned be

transferred to another judge. The presiding judge, Hon. B. F. Curler, declined to transfer said

matters as demanded, and the public administrator in the present proceeding prays that this

court require said presiding judge of the district court to make the transfer demanded.

Section 8407 N. C. L., as amended (Stats. 1931, c. 153, sec. 1), reads as follows: “A judge

shall not act as such in an action or proceeding: First, when he is a party or interested in the

action or proceeding. Second, when he is related to either party by consanguinity or affinitywithin the third degree. Third, when he has been attorney or counsel for either of the parties

in the action or proceeding. Fourth, when he is related to an attorney or counselor for either of

the parties by consanguinity or affinity within the fourth degree. Fifth, if either party to a civil

action in the district court or his or its attorney or agent shall file an affidavit alleging that the

affiant has cause to believe and does believe that on account of the bias or prejudice or

interest of said judge he cannot obtain a fair and LPSDUWLDOWULDOWKHVDLGMXGJHVKDOODWRQFH WUDQVIHUWKHDFWLRQWRVRPHRWKHUGHSDUWPHQWRIWKHFRXUWLIWKHUHEHPRUHWKDQRQH GHSDUWPHQWRIVDLGFRXUWLQVDLGGLVWULFWRUUHTXHVWW KHMXGJHRIVRPHRWKHUGLVWULFWFRXUW RIVRPHRWKHUGLVWULFWWRSUHVLGHDWWKHKHDULQJDQGWULDORIVXFKDFWLRQSURYLGHGWKH SDUW\ILOLQJVXFKDIILGDYLWIRUFKDQJHRIMXGJHVKDOODWWLPHRIILOLQJVDPHSD\WRWKHFOHUN

RIWKHFRXUWLQZKLFKVXFKDIILGDYL WLVILOHGWKHVXPRIWZHQW\ILYHGROODUVZKLFKVXPVKDOO EHE\WKHFOHUNWUDQVPLWWHGWRWKHVWDWHWUHDVXUHUZKRVKDOOSODFHWKHVDPHWRWKHFUHGLW RIWKHGLVWULFWMXGJHVWUDYHOLQJH[SHQVHIXQGSURYLGHGWKDWWKLVVHFWLRQVKDOOQRWDSSO\WR WKHDUUDQJHPHQWRIWKHFDOHQGDURUWKHUHJXODWLRQRIWKHRUGHURIEXVLQHVVDQGSURYLGHG IXUWKHUWKDWWKHIRXUWKVXEGLYLVLRQRIWKLVVHFWLRQVKDOOQRWDSSO\WRWKHSUHVHQWDWLRQRIH[ SDUWHRUXQFRQWHVWHGPDWWHUVH[FHSWLQIL[LQJIHHVIRUDWWRUQH\VUHODWHGZLWKLQW KHGHJUHH

RIFRQVDQJXLQLW\RUDIILQLW\WKHUHLQVSHFLILHG´


impartial trial, the said judge shall at once transfer the action to some other department of thecourt, if there be more than one department of said court in said district, or request the judge

of some other district court of some other district to preside at the hearing and trial of such

action; provided, the party filing such affidavit for change of judge shall at time of filing same

pay to the clerk of the court in which such affidavit is filed the sum of twenty-five dollars,

which sum shall be by the clerk transmitted to the state treasurer, who shall place the same to

the credit of the district judges' traveling expense fund; provided, that this section shall not

apply to the arrangement of the calendar, or the regulation of the order of business; and



provided further, that the fourth subdivision of this section shall not apply to the presentation

of ex parte or uncontested matters, except in fixing fees for attorneys related within the

degree of consanguinity or affinity therein specified.”

1. The public administrator contends that the matter in which he seeks to disqualify the

presiding judge in the district court is a “civil action” within the meaning of those words used

in the fifth subdivision of said section 8407. Respondent's position is that the proceeding inwhich the disqualifying affidavit was filed is not a “civil action” as those words are used in

the fifth subdivision of said section 8407.

In Haley v. Eureka County Bank, 21 Nev. 127, 26 P. 64, 67, 12 L. R. A. 815, an action is

defined as “a legal prosecution by a party complainant against a party defendant, to obtain the

judgment of the court in relation to some rights claimed to be secured, or some remedy

claimed to be given by law to the party complaining.” In Gates v. Columbia-Knickerbocker

Trust Co. (C.C.A.) 233 F. 359, 362 (appeal from the district court of the United States for the

District of Nevada), the court said: “Black in his Law Dictionary cites the definition of an

action given in the supreme court of Nevada in Haley v. Eureka County Bank et al., 21 Nev.

127, 26 P. 64, 12 L. R. A. 815. * * * We agree with -XGJH)DUULQJWRQZKRVDLGµ7KH

UHIHUHQFHLVWRFLYLODFWLRQVRQO\


Judge Farrington, who said: ‘The reference is to civil actions only. The statute quoted is a part

of the Civil Practice Act, which elsewhere (Rev. Laws, secs. 4943, 4944) states there shall be

in this state (Nevada) but one form of civil action for the enf orcement or protection of private

rights, and the redress or prevention of private wrongs. In such action the party complaining

shall be known as the plaintiff, and the adverse party as the defendant.'”

In the third edition of Black's Law Dictionary, published in 1933, the term “civil action,”as used in code practice, is defined as “a proceeding in a court of justice in which one party,

known as the ‘plaintiff,' demands against another party, known as the ‘defendant,' the

enforcement or protection of a private right, or the prevention or redress of a private wrong.”

Article 6, sec. 14, of the Nevada constitution, reads: “There shall be but one form of civil

action, and law and equity may be administered in the same action.” Section 1 of the civil

practice act (section 8500 N. C. L.) provides that “there shall be in this state but one form of

civil action for the enforcement or protection of private rights, and the redress or prevention

of private wrongs.” The following section (8501 N. C. L.) provides that “in such action the

party complaining shall be known as the plaintiff, and the adverse party as the defendant.”

Section 74 of the civil practice act (section 8573 N. C. L.) provides that “civil actions inthe district courts shall be commenced by the filing of a complaint with the clerk of the court,

and the issuance of a summons thereon.”

In re Escover's Estate, 108 Cal. App. 697, 292 P. 167, 168, was decided in 1930. In that

case the district court of appeal used the following language: “Two points are raised by

appellants: First, that the probate court erred in denying their motion for a trial by jury. The

denial was based upon the express provisions of section 1330, Code of Civil Procedure,

which reads in part: ‘In all cases of petitions to revoke the probate RIDZLOOZKHUHLQWKH



RULJLQDOSUREDWHZDVJUDQWHGZLWKRXWDFRQWHVWDWULDOE\MXU\PXVWEHKDG$VWKH RULJLQDOSUREDWHZDVJUDQWHGDIWHUDFRQWHVWZKHUHLQWKHFRQWHVWDQWVPLJKWKDYHKDGWKH LVVXHVWULHGE\DMXU\LIWKH\KDGVRGHPDQGHG LWLVHYLGHQWWKDWVRIDUDVRXUVWDWXWRU\

ODZLVFRQFHUQHGWKH\GLGQRWKDYHWKDWULJKWRQWKHVHFRQGWULDO


of a will wherein the original probate was granted without a contest, * * * a trial by jury must

be had.' As the original probate was granted after a contest wherein the contestants might

have had the issues tried by a jury if they had so demanded, it is evident that, so far as our

statutory law is concerned, they did not have that right on the second trial. Hence, the only

question remaining is whether our statutory law is valid in view of section 7 of article 1 of the

Constitution, which secures the right of trial by jury ‘in civil actions.' This was determined

adversely to appellants in Re Estate of Dolbeer, 153 Cal. 652, 657, 96 P. 266, 15 Ann. Cas.

207. This ‘right' was secured only in those cases where it existed in the common law. It was

not recognized as a right in probate matters in the common law because such mattersbelonged to the ecclesiastical jurisdiction, where trial by jury was not a right.”

2. This court, on several occasions, has pointed out that the bias or prejudice of a judge

would not, at common law, disqualify or incapacitate him to try a case. Allen v. Reilly, 15

Nev. 452; State ex rel. Elsman v. Second Judicial District Court, 52 Nev. 379, 287 P. 957;

Roberts Mining & Milling Co. v. Third Judicial District Court, 56 Nev. 299, 50 P. (2d) 512.

In Leonard v. Ekwall, 124 Ore. 351, 264 P. 463, 466, an attempt was made to require the

presiding judge of the circuit court for Multnomah County to transfer proceedings in the

matter of the guardianship of an alleged incompetent to another department of said court. In

the course of its opinion the court said: “No member of the bar, so far as known, since this

law has been in force, for more than eight years, has ever attempted to apply the Affidavit of Prejudice Act to a judge exercising probate jurisdiction. The cardinal rule for the construction

of a statute is to ascertain from the language thereof the intent of the lawmakers as to what

purpose was to be served, or what object was designed to be attained. If the Legislature had

intended that the Affidavit of Prejudice Act should be DSSOLHGLQSUREDWHSURFHGXUHLWZRXOG KDYHXQGRXEWHGO\XVHGVRPHSODLQODQJXDJHUHIHUULQJWRVXFKDSUDFWLFHWRLQGLFDWHVXFK

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applied in probate procedure it would have undoubtedly used some plain language referring

to such a practice to indicate such intent.”

In Appeal of Slattery, 90 Conn. 48, 96 A. 178, 179, the supreme court of errors of

Connecticut said: “The accepted meaning of the term ‘civil action' in this state is very well

illustrated by the provision of our Practice Act (Gen. St. 1902, sec. 607) that: ‘There shall be

but one form of civil action and the proceedings therein shall be as follows: The first pleading

shall be a complaint and shall contain a statement of the facts constituting the plaintiff's cause



of action and a demand for the relief to which he supposes himself entitled.' Controversies

arising in the probate court in the course of the settlement of estates are not civil actions in

that sense. They are not commenced by the service of process, and no complaint or other

pleadings are required. On the contrary, the parties to such controversies are not permitted to

delay the settlement of the estate by instituting civil actions in the courts of general

jurisdiction to determine their rights. Public interest requires that so far as the determinationof their controversies is necessary to the settlement of the estate they should be determined in

the probate court as matters incidental to such settlement, by the informal proceedings which

are customary in those courts.”

The foregoing authorities convince us that the term “civil action” as used in subdivision 5

of section 8407 N. C. L., as amended, Stats. 1931, c. 153, sec. 1, p. 247, does not included a

proceeding such as that in which it is sought to disqualify the presiding judge of department 2

of the Second judicial district court.

3. Petitioner directs our attention to section 9881 N. C. L.: “When not otherwise specially

provided in this act all the provisions of law regulating proceedings in civil cases shall apply

in matters of estate, when appropriate, or the same may be applied as auxiliary to the

provisions of this act.” The section relied upon to disqualify the presiding judge of department 2 of WKHGLVWULFWFRXUWLVQRWLQRXURSLQLRQDSURYLVLRQRIODZ³UHJXODWLQJ SURFHHGLQJVLQFLYLOFDVHV´


the district court is not, in our opinion, a provision of law “regulating proceedings in civil

cases.” It is a section of “An Act concerning the Courts of Justice of this State, and Judicial

Officers,” Stats. 1864-65, c. 19, approve January 26, 1865. This is a separate act and is not

included in the civil practice act; the latter being entitled “An Act to regulate proceedings in

civil cases in this state and to repeal all other acts in relation thereto.” (Italics are ours.)

We deem it unnecessary to determine other questions presented in this proceeding. The

petition for a peremptory writ of mandamus is denied, and the alternative writ dismissed.

____________

ÐÐÐÐ56 Nev. 339, 339 (1935) Zasucha v. AllenÐÐÐÐ

ZASUCHA v. ALLEN

No. 3115

December 5, 1935. 51 P. (2d) 1029.

1. Trial.Permitting plaintiff in suit to foreclose mechanic's lien to reopen his case for more detailed account of

performance of contract held not abuse of discretion.



2. Trial.Permitting person named in mechanic's lien claim as one of owners to testify after reopening of

plaintiff's case in mechanic's lien foreclosure suit, that he had no interest in property, held not improper,

where defendant had moved for nonsuit on ground of defect of parties.

3. Trial.Whether plaintiff will be permitted to reopen his case and introduce additional evidence is within trial

court's discretion.

4. Appeal and Error.Order permitting plaintiff to reopen his case for introduction of additional evidence will not be held

erroneous on appeal, if discretion was not abused.

5. Mechanics' Liens.Finding in mechanic's lien foreclosure suit that defendant was sole owner of real property held

justified under evidence, notwithstanding fact that copy of lien claim attached to complaint designated

third person as a coowner.

6. Mechanics' Liens.Defendant's claim of defect of parties in mechanic's lien foreclosure suit held waived by failure to

demur, where copy of lien claim, in which it was stated that third person was FRRZQHURISURSHUW\

ZDVDWWDFKHGWRFRPSODLQW&RPS


coowner of property, was attached to complaint (Comp. Laws, secs. 8600, 8601).

7. Pleading.Copy of lien claim attached to and made part of complaint in mechanic's lien foreclosure suit became

part of complaint as though it had been incorporated therein.

8. Mechanics' Liens.Allegation in complaint in mechanic's lien foreclosure suit that defendant was owner of property held

equivalent to allegation of ownership in fee simple.

9. Trial.Evidence that defendant in mechanic's lien foreclosure suit was sole owner of property held

admissible, notwithstanding admission in answer of allegations as to defendant's sole ownership, where

copy of lien attached to complaint stated that a third person was coowner.

10. Mechanics' Liens.Lien claim naming true owner of property is not rendered invalid by fact that it also names as owner

another who has no interest therein.

11. Mechanics' Liens.Finding in mechanic's lien foreclosure suit that defendant as owner of property employed plaintiff to

make repairs held justified under evidence.


Action by E. A. Allen against Waleryia Virginia Zasucha. From a judgment for plaintiff,

and an order denying a motion for a new trial, defendant appeals. Affirmed.

Albert A. Hinman, for Appellant:

The court erred in granting leave to the plaintiff to reopen the case for the introduction of



further evidence, for the reasons: (1) the further evidence was not specified; (2) no showing

was made as to the purpose of such evidence; and (3) no showing was made why such

evidence had not been previously offered. 64 C. J. 166, nn. 48 , 49.

The court erred in denying defendant's objections to the testimony of Mr. Wiley that he did

not then, nor did he on the 16th of March, 1934, claim any interest in the property,

notwithstanding the admission in the reply of the affirmative defense, and the IDFWWKDWWKHUH ZDVQRLVVXHXSRQWKHTXHVWLRQRIRZQHUVKLSRIDQLQWHUHVWLQWKHSURSHUW\E\0U


fact that there was no issue upon the question of ownership of an interest in the property by

Mr. Wiley.

Even if Mr. Wiley's testimony had been properly admitted, it was wholly insufficient to

affect the admissions in the pleadings, or to establish a disclaimer. Martin v. Bank (Okla.), 43

P. (2d) 394; Chase v. Van Kamp, etc. Co. (Cal.), 292 P. 179; Holcomb v. Long Beach Inv.Co. (Cal.), 19 P. (2d) 31, 35-36; Dressler v. Johnston (Cal.), 21 P. (2d) 969.

There is no evidence in the record to support the finding that the defendant was the sole

owner of the property. The admissions in the pleadings and the testimony of Mr. Wiley

conclusively establish an undetermined interest of Mr. Wiley in the property. Therefore, a

complete determination of the controversy could not be had without the presence of Mr.

Wiley as a party, and it was the duty of the court to order him brought in as a party. Sec. 8565

N. C. L.; 2 Ban. Prac., 1124-31; Robinson v. Kind, 23 Nev. 330, 47 P. 977; Bliss v. Grayson,

24 Nev. 422, 56 P. 231; Rutherford v. Union, etc. Co., 47 Nev. 21, 213 P. 1045; 3 Ban. Pl.

3075-7, nn. 11, 15-18.

In this case plaintiff has elected to rely solely upon an express contract. Therefore, it must

stand or fall upon the express contract, no recovery upon quantum meruit having been askedor granted. 2 R. C. L. 773, nn. 6, 7; 5 C. J. 1407-8, nn. 99, 1, 4, 5; Christensen v. Duborg, 38

Nev. 404, 150 P. 306; Colyer v. Lahontan Mines Co., 54 Nev. 353, 17 P. (2d) 697. There was

no express contract between the plaintiff and the defendant.

H. N. Gambill and Harry H. Austin, for Respondent:

The court did not err in granting leave to plaintiff to reopen his case for the introduction of

further evidence. It was within the court's sound discretion. 64 C. J., pp. 158, 160, 161, secs.

179, 180.

We think the court did not err in denying defendant's objection to the testimony of Roland

H. Wiley. In a motion for nonsuit appellant urged a defect of parties GHIHQGDQW


defendant. Mindful of this point made, the respondent then produced Mr. Wiley to testify

relative to any claim of ownership by him.

One may search the record in vain for any evidence that even remotely intimates that any



other person, firm or corporation was even a part owner with appellant in the premises. The

appellant herself testified that she owned the property and that there had been no change in

title since January. All of her testimony abounds with acts of ownership and dominion over

the property. And appellant's answer contains no denial of the allegation in plaintiff's

complaint that defendant was and is the owner of the premises therein described.

We insist that there was an express contract between the parties, which has beenperformed by the respondent.

OPINION

By the Court, Ducker, C.J.:

Plaintiff brought this action for the purpose of foreclosing a lien for labor performed and

materials furnished in repairing and altering a building. The trial resulted in a judgment for

plaintiff in the sum of $467.50, the amount prayed for, with costs, and foreclosure of the lien

upon the premises and buildings described in the complaint. Defendant has appealed from the

judgment and order denying her motion for a new trial.

The complaint alleges that the defendant is the owner of the building and premises to becharged with the lien, and a contract of employment of plaintiff by defendant, through her

agents and employees, for labor and materials for the repair, alteration, and construction of

said building duly performed and furnished. A copy of plaintiff's lien claim containing a

statement of his demand is alleged to have been duly filed and recorded, and is attached to

and made a part of the complaint. In said copy it is stated that the owners and reputed owners

of said real property and LPSURYHPHQWVWKHUHRQDUH:DOHU\LD9LUJLQLD=DVXFKDDQG5RODQG

+


improvements thereon are Waleryia Virginia Zasucha and Roland H. Wiley. The answer

admits the allegations of ownership of the building and premises, and denies most of the

other allegations.

For a second defense it is alleged in the answer: “That there is a defect of parties in the

omission of Roland H. Wiley, as a party defendant in this action, as a coowner of the real

property described in the complaint.”

1-4. When plaintiff closed its case defendant moved for a nonsuit on certain grounds,

among which were (1) failure to establish agency, and the contract relied upon, and (4) defectof parties. The motion was denied; whereupon, over the objection of defendant, the trial court

permitted plaintiff to reopen his case and introduce further evidence. This is assigned as error.

It is within the discretion of the trial court whether a plaintiff will be permitted to reopen his

case and introduce additional evidence. If such discretion is not abused, there is no error.

McLeod v. Lee, 17 Nev. 103, 28 P. 124; Sweeney v. Hjul, 23 Nev. 409, 48 P. 1036, 49 P.

169. The evidence introduced on the reopening of the case consisted largely of a more

detailed account by plaintiff of the performance of the contract. This was permissible. In



addition, Roland H. Wiley was sworn and testified that he did not then or at the

commencement of the action claim any interest in the property described in the complaint;

that he at one time had an option to purchase the property described. Wiley's testimony was

not improper, especially in view of defendant's motion for a nonsuit on the ground of defect

of parties.

It appears that plaintiff was acting in good faith in reopening his case, and we are of theopinion that there was no abuse of discretion.

5-7. Findings Nos. 1 to 8, inclusive, are attacked by defendant as having no support in the

evidence. The first finding is as follows: “That defendant on the 21st day of January, 1934,

and at all times has been and still is the sole owner of the real property described LQWKH FRPSODLQW´


in the complaint.” There is ample evidence to sustain this finding. Defendant, who was called

as a witness by plaintiff, testified that she was the owner of the property. As previously stated,

Wiley testified that he had no interest in it, and it nowhere appears that anyone else had or

claimed an interest. On the contrary, counsel for defendant, in his question to her, assumed

that she was the owner. His contention that there is no evidence to sustain that finding is

highly technical. If we understand him aright, he claims, that as it was stated in the copy of

the lien, attached to and made a part of the complaint, defendant and Roland H. Wiley were

the owners and reputed owners, and as the answer did not deny this, it became an admitted

fact. Therefore, evidence to show that defendant was the sole owner was beside the issue, and

his second defense, of the defect of parties, should have been sustained. Defendant was notentitled to insist upon the second defense. It was waived when she did not demur to the

complaint on that ground, because the defect appeared on the face of the complaint. Sections

8600, 8601 N. C. L. It thus appeared because the copy of the lien, in which it was stated that

defendant and Roland Wiley were the owners and reputed owners, was made a part of the

complaint, and became as much a part thereof as though it had been, in haec verba,

incorporated into the body of the pleading. Meer v. Cerati, 53 Cal. App. 497, 200 P. 501;

Jarvis-Conklin Mortgage Trust Co. v. Sutton, 46 Kans. 166, 26 P. 406.

8, 9. The court could have found from the pleadings that defendant was the sole owner.

The allegation in the complaint, that she “is now and was at all times hereinafter mentioned

the owner of the following described property,” is equivalent to an allegation that she was theowner in fee simple. Garwood v. Hastings, 38 Cal. 216. This was admitted by the answer.

Evidence on this point, however, was admissible, if for no other purpose, to show that the

recital in the copy of the lien attached, that Roland H. Wiley was an owner, was a mistake.




10. A lien claim naming the true owner or owners is not rendered invalid by the fact that it

also names as owner another person who has no interest in the property. 40 C. J. p. 230;

McClain v. Hutton, 131 Cal. 132, 61 P. 273, 63 P. 182, 622; N. C. L. sec. 3739. How

defendant could have been prejudiced by the action of the court in permitting plaintiff to

reopen his case and introduce additional evidence, or in making the above finding, is not

discernible.11. The second finding, which reads, “that the defendant employed the plaintiff to repair

said building at the agreed price of $467.50, to be paid upon the completion of the work,” is

supported by the evidence. It shows that one Lailla Stanley, employed by Golden West Oil &

Refining Company, lessee of the property, was authorized by defendant to procure bids for

repairing the damage done by fire. The following is a copy of the bid received by her from

plaintiff, and accepted:

“January 21, 1934.

“I agree to furnish all labor and material for repairing service station at 10th & Fremont

Streets, damaged by fire, including Kalsoming five rooms, painting five room two coats, and

painting outside of building two coats; repairing roof, but not painting it, all for the sum of Four Hundred sixty two and 50/100 ($462.50).

“I will also paint roof of canopy for additional $5.00, you to furnish paint for this part of

painting only.

“(Signed) E. A. Allen.

“Accepted: Golden West Oil & Refining Co.,

“By Lailla Stanley.”

The bid was signed by plaintiff, and the evidence tends to show that it was approved by

defendant. The court was justified in finding that this bid became the contract of the parties.

The evidence is adequate to support the third finding, “that the plaintiff performed thework and furnished the materials pursuant to the alleged contract,” and the RWKHUVREMHFWHG WR


others objected to. We consider it unnecessary to further review the evidence.

There is no merit in the other assignment of errors.

The judgment and order denying a new trial are affirmed.


February 6, 1936.

Per Curiam:

Rehearing denied.



____________

ÐÐÐÐ56 Nev. 346, 346 (1936) In Re MacDonnell's EstateÐÐÐÐ

In Re MacDONNELL'S ESTATE

MacDONNELL v. ARNOTT Et Al.

No. 3130

January 6, 1936. 53 P. (2d) 625.

1. Executors and Administrators.Court had no discretion to refuse application to set apart to use of family proceeds of exempt policy

on life of decedent (Comp. Laws, secs. 8844, 9700).

2. Courts.Rule of law, long established and repeatedly sanctioned, will be adhered to, when to change rule

might lead to confusion and harm.


Proceeding in the matter of the estate of John Grant MacDonnell, deceased, by Marguerite

C. MacDonnell against Bessie Rowntree Arnott, as executrix of the last will and testament of

John Grant MacDonnell, deceased, and others. From an adverse order and an order denying a

motion for a new trial, defendants appeal. Orders affirmed.

L. D. Summerfield, for Appellants:

It is the contention of appellants that:

1. The provision of sec. 9700 N. C. L. which states that the court “may” set apart exempt

property vests the court in discretion in considering and acting upon such applications;


2. The provisions of sec. 9700 N. C. L. have no application to estates in which summary

administration has been ordered, as in the one at bar; and

3. That the petitioner is estopped to claim any part of the insurance money as against the

preferred claim of Ross-Burke Company for funeral expenses.

The trial court should ascertain the needs of the family of deceased, and then, in its

discretion, either set apart all or some of the exempt property to them, depending upon their

needs and the amount of exempt property in the estate, and pro rate the balance, if any, among

the creditors, taking into consideration also the fairness of their bills and the amount thereof

representing out-of-pocket cost and profit.



Joseph P. Haller and Albert Hilliard, for Respondent:

Respondent contends that the provisions of sections 9700 and 8844 N. C. L. are the

governing factors in the case at bar, and that by sec. 9700, even though the word “may” is

used, it is mandatory upon the district judge to set aside or set apart for the use of the family

of the deceased all exempt property which is designated by sec. 8844, and that the court is

without discretion in considering the petition of a widow and child or children to set aside theexempt property for their personal benefit and use without administration. Estate of Walley,

11 Nev. 260; In re Lavendol's Estate, 46 Nev. 182, 209 P. 237; In re Foster's Estate, 47 Nev.

297, 220 P. 734; Hunter et al. v. Downs et al., 53 Nev. 132, 143, 295 P. 438.

OPINION


The deceased died in Reno, Nevada, in 1935, having a wife and four children living in

California. By his will the deceased bequeathed his entire estate, which consisted of the

proceeds of a life insurance policy in the amount of $3,000, the annual premium of which

ZDVOHVVWKDQWR%HVVLH5RXQWUHH$UQRWWDQGLQVDLGZLOOQDPHGKHUDVH[HFXWUL[


was less than $500, to Bessie Rountree Arnott, and in said will named her as executrix. She

was appointed and qualified as executrix, and formally relinquished any right she might have

in the estate, under the will, but filed her claim as a creditor. Claims were filed by others,

namely, the hospital, undertaker, doctors and druggist. Preferred claims were approved and

allowed in the sum of $2,082.96; other claims were also allowed, making a total of

$4,365.42. Thereafter the heirs of deceased filed a petition requesting that the proceeds of theinsurance policy be set aside to them as exempt. The court entered an order in accordance

with the prayer of the petition, from which an order denying a motion for a new trial the

executrix and certain creditors have appealed.

1. It is the contention of appellants that it was discretionary with the lower court to set

aside said insurance money to the heirs, and that, in the exercise of its discretion, it should

have refused to set it aside; whereas respondents contend that the court had no discretion in

the matter and was legally bound to set it aside as it did.

The determination of the point involved depends upon the correct construction of a portion

of the section of our civil practice act pertaining to exemptions, being section 8844 N. C. L.,

and to section 101 of “An Act to regulate the settlement of the estates of deceased persons”(Stats. 1897, c. 106), being section 9700 N. C. L.

The section in question pertaining to exemptions, so far as is here material, provides: “The

following property is exempt from execution. * * * All moneys, benefits, privileges, or

immunities accruing or in any manner growing out of any life insurance, if the annual

premium paid does not exceed five hundred dollars, and if they exceed that sum a like

exemption shall exist which shall bear the same proportion to the moneys, benefits,

privileges, and immunities so accruing or growing out of such insurance that said five



hundred dollars bears to the whole annual premium paid.”

Section 101 of the act pertaining to the settlement RIHVWDWHVVHFWLRQ1&/ UHDGV³8SRQWKHUHWXUQRIWKHLQYHQWRU\RUDWDQ\WLPHWKHUHDIWHUGXULQJWKH DGPLQLVWUDWLRQWKHFRXUWRUMXGJHRIKLVRZQPRWLRQRURQDSSOLFDWLRQPD\VHWDSDUWIRU WKHXVHRIWKHIDPLO\RIWKHGHFHDVHGDOOSHUVRQDOSURSHUW\ZKLFKLVH[HPSWE\ODZIURP H[HFXWLRQDQGWKHKRPHVWHDGDVGHVLJQDWHGE\WKHJHQHUDOKRPHVWHDGODZQRZLQIRUFH

ZKHWKHUVXFKKRPHVWHDGKDVWKHUHWRIRUHEHHQVHOHFWHGDVUHTXLUHGE\VDLGODZRUQRW DQGWKHSURSHUW\WKXVGLUHFWHGWREHVHWDSDUWVKDOOQRWEHVXEMHFWWRDGPLQLVWUDWLRQ´


of estates (section 9700 N. C. L.) reads: “Upon the return of the inventory or at any time

thereafter during the administration, the court or judge, of his own motion, or on application,

may set apart for the use of the family of the deceased all personal property which is exempt

by law from execution, and the homestead as designated by the general homestead law now in

force, whether such homestead has theretofore been selected as required by said law or not,and the property thus directed to be set apart shall not be subject to administration.”

The lower court, in making its order setting aside the insurance money, relied upon the

following decisions of this court and authorities cited therein, and indicated that but for these

decisions it would have ordered otherwise. The decisions referred to are: In re Lavendol's

Estate, 46 Nev. 181, 182, 209 P. 237; In re Foster's Estate, 47 Nev. 297, 220 P. 734; Hunter v.

Downs, 53 Nev. 132, 295 P. 438.

In the year 1873, several years prior to the consideration of this question in Re Walley's

Estate, 11 Nev. 260, the supreme court of California, in Re Estate of Ballentine, 45 Cal. 696,

in disposing of the question here presented, under the provisions of the civil practice act of

California, substantially the same as are the provisions of our civil practice act, held that a

homestead should be set aside. The ruling thus made by the supreme court of California hasbeen consistently adhered to in that state, as shown by the following decisions: In re

Millington's Estate, 63 Cal. App. 498, 218 P. 1022; Mahoney v. National Surety Co., 89 Cal.

App. 148, 264 P. 304; In re Ehler's Estate, 115 Cal. App. 403, 1 P. (2d) 546. The rule laid

down in Re Ballentine's Estate, supra, was followed by the supreme court of Idaho in Lemp v.

Lemp, 32 Idaho, 397, 184 P. 222.

The California statute, corresponding to section 9700 N. C. L., was amended in 1931 so as

to provide that the court may “in its discretion” set apart, etc. See Deering's Codes 1931,

Probate Code, sec. 660, p. 1417.


2. The learned counsel for appellant made, in his brief and orally, a most able argument in

favor of his contention, but we do not think it would serve any useful purpose to here enter

into an analytical consideration of the arguments presented. The order of the lower court is in

accord with a long-standing interpretation of the law. No principle is more widely recognized



than that a rule of law long established and repeatedly sanctioned will be adhered to by the

courts, when to change the rule might lead to confusion and widespread harm. Libby v.

Dalton, 9 Nev. 23; Kapp v. Kapp, 31 Nev. 70, 99 P. 1077, 21 Ann. Cas. 599; 15 C. J., p. 916.

We feel that the legislature might well consider the advisability of amending section 9700

N. C. L. as the California legislature amended its law in 1931.

Orders affirmed.

____________

ÐÐÐÐ56 Nev. 350, 350 (1936) In Re Santini's EstateÐÐÐÐ

In Re SANTINI'S ESTATE

BAROZZI Et Al. v. NATURALE Et Al.

No. 3074

January 13, 1936. 53 P. (2d) 338.

Wills.

Mother, foster brother, and administrator of deceased could not contest probate of decedent's will in

absence of allegation that there was no one having prior right to estate, since administrator was not

“interested person” and foster brother was not “heir” within statute (Comp. Laws, secs. 9615, 9859).

Appeal from Eighth Judicial District Court, Clark County; Edgar Eather, Judge Presiding.

Proceeding by Angelo Barozzi and another against Maria Naturale and others to probate a

lost holographic will of Joe Santini, deceased. From a judgment denying probate, proponents

appeal. Reversed.

A. A. Hinman and Roland W. Wiley, for Appellants:

None of the contestants are “persons interested” within the meaning of the statute (sec.

9615 N. C. L.).


The statement or caveat does not allege the mother is the next of kin. She, therefore, is not

a “person interested” with the meaning of the statute. 40 Cyc. 1241-1243, nn. 22-30; 28 R. C.

L. 386, Wills, sec. 389, nn. 20-22; I Ban. Prob. Prac. 313, sec. 171, n. 14; L. R. A. 1918a,

452, note (2d col.); Gore v. Howard (Tenn.), 30 S. W. 730; In re Wendell's Will, 257 N. Y. S.

87; In re Land's Estate (Cal.), 137 P. 246; Frank v. Shipley (Ore.), 29 P. 268.

The relationship of foster brother is unknown to the law of descent and distribution.

Adoption is not alleged.

An administrator is not such “interested person.” 28 R. C. L. 389, Wills, sec. 393, n. 10.



Harmon & Foley, for Respondents:

Paragraph III of the caveat alleges that the mother and foster brother were the only next of

kin surviving the deceased. In our examination of the authorities cited by counsel we find

none to the effect that a failure to allege in the contest that there were no surviving wife,

children or children of a deceased child would be a fatal defect.If the right of the mother to participate in this contest was raised at a hearing of the contest,

we would be given an opportunity to show that there was no one in existence who had a prior

right to participate. In re Mauvis' Estate (Cal.), 185 P. 987; In re Land's Estate, 137 P 246; In

re Behren's Estate, 62 P. 603.

OPINION


This is an action to probate a lost holographic will. The proponents and the deceased were

all natives of Italy. Two main questions are presented upon this appeal: (1) That contestants

have no interest in the estate, and hence no right to contest the probate of WKHZLOORIIHUHG DQGWKDWWKHILQGLQJVDUHDJDLQVWWKHHYLGHQFH


the will offered; and (2) that the findings are against the evidence.

The contestants are the mother of the deceased, a foster brother of deceased, and the

administrator of his estate. There is no allegation of facts on the part of the contestants

showing, or attempting to show that there is no one living who has a prior right to inherit the

estate of the deceased than the contestants, or any of them.Section 9615 N. C. L. provides who may appear and contest a will, and it limits such

persons to those who are “interested.”

Section 9859 N. C. L. enumerates the persons who shall inherit the estate of a deceased

person dying intestate, and there is no allegation of fact, nor anything smacking of such

allegation, to the effect that no one of a class entitled to inherit prior to the mother is not

living. Such an allegation is necessary, and an allegation of a mere conclusion will not

suffice. Naylor v. Mealey, 62 App. D. C. 321, 67 F. (2d) 693.

So far as appears, there may be a wife of the deceased, or others who have such prior right.

This being true, the motion to strike such contest, and all objections to such attempt to contest

the probate of the will, should have been sustained. 68 C. J. 902; 28 R. C. L. pp. 386-389. Anadministrator is not an interested person (68 C.J. p. 906), and a foster brother is not an heir

under our statute.

We do not deem it necessary to pass upon the sufficiency of the evidence, but it presents a

rather unusual situation. Contestants were tenants of the deceased from about September 1,

1931, to the time of his death, April 25, 1932—a little over eight months—and it is their

theory that during that short period deceased became so attached to them that he was anxious

to leave everything he had to them. This is remarkable, in view of the fact that he had a



mother living.

Contestants not being entitled to be heard under the allegations mentioned, it is ordered

that the orders DSSHDOHGIURPEHUHYHUVHGWKHORZHUFRXUWWRSHUPLWDPHQGPHQWVWRWKH SOHDGLQJVRQVDWLVIDFWRU\VKRZLQJFRV WVWRDELGHILQDOGHWHUPLQDWLRQRIWKLVFRQWHVW


appealed from be reversed, the lower court to permit amendments to the pleadings, on

satisfactory showing; costs to abide final determination of this contest.

____________

ÐÐÐÐ56 Nev. 353, 353 (1936) In Re Wilson's EstateÐÐÐÐ

In Re WILSON'S ESTATE

TAYLOR v. WILSON

No. 3121

January 6, 1936. 53 P. (2d) 339.

1. Appeal and Error.Trial court will not be reversed on an issue of fact where findings are supported by substantial

evidence.

2. Husband and Wife.In contest between husband and wife's daughter over distribution of property on wife's death,

evidence held to entitle husband to judgment on ground that estate was community property, and that

husband had not abandoned deceased although they were not living together when wife died (Comp.

Laws, secs. 3364, 3368, 3369).

3. Husband and Wife.That husband permitted wife to withdraw part of community funds and deposit funds in wife's name in

bank in city in which wife was residing away from husband held insufficient to show gift of such funds to

wife (Comp. Laws, secs. 3364, 3368, 3369).

4. Husband and Wife.That wife with husband's knowledge was made grantee in deed of property purchased by wife with

community funds held insufficient to show gift of property to wife (Comp. Laws, secs. 3364, 3368,

3369).

5. Husband and Wife.All property acquired after marriage by toil or talent of either spouse is presumed to be community

property.

6. Husband and Wife.Ordinarily, test of separate or community character of property acquired during marriage is whether

property was acquired by community funds and community credit or by separate funds.

7. Husband and Wife.



Community estate may be vested in either spouse, and true character of estate is not determined by

nature of transactions under which property is acquired regardless of which spouse retains title.

8. Husband and Wife.Rule that property purchased with earnings of husband and wife is community property does not apply

where property is SXUFKDVHGZLWKZLIHVHDUQLQJVXQGHUVWDWXWH& RPS


purchased with wife's earnings under statute (Comp. Laws, secs. 3368, 3369).

9. Husband and Wife.

Where it appears that property is community property it will be presumed that property retains such

character until direct evidence to contrary is introduced, and burden of proof is on party claiming

contrary.

10. Evidence.That husband had filed affidavit for change of venue in wife's divorce suit alleging that all of property

was located in his county of residence, although wife was living on property located in other county, did

not show that property was not community property, since opinion of either spouse as to whether

property is separate or community property is of no weight (Comp. Laws, secs. 3364, 3368, 3369).


Proceeding in the matter of the estate of Julia Wilson, sometimes known as Gussie

Wilson, deceased, wherein Elaine Taylor objected to the petition of George P. Wilson, as

administrator, for distribution of the estate. From an adverse order and decree, Elaine Taylor

appeals. Affirmed

F. Raffeto and J. M. Frame, for Appellant:In the case at bar the testimony of respondent himself, together with the testimony of

appellant and other witnesses, establishes undisputedly that the deceased wife of George

Wilson, from the time of their marriage down to the year 1926, devoted her entire time,

energy and labor to the furtherance of the business of the Prater Company, which was a

Wilson corporation and in which Mrs. Wilson was part owner. That while she did not work

for a specified salary, the evidence does show that the deceased, at all times, had access to

and the control of the money of the corporation, and, with the consent of George Wilson, had

full authority to draw upon the same for her own purposes, and that no objection whatever

was ever made by him to any appropriation she made of the community property. It,

therefore, must be concluded, under the decision of WKLVFRXUWLQWKHFDVHRI*ROGVZRUWK\Y

-RKQVRQ 1HY


this court in the case of Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505, that such

conversion by the wife with the knowledge and consent of her husband amounted to a gift



from the husband to the wife, and was deemed to be her separate property.

The consent of George Wilson to and the depositing of the money in the joint account

amounted to a delivery of this deposit to the wife, and was in law a gift and constituted the

same her separate property. Goldsworthy v. Johnson, supra; Potter v. Smith (Cal.), 191 P.

1023.

It will be observed that in the year 1933, during the pendency of a divorce action institutedby the wife, the husband, in order to obtain the benefit of a change of the place of trial, filed

his affidavit in support of such application, in which he solemnly declared, under oath, among

other things, that there was no community property situate in the county of Washoe, where

the action was originally brought by his wife, and that all of the community property of the

parties was situate in Storey County. It is apparent from this declaration that George Wilson

himself at that time recognized and conceded the fact to be that the property situate in

Washoe County and held under conveyance to his wife was her separate property.

Under our statute, sec. 3364 N. C. L., where the husband and wife are living separate and

apart, before the husband can claim the salvage of his dead wife's estate he must show that his

desertion was for a justifiable cause and such cause as would have entitled him to a divorce.

George L. Sanford, for Respondent:

Whatever respondent's belief or his mistake might have been at the time of making his

affidavit for change of place of trial in the divorce action, it could not make community

property into separate property. Potter v. Smith (Cal.), 191 P. 1023.

The presumption is that property acquired by either VSRXVHGXULQJFRYHUWXUHLV FRPPXQLW\SURSHUW\DQGDOOWKHPRUHVRZKHQJUDQWHGE\WKLUGSDUWLHVLUUHVSHFWLYH

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spouse during coverture is community property, and all the more so when granted by third

parties, irrespective whether the husband or the wife is named as grantee. In this case the

grantee is “Gussie Wilson, wife of George Wilson,” and the court found and all the

intendments of the decision are that the record title stands in the name of George Wilson as a

matter of law. Wells v. Allen, 177 P. 180; Fulkerson v. Stiles, 108 P. 966; Fanning v. Green,

104 P. 309; sec. 3356 N. C. L.

Without a conclusive showing that the husband abandoned his wife and also lived separate

and apart from her, he does not forfeit his rights to all the community property or to any part

of the same. Sec. 3364 N. C. L.

Without a showing of a gift by the husband to the wife of her earnings and accumulations,

they do not become her separate property. Sec. 3369 N. C. L.

When a wife voluntarily and with the consent of her husband, and the husband with the

consent of the wife, dwell in separate communities for health, business, or economic reasons,

it does not amount to a living apart within the meaning of the law. Makeig v. United, etc. Co.,

296 P. 673.

By the same token it would not constitute a living apart under the five-year divorce statute.



There is no evidence of abandonment or living apart for five years, or at all. Sec. 9467.06 N.

C. L.

And the question of cause for divorce or fault does not enter such cases. The decree of the

trial court cannot be coerced. It is discretionary. Herrick v. Herrick, 55 Nev. 59, 25 P. (2d)

378.

OPINION

By the Court Taber, J.:

Julia Wilson, sometimes known as Gussie Wilson, died intestate February 2, 1934, in

Washoe County, Nevada. She left surviving her George P. Wilson, her KXVEDQG UHVSRQGHQWDQG(ODLQH7D\ORUKHUGDXJKWHUDSSHOODQWERWKEHLQJRYHUWKHDJHRI

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ÐÐÐÐ56 Nev. 353, 357 (1936) In Re Wilson's Estate

ÐÐÐÐ

husband (respondent), and Elaine Taylor, her daughter (appellant), both being over the age of

twenty-one years. Respondent was appointed administrator of the estate. In due course of

administration and on January 5, 1935, respondent, as administrator, filed his petition for

distribution wherein the estate, consisting chiefly of two fractional city lots, with

improvements, was alleged to be community property which, he prayed, should be distributed

to him as the surviving husband. Appellant filed objections to the granting of said petition

upon the ground that respondent had abandoned said Julia Wilson for more than five years

next preceding her death. Appellant also filed, in said estate, a petition for distribution, setting

forth that the property in dispute was the separate property of her mother; that respondent had

abandoned her during her lifetime; that said property was acquired by said Julia Wilson withher own means which were her separate property; that respondent had full knowledge of the

purchase of said lots and improvements and consented that his wife take said property in her

own name and as her separate property. In his answer to appellant's said objections and

petition, respondent denied the material allegations therein contained, except that in said

answer he admitted that for several years prior to the death of his wife they had not cohabited,

but that this was at the desire and request of the wife, without the fault of petitioner, and

against his will and wishes. After a hearing, the district court decided that the property in

dispute was community property; that respondent had not made a gift thereof to said Julia

Wilson; and that respondent had not abandoned her. Appellant's objections were overruled,

her petition for distribution denied, and that court awarded said property to respondent. This

appeal is taken from the orders overruling appellant's said objections and petition and from

the decree distributing said property to respondent.

Two questions are presented on this appeal: (1) After the marriage was any of the

community property of the husband and wife converted into the separate SURSHUW\RIWKHZLIH E\DQ\JLIWPDGHRUDFTXLHVFHQFHPDQLIHVWHGE\WKHKXVEDQGRURWKHUZLVH"




property of the wife by any gift made or acquiescence manifested by the husband or

otherwise? (2) After the marriage did the husband forfeit his right to inherit and receive all or

any of the community property, by reason of any abandonment of and living separate and

apart from his wife without having grounds for divorce against her?

Section 3364 N. C. L. reads as follows: “Upon the death of the wife the entire community

property belongs, without administration, to the surviving husband, except that in case the

husband shall have abandoned his wife and lived separate and apart from her without such

cause as would have entitled him to a divorce, the half of the community property subject to

the payment of its equal share of the debts chargeable to the estate owned in community by

the husband and wife, is at her testamentary disposition in the same manner as her separate

property, and in the absence of such disposition goes to her decedents equally, if such

descendants are in the same degree of kindred to the decedent; otherwise, according to the

right of representation; and in the absence of both such disposition and such descendants,

goes to her other heirs at law, exclusive of her husband.”Section 3369 N. C. L. provides that: “When the husband has allowed the wife to

appropriate to her own use her earnings, the same, with the issues and profits thereof, is

deemed a gift from him to her, and is, with such issues and profits, her separate property.”

Respondent and Julia Wilson were married in November, 1912, and remained husband

and wife until the latter's death. At the time of the marriage appellant, daughter of said Julia

Wilson, was four years old. It appears that before the marriage Julia Bailey (later Mrs.

Wilson) had no property. She had for some time been working as bookkeeper for the N. C.

Prater Company, a corporation, at a salary of $35 per month. After the marriage, she kept

house for respondent and her daughter for approximately two years, during which time theFRUSRUDWLRQHPSOR\HGDQRWKHUERRNNHHS HU


corporation employed another bookkeeper. Mrs. Wilson then went back to her work as

bookkeeper and continued in that capacity and in helping to conduct the business until 1926.

Practically all of the capital stock of said corporation was owned by respondent. Mrs. Wilson

owned four shares. Mr. Wilson was president, and Mrs. Wilson secretary. Checks could be

drawn by either. Besides the company's grocery store, which was operated at Virginia City

where Mr. and Mrs. Wilson lived, N. C. Prater Company acquired and owned more than a

dozen other pieces of property in said city, the titles of which were in the name of the

corporation. There was no agreement or understanding that Mrs. Wilson should received any

salary after the marriage. Respondent did most of the work of conducting the business, and

out of its proceeds the living expenses were taken for him, Mrs. Wilson, and appellant.

Appellant was supported and educated by respondent, and respondent paid the premiums on

an insurance policy on Mrs. Wilson's life, wherein appellant was beneficiary and on which

appellant has received $2,000.



In 1926 Mrs. Wilson moved to Reno. This step was taken, according to respondent, for the

benefit of her health. Appellant claims that there was an additional reason, namely, lack of

attention to and consideration for Mrs. Wilson on the part of respondent.

After going to Reno Mrs. Wilson divided the funds in the Virginia City bank into three

parts, one being left in that bank, another placed in joint savings account in the First National

Bank in Reno, and the third in joint savings account in the Washoe County Bank of Reno—said savings accounts each in the names of respondent and Mrs. Wilson, not in the

name of the corporation. Respondent thinks it was not until after Mrs. Wilson's death that he

learned of the accounts in the Reno banks having been placed by Mrs. Wilson in their joint

names. He says he trusted her in everything, and that while he knew she was putting some of WKHFRPSDQ\VPRQH\LQ5HQREDQNVKHDVVXPHGLWZDVGHSRVL WHGLQWKHQDPHRIWKH

FRUSRUDWLRQDVLWKDGEHHQDW9LUJLQLD&LW\


the company's money in Reno banks, he assumed it was deposited in the name of the

corporation, as it had been at Virginia City.

Not long afterwards, with respondent's consent, a home was purchased in Reno for $8,300.

This was known as the Marsh avenue property. The deed was made to Mrs. Wilson, “wife of

George P. Wilson.” Respondent testifies that this also was done without his knowledge, and

that the first time he knew of it was after Mrs. Wilson commenced suit for divorce in the fall

of 1933. The Marsh avenue premises constitute the main property in dispute. The money paid

for it was taken from the savings accounts in the Reno banks.

Mrs. Wilson commenced suit for divorce against respondent on October 28, 1933, a little

more than three months before her death. The complaint contains the following paragraph:

“That there is a very considerable amount of community property belonging to the plaintiff and the defendant, same being located in Storey county, Nevada, and in the state of

California, and possibly elsewhere. That the plaintiff asks that the defendant be required to set

forth and describe all of his assets so that this court may determine the amount of community

property owned by the plaintiff and the defendant, and determine what is and what is not

community property. That by reason of the separation which has existed between the parties

for many years, the plaintiff is unable at this time to further describe the assets of the

defendant and the community property owned by the parties.” The only ground for divorce

alleged in the complaint is that the parties “have lived apart for five consecutive years without

cohabitation.” Neither willfull desertion nor extreme cruelty is alleged. The complaint does

not describe or mention any specific article or piece of property, real or personal. Besides adecree of divorce, the complaint prays for permanent alimony and an order “dividing the

community property of the parties upon such terms as is meet, proper and equitable.”

Respondent noticed for hearing a motion for an RUGHUFKDQJLQJWKHSODFHRIWULDORIVDLG

GLYRUFHDFWLRQIURP:DVKRH&RXQW\WR6WRUH\&RXQW\




order changing the place of trial of said divorce action from Washoe County to Storey

County. In support of this motion he made an affidavit on November 2, 1933, which, among

other things, set forth that the divorce action “does not affect any real property or estate right

or interest therein in Washoe county or in any other county other than Storey county,

Nevada.” Respondent's petition for letters of administration, filed February 14, 1934,

specifically mentions the Marsh avenue property as part of the estate left by his deceased

wife, but says nothing as to whether it is community or separate property. The inventory lists

said property as one item of the estate left by Mrs. Wilson, and states that all of the estate is

community property.

The record indicates that the checks drawn by Mrs. Wilson were uniformly connected with

the business of the corporation, or were for household and living expenses. Respondent

appears to have been liberal with her. On a couple of occasions, when she drew about $300

one month and $350 another, respondent informed her that the business would not stand so

much, and thereafter she materially lessened the amounts. When the bank at Virginia City

closed in the fall of 1932, it became necessary for respondent to limit her to $50 and $60 a

month. All things considered, the record shows that respondent provided liberally for Mrs.Wilson until the day of her death. Respondent testified that shortly before the Marsh avenue

property was purchased Mrs. Wilson said she “wanted a home in Reno for both of us.” They

went together to look at the Marsh avenue premises, after having already looked at another

property. Mrs. Wilson wanted respondent to buy a lot next to the Marsh avenue property and

build a store on it. She also wanted him to make other investments in Reno, but he had lived

in Virginia City all his life and built up his business there, and thought best not to invest in

Reno other than for the care and comfort of Mrs. Wilson. When the Marsh avenue property

was purchased, there was sufficient money in the Virginia City account to pay for it; EXW0UV


but Mrs. Wilson used the savings account deposits in Reno for that purpose.

On May 6, 1931, Mrs. Wilson wrote respondent the following letter: “Reno, Nevada, May

6, 1931. George: Your letter of April 28th received some time ago. I can't see how anyone

could manage a home, keep it in good repair as homes should be kept, pay heavy taxes, fire

insurance, life insurance, keep up the car and carry a full coverage on that, for my own

protection as well as other peoples' and not owe any bills on less that $150.00 or $5.00 per

day. If you think it can be done let me know what amount you think one could manage on. I

do all my own work except spade the yard, and mow the lawn. As you said I am aware thestore is making no money. I was aware of that three years ago and could see a little farther

than my nose, when I wanted you to close up the shop when (you) we” (change from “you” to

“we” made by Mrs. Wilson) “had a nice balance in saving and checking and owed no one.

The property on Plumas Street I showed you has increased in value as the Junior High was

built five blocks from there. ‘Nuf sed.' I am drawing $150.00 today as my April bills are due

and I have to pay $65.79 for insurance on the car this month. In the three years I had it,

including the trip to Denver and return, I have run around 16,000 miles, so you see I don't live



in the car. Two years your car ran 30,000 miles in one year. Hope this finds you well again. It

is surely tough to be sick. Gussie”

Mrs. Wilson went to Reno in 1925, and the Marsh avenue property was purchased in 1926.

While she was living there, and until some time in 1929, respondent visited her practically

every Sunday, taking with him on each trip sufficient groceries to last until his next trip. He

also visited her at other times, when business called him to Reno. On one of the Sunday visits(respondent thinks it was in 1929) Mrs. Wilson, according to respondent, told him to take six

bits and JRJHWKLVGLQQHU²VKHZDV³QRWJRLQJWRVWD\LQDQGFRRNGLQQHUIRUPHRQ

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go get his dinner—she was “not going to stay in and cook dinner for me on Sundays.” After

that he discontinued his Sunday visits, and according to testimony given by appellant and her

witnesses, his visits to Mrs. Wilson practically ceased altogether. Respondent positivelydenies this, saying that he continued visiting his wife, though not so frequently as before, “off

and on” until she filed suit for divorce in October, 1933. Mrs. Holland, housekeeper in the

Wilson home at Virginia City since June, 1927, testified that Mrs. Wilson came to Virginia

City and remained at the Wilson home about ten days in the Christmas-New Year season of

1927-1928. She also came to the house on another occasion and stayed four or five

days—Mrs. Holland thinks this was early in 1929. She testified further that Mrs. Wilson

came to Virginia City near the end of August, 1930, to attend the funeral of respondent's

brother. After the funeral, Mrs. Wilson, appellant, and the latter's daughter came to the

Wilson house and had lunch, stayed for awhile after lunch. Mrs. Holland testified that

respondent and Mrs.Wilson appeared to get along “very nice.” Appellant and her witnesses

introduced evidence tending to show that respondent was neglectful and inconsiderate of hiswife. They also testified that respondent had been seen in the company of other women, but

there was no proof of infidelity, or of clandestine meetings with any of them. Mrs. Somers,

who was for a time bookkeeper for the corporation, and also for another period housekeeper

in the Wilson home, testified that so far as she could see everything was harmonious between

respondent and Mrs. Wilson. Respondent testified in part as follows:

“Q. You have heard the testimony of Mrs. Holland about her coming there in ‘29, staying

four or five days in Virginia. Do you remember that incident and what time of year it was? A.

I forgot, I could not remember.

“Q. Do you remember her being there and staying for four or five days? A. Yes, sure.


“Q. When she came there and stayed that time why you went ahead and had ordinary

marital relations? A. What?

“Q. I say, the marital relations were held at that time? A. Yes, she stayed there.



“Q. Just the same as ordinary? A. Yes.

“Q. Well, now, after this 1929, or whatever time it was that she told you she would not

cook, you say you saw her on frequent occasions? A. I would run over very often, if I would

have something to say to her.”

1, 2. It is regrettable that the question whether the property involved in these proceedings

is community or separate property could not have been determined while Mrs. Wilson wasliving. As it is, we must take the testimony as we find it. It is a general rule, established by a

long line of decisions in this court, that the lower court will not be reversed on an issue of fact

where there is substantial evidence to support its findings. Notwithstanding this rule, the

court will reverse where it is very clear that the findings are not supported by the evidence.

The affidavit made by respondent on November 2, 1933, considered with some of the other

evidence, naturally raises some doubt regarding the correctness of the findings of the district

court. Upon careful consideration, however, of all the evidence, we do not feel justified in

disturbing the order and decree appealed from.

3. The contention that the deposits in the Reno banks operated as a gift to Mrs. Wilson is

wholly without merit. And this is true regardless of whether respondent knew that the

deposits were made by Mrs. Wilson in their names instead of that of the corporation.

4. Likewise, the fact that Mrs. Wilson was named as grantee in the deed of the Marsh

avenue property is by no means sufficient to show a gift from respondent to her. 13 R. C. L.

1384, 1385. Nor are the joint bank deposits and said deed, or either of them, sufficient to

show that the moneys deposited in the Reno banks, or the Marsh avenue premises purchased

therewith, were transmuted into the separate property of Mrs.


Wilson. Even if respondent knew that the deed was made to Mrs. Wilson, the presumptionwould still be that it was community property. Milisich v. Hillhouse, 48 Nev. 166, 228 P.

307; 5 R. C. L. 844-846; 31 C. J. 54; Nilson v. Sarment, 153 Cal. 524, 96 P. 315, 126 Am. St.

Rep. 91. This rule has been changed in California by statutory amendment, but the Nevada

statute remains the same as the California statute was before it was amended.

5. All property acquired after marriage is presumed to be community property. Jones v.

Edwards, 49 Nev. 299, 245 P. 292; Barrett v. Franke, 46 Nev. 170, 208 P. 435.

6. The true test of the separate or community character of property acquired during

marriage ordinarily lies in whether it was acquired by community funds and community credit

or by separate funds. Rawlings v. Heal, 111 Wash. 218, 190 P. 237; 31 C. J. 23.

7. The community estate may be vested in either spouse, and the true character of theproperty is to be determined by the nature of the transaction under which it is acquired

without reference to who retains the title. Killian v. Killian, 10 Cal. App. 312, 101 P. 806;

Benson v. Hunter, 23 Ariz. 132, 202 P. 233; Patterson v. Bowes, 78 Wash. 476, 139 P. 225.

In states where the statutes provide that the earnings and accumulations of the wife, while

living separate from the husband, are her separate property, the word “accumulations” applies

to property obtained and held in possession by the wife, while living separate from her

husband, through her own industry, labor, skill, or efforts of any kind; but it does not apply to



property acquired by the wife by purchase with community funds. Union Oil Co. v. Stewart,

158 Cal. 149, 110 P. 313, Ann. Cas. 1912a, 567; 31 C. J. 23.

Whatever is gained by the toil or talent of either spouse belongs to the community.

Malmstrom v. People's Drain Ditch Co., 32 Nev. 246, 107 P. 98; Adams v. Baker, 24 Nev.

375, 55 P. 362.

Generally, property purchased by either husband or ZLIHGXULQJWKHH[LVWHQFHRIWKH FRPPXQLW\LVFRPPXQLW\SURSHUW \²WKH³XOWLPDWHO\GHWHUPLQDWLYHFRQVLGHUDWLRQLQDQ\

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wife during the existence of the community is community property—the “ultimately

determinative consideration in any case being whether the purchase was made with

community or with separate funds.” 31 C. J. 36.

8. Property purchased with the earnings of husband and wife, or the earnings of a husband

or wife, is community property. Winchester v. Winchester, 175 Cal. 391, 165 P. 965;

Ahlstrom v. Tage, 31 Idaho, 459, 174 P. 605; Marsh v. Fisher, 69 Wash. 570, 125 P. 951.

This rule does not apply in case of property purchased with earnings of the wife under

sections 3368 and 3369 N. C. L.

9. When it is made to appear that property was once community property, it will generally

be presumed that it maintains that character until some direct evidence to the contrary is

adduced, and the burden of proof rests on the party claiming the contrary. Laws v. Ross, 44

Nev. 405, 194 P. 465; Barrett v. Franke, 46 Nev. 170, 208 P. 435.

Counsel for appellant cite Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505, and Potter v.

Smith, 48 Cal. App. 162, 191 P. 1023. A reading of those cases will at once disclose that the

facts differ so widely from those in the case at bar as to be of very little assistance to thecourt. In the Goldsworthy case, Mrs. Goldsworthy, after her husband had lost is position at

Ione, left home with his consent and worked for third persons, putting her earnings in a

separate bank account with the knowledge and approval of her husband. At the same time,

she and her husband maintained a joint community account. The evidence in that case further

discloses that Mrs. Goldsworthy paid an indebtedness of her husband out of her separate

account, and that he later repaid her the greater portion of this amount. In the Potter case the

husband assigned notes and funds to his wife. She used the proceeds to purchase real estate

during some twenty years while they were living together. He then left home for fifteen years

and came back after her death to claim the property as community property.


The exception in section 3364 N. C. L. requires not only that the husband live apart from

the wife without such cause as would have entitled him to a divorce, but also that the husband

shall have abandoned her. We do not feel justified in setting aside the finding of the district

court that respondent did not abandon Mrs. Wilson. It was she, not respondent, who,



admitting it was for good reasons, left the domicile at Virginia City and went to Reno. He not

only visited her there, but supported her until her death, regardless of her illness and the loss

of her companionship for a great part of the time. The evidence does not show much interest

on the part of Mrs. Wilson in respondent after 1929. It does not appear that she went to see

him often, or that she tried to persuade him to visit her more frequently. Insofar as there was

any separation, it appears to have been largely voluntary on the part of Mrs. Wilson, if also onthe part of respondent.

Perhaps the strongest circumstance against respondent's position on this appeal is the

affidavit he made on November 2, 1933, in support of his application for a change of venue in

the divorce suit. The explanation offered by respondent is not entirely satisfactory. However,

in addition to bearing in mind the purpose of this affidavit, it is also to be observed that it was

made only five days after respondent was served with summons; that his attorney resided at

Carson City; and that if his testimony is true the thought may never have entered his mind

that title to the Reno property had been taken in Mrs. Wilson's name, in view of the fact that

all the other properties were in the company's name. Looking at the matter from that point of

view, respondent would naturally regard the Marsh avenue property as belonging to the

corporation.10. But there is a further reason why we do not feel disposed to reverse this case because

of said affidavit. It has been decided by this court, as well as by appellate courts of other

states, that the opinion of either spouse as to whether property is separate or FRPPXQLW\LVRI QRZHLJKW


community is of no weight. Barrett v. Franke, 46 Nev. 150, at page 180, 208 P. 435, 31 C.J.

54.Counsel for appellant seem to have the idea that said affidavit is conclusive upon

respondent. They cite Martin v. Dixon, 49 Nev. 161, 241 P. 213, and Peterson v. Pittsburg

Silver Peak Gold Mining Co., 37 Nev. 117, 140 P. 519. But those cases decide simply that

such statements and documents as were there considered, being against the interest of the

party making or executing them, are admissible in evidence against such party. If the lower

court in the case at bar had excluded respondent's affidavit, it would undoubtedly have

constituted reversible error.

The contention that Mrs. Wilson acquired separate title to the property in dispute by

adverse possession or prescription we do not deem sufficiently serious to call for discussion.

The order and decree appealed from are affirmed.

____________

ÐÐÐÐ56 Nev. 368, 368 (1936) Drespel v. DrespelÐÐÐÐ

DRESPEL v. DRESPEL



No. 3075

June 5, 1935. 45 P. (2d) 792.

1. Pleading.

One cannot deny on information and belief matters of public record to which he has access.2. New Trial.Discovery after trial of matters of public record is not ground for new trial, unless, on diligent search

in proper office, such record was not discovered before trial (Comp. Laws 1929, sec. 8876).

3. New Trial.Refusal of new trial applied for on ground of newly discovered evidence held not error, where

affidavits failed to state facts showing that reasonable diligence had been exercised prior to trial to

discover alleged facts contained in affidavits of witnesses whose testimony it was sought to present on

new trial, and all newly discovered evidence was of impeaching character (Comp. Laws 1929, sec. 8876).


4. New Trial.Granting of new trial is largely in trial judge's discretion, particularly where trial judge has

opportunity for balancing weight and credibility of opposing affidavits in passing on motion.

5. Divorce.In divorce suit, plaintiff's residence is a fact question.

6. Divorce.Refusal to make allowances to wife for attorney's fee and other expenses incident to motion for new

trial in husband's divorce suit on ground of existence of stipulation as to attorney's fees and court costs

held error, since stipulation did not preclude court from making further allowances for good cause shown.

7. Divorce.Refusal to make allowances to wife for attorney's fee and other expenses incident to motion for new

trial in husband's divorce suit on ground that it did not appear that fees of attorney pressing motion for

new trial had not been paid or arranged for held error, where defendant swore she was without means to

prosecute motion.

Appeal from Second Judicial District Court, Washoe County; L. O. Hawkins, Judge

Presiding.

Action by Harry Drespel against Frances B. Drespel. Judgment for plaintiff, and, from

orders denying a new trial and counsel fees and court costs in prosecuting motion for new

trial, defendant appeals. Affirmed in part; reversed in part and remanded.

R. K. Wittenberg, for Appellant:

Assuming that the stipulation as to allowances is valid, nevertheless, it does not by its

terms contemplate a motion for new trial, and therefore it should not bar such motion for

further allowances. It could only be valid as toward the entry of an order by the court ordering

allowances based thereon, and the court had authority to change such order at any time upon

proper showing. 19 C. J. 241; Kapp v. District Court, 31 Nev. 444, 103 P. 235.



It can certainly be inferred from appellant's affidavits that her present attorney had not

been paid and that no satisfactory arrangement had been made relative to his fee. One of her

affidavits states that she “was without VXIILFLHQWPHDQVSURSHUW\RUFUHGLWZLWKZKLFKWR SURVHFXWHWKHPRWLRQIRUQHZWULDODQGWKDWVKHLVGHSHQGHQWXSRQIULHQGVDQG

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sufficient means, property or credit with which to prosecute the motion for new trial * * * and

that she is dependent upon friends and relatives for the common necessaries of life.”

It is undisputed that matters contained in all the affidavits were not called to the attention

of the defendant wife nor to her counsel prior to the trial. A party to a suit may not be accused

of lack of diligence when he possesses no means of knowing that the evidence subsequently

discovered was previously obtainable. Henderson v. Edwards (Iowa), 183 N. W. 583, 16 A.

L. R. 1090.

The case of State v. Stowe (Wash.), 28 P. 337, lays down the rule that no fixed standard

can be established for the measurement of every case, but each case must be governed by the

circumstances surrounding it. Considering the circumstances of this case, the defendant wife

was under the handicap of facing trial two thousand miles from her home, that far from the

source of the testimony offered on the motion for a new trial, and clearly under the handicap

of lack of funds with which to defend the action.

Even assuming that the proper diligence was not shown, still a new trial should be granted.

Beauley v. Beauley, 190 N. Y. S. 129.

While an individual may testify to an intention to acquire a domicile, such intent is more

satisfactorily shown by acts, not words. Bowen v. Com., 126 Va. 182, 101 S. E. 232; In re

Harkness Estate, 170 N. Y. S. 1024; Gallagher v. Gallagher (Tex.), 214 S. W. 516.It must be remembered that all the new facts contained in the af fidavits relate to the bona

fides of the residence, a question of the court's jurisdiction over the subject matter. Latterner

v. Latterner, 51 Nev. 285, 274 P. 194. It is too well settled for argument that jurisdiction of

the subject matter of an action cannot be conferred upon a court by consent of the parties. 15

C. J. 804. Is there more reason for holding that such jurisdiction could be conferred by lack of

diligence? 3ODWW6LQDLIRU5HVSRQGHQW


Platt & Sinai, for Respondent:

There being substantial evidence upon which to base the finding and conclusion of the

court upon the issuable fact of domicile of the plaintiff, and there having been likewise a

conflict of evidence upon it, it is confidently believed that this honorable court, in the light of

precedent and authority, will not disturb the findings and conclusions of the trial court.

McNee v. McNee, 49 Nev. 90, 237 P. 534; Walker v. Walker, 45 Nev. 105, 198 P. 433; Black

v. Black, 48 Nev. 220, 228 P. 889; Duplantis v. Duplantis, 50 Nev. 234, 255 P. 1014; Miller



v. Miller, 37 Nev. 258, 142 P. 218; Murray v. Osborne, 33 Nev. 267, 111 P. 31; Albee v.

Albee, 38 Nev. 191, 147 P. 452.

Appellant's counsel has included in his brief an assignment of error addressed to the

question of allowances, court costs, attorney's fees, etc. It will be noted that this appeal is not

upon the merits as such, but is restricted to the single point of residence. We are, therefore, of

the opinion that no other question is involved.The additional evidence offered in support of the motion for a new trial went simply to the

one point as to whether the plaintiff's absence from New York was temporary. In this respect

it was purely cumulative. 46 C.J. 271.

The defendant did not show proper diligence in attempting to procure the additional

evidence on the trial in chief. She had lived with the plaintiff as his wife for many years, was

familiar with his practice, his office equipment, and was undoubtedly familiar with the means

by which he was authorized by law to practice dentistry in a particular jurisdiction. She and

her attorneys must likewise have been familiar with the fact that there was a board of dental

examiners of the State of New York, and that the records of said board were public records

and readily available for inspection. Likewise, not a single fact is stated in defendant's

affidavit showing a single effort was made by the defendant or her attorneys to produce theevidence for the trial in chief.


Certainly the parties, as well as the court, would be concluded by the stipulation entered

into with respect to suit money, attorney's fees, etc. There is nothing in the record at all to

show that such stipulation was forced or unconscionable, or that it did not meet with the

entire approval of the parties and their then counsel.

OPINION


Plaintiff recovered judgment in a divorce action. Defendant moved for a new trial upon the

grounds of newly discovered evidence and for counsel fees and court costs in prosecuting

said motion for a new trial. The court denied all the motions, and the defendant has appealed.

We will first dispose of the appeal from the order denying the motion for a new trial.

Pursuant to our civil practice act, a new trial may be granted upon the ground of newly

discovered evidence which the moving party could not, with reasonable diligence, have

discovered and produced at the trial. Section 8876 N. C. L.Defendant's affidavit in support of her motion for a new trial which was made and

evidently prepared in New York, states that she had informed her attorney “of the facts of

newly discovered evidence and of facts relating to the entire matter, and had been by him

advised that she has proper and sufficient grounds for a new trial in said action and a

meritorious defense thereto.”

There is no statement of facts in the affidavit showing that reasonable diligence had been

exercised by the defendant prior to the trial to discover the alleged facts contained in the



affidavits of the respective affiants whose testimony it is sought to present upon a new trial,

nor is there an intimation of such diligence.

1. The trial judge, in denying the motion for a new trial, held that all of the proposed new

evidence, except WK DWSHUWDLQLQJWRDFHUWDLQSXEOLFUHFRUGZDVFXPXODWLYHDQGKHQFH FRXOGQRWLQIOXHQFHWKHFRXUWLQSDVVLQJXSRQWKHPRWLRQLIRWKHUZLVHHQWLWOHGWR

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that pertaining to a certain public record, was cumulative, and hence could not influence the

court in passing upon the motion, if otherwise entitled to consideration. As to the matter of

record which is kept pursuant to the law of New York, he seems to have been of the opinion

that the defendant was chargeable with notice of it. It is a well-known rule of pleading that

one cannot deny on information and belief matters of public record to which he has access. 49

C.J. 266; 1 Ency. Pl. & Pr. 813; Peacock v. U. S. (C. C. A.) 125 F. 583; Harley v. Plant, 210

N.Y. 405, 104 N. E. 946.

2. The record in question is alleged to have been made two months prior to the trial. The

rule applicable to the situation presented is correctly stated in 46 C. J. p. 256, as follows:

“The discovery after the trial * * * or of any other matters of public record, is not ground for

new trial, unless, on diligent search in the proper office, such record was not discovered

before the trial,” citing, among others, New York cases.

3, 4. The affidavits in the record, of the various witnesses, offered in support of the motion

based on newly discovered evidence, were executed within a few weeks after the trial, which,

of itself, indicates that reasonable diligence was not used prior to the trial to discover the

evidence offered. 46 C. J. p. 255

This court, in Pinschower v. Hanks, 18 Nev. 99, 1 P. 454, 457, in passing upon thesufficiency of an affidavit offered in support of a motion for a new trial, based on the grounds

of newly discovered evidence, said: “The statement in the affidavit of defendant's attorney,

that ‘he diligently searched for testimony to establish the defense made by the amended

answer in this action,' and other like averments as to the diligence used by the defendant and

the Coleman Bros., is too general. The acts performed by them should be particularly stated,

so as to enable the court to determine whether the conclusions stated in the affidavit are

supported by the facts. 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 EHHQFRXUDJHGDV H[SHULPHQWV


be encouraged as experiments. A party is not allowed to present his case by piecemeal; to

take a part of the facts first, and then, if he fails, apply for a new trial, and seek to strengthen

his case by a statement of other facts which were reasonably within his power to present at

the first trial. He must make diligent search and inquiry in advance of the trial, and be able to



show, to the satisfaction of the court, that he used reasonable diligence.”

In Robinson M. Co. v. Riepe et al., 37 Nev. 27, 138 P. 910, 913, in considering such an

affidavit, the court said: “The declarations of diligence in this affidavit are mere conclusions,

and set out no showing of diligence or facts from which diligence might be inferred. Where

newly discovered evidence is asserted as grounds for a new trial, the affidavit of the moving

party is the basic thing upon which a new trial may be granted, because it is in that that a trialcourt must find the essential elements necessary to authorize it to act in granting a new trial,

and, unless these essentials are set forth, the court is not warranted in disturbing the

judgment. Ward v. Voris, 117 Ind. 368, 20 N. E. 261.”

All of the so-called newly discovered evidence is of an impeaching character, as to which,

as was observed in the case last cited, “the trial judge was in a position to know whether or

not it was true, and his refusal to grant a new trial, if the proposed newly discovered evidence

was of an impeaching nature, was no abuse of discretion. Whise v. Whise [36 Nev. 16], 131

P. 967, 44 L. R. A. (N. S.) 689; Armstrong v. Yakima Hotel Co. [75 Wash. 477], 135 P.

233.”

But counsel for defendant calls our attention to the case of Beauley v. Beauley (Sup.) 190

N. Y. S. 129, which he says is authority for the proposition that lack of diligence will not justify the denial of a new trial in a divorce case where the state is an interested party.

The facts of that case are very unusual. In fact, the court observed that even with due

diligence the defendant could not have procured certain of the evidence she UHOLHGXSRQDVD JURXQGIRUDQHZULDO


relied upon as a ground for a new rial. In any event, the reasoning of this court in the case of

Pinschower v. Hanks, supra, quoted above, appeals to us as encouraging a wise policy even indivorce suits. In the instant case several of the affidavits relied upon were by relatives of the

defendant, concerning a posted placard which anyone might have put up; such evidence is too

easily manufacture. Furthermore, the trial court had an opportunity to observe the defendant

and her sister, who came to Nevada for the trial and who testified in the case in behalf of the

defendant. The granting of a new trial is largely in the discretion of the trial judge (46 C. J.

250), particularly, as said in Cooper v. Kellogg (Cal. Sup.) 42 P. (2d) 59, 63, where the “trial

judge has an opportunity for balancing the weight and credibility of the opposing affidavits in

passing upon the motion.”

Counsel calls our attention to the case of Henderson v. Edwards, 191 Iowa, 871, 183 N.

W. 583, 16 A. L R. 1090, as laying down a rule for determining if proposed newly discoveredevidence is cumulative. This court recognized the rule therein stated in Gray v. Harrison, 1

Nev. 502, which was approved in Wall v. Trainor, 16 Nev. 131.

We do not find it necessary to determine if the rule is applicable, since the court found there

had been no showing of reasonable diligence to procure the evidence in question before the

trial.

5. The question of residence of a plaintiff in a divorce suit is a fact to be proven in the

same manner as any other fact alleged in the complaint. Walker v. Walker, 45 Nev. 105, 198



P. 433; Confer v. District Court, 49 Nev. 18, 234 P. 688, 236 P. 1097.

We cannot say that the trial court abused its discretion in denying the motion for a new

trial.

6, 7. We come now to the contention that the court erred in refusing to make allowances to

defendant for an attorney's fee and to cover other expenses incident to the making of her

motion for a new trial.It appears that counsel other than the one now DSSHDULQJIRUWKHGHIHQGDQWDSSHDUHGLQ

WKHWULDOFRXUWLQKHUEHKDOI


appearing for the defendant appeared in the trial court in her behalf. After a motion for

allowances had been made by her then counsel, a written stipulation was entered into, fixing

the allowances, wherein a flat fee was agreed upon. Nothing was stated in the stipulation

about the fee agreed upon covering the making of a motion for a new trial and arguing thesame, in the event the decision should be against the defendant. Subsequent to the decision in

favor of the plaintiff, defendant's attorney during and prior to the trial withdrew from the case,

and her present counsel entered it and made a motion for allowances of attorney's fee and

costs incident to the making of the motion and arguing the same.

Affidavits as to the financial condition of the respective parties were filed in the matter.

The trial court, in disposing of the motion, did not consider the question of financial ability.

The affidavits filed by the parties would indicate that both are of very limited means. In the

recent case of Lamb v. Lamb, 55 Nev. 437, 38 P. (2d) 659, we dealt with this situation.

The reason assigned by the court for refusing to grant any allowance is the fact that a

stipulation had been entered into between the parties as to attorney's fees, court costs, etc.,

and for the further reason that it nowhere appears that the fees of the attorney pressing themotion for a new trial had not been paid or arranged for. Even had the court made an order as

to these matters, it might have, for good cause, granted further allowances, and we do not

think a stipulation such as the one entered into precludes the court making further allowances

for good cause shown. The court is certainly not bound by an agreement of the parties as to

alimony. Lewis v. Lewis, 53 Nev. 398, 2 P. (2d) 131; Holmes v. Holmes, 186 Ark. 251, 53 S.

W. (2d) 226; Duss v. Duss, 92 Fla. 1081, 111 So. 382; Worthington v. Worthington, 224 Ala.

237, 139 So. 334; Wheeler v. Wheeler, 167 Okla. 598, 32 P. (2d) 305. The same reasoning

applies to a stipulation as to allowances.

As to the other reason, we do not think it sound.


The defendant, in support of the motion, swore she was without means to prosecute the

motion. Had she already provided funds to prosecute the motion, she and her attorney would

certainly be guilty of an attempt to impose upon the court—fraud in fact—by making the



motion and supporting it by affidavit. We think the court should have presumed, in the

circumstances, that no provision had been made to cover the allowances requested.

It is ordered that the judgment and the order appealed from, denying the motion for a new

trial, are affirmed. It is further ordered that the order denying allowances, except as to funds

for transcribing the testimony taken at the trial, be and the same is reversed, and the case is

remanded to the trial court, to pass upon the said motion in accordance with the views hereinexpressed.

On Petitions for Rehearing

September 10, 1935.

Per Curiam:

Good cause appearing therefore, it is ordered that the petition for a rehearing on behalf of

the appellant be and is hereby denied, and that the petition for a rehearing on behalf of the

respondent be and the same is hereby granted.

On Rehearing

February 4, 1936.


Civil practice act does not contemplate that appeal may be taken from every order

made, but does contemplate that upon appeal from a judgment, supreme court may

review certain intermediate orders (sec. 8887 N. C. L., Stats. 1935, chap. 90, sec. 12).


Where trial judge was extremely careful to limit certificate settling bill of exceptions, as to testimony, to question of residence only, held there was nothing in

such bill of exceptions to enable supreme court to determine whether or not order made

refusing allowances to appellant was erroneous.


An order may be proper though a wrong reason may be given for it.


4. Appeal and Error.On appeal, order must affirmatively appear to justify a reversal.

On rehearing granted on petition of respondent. Order heretofore entered, reversing a

portion of the order appealed from denying allowances, vacated, and said order as to

allowances affirmed in its entirety.

R. K. Wittenberg, for Appellant.



Platt & Sinai, for Respondent.

OPINION

By the Court, Coleman, J.:We granted a rehearing in this case to consider the contention of respondent to the effect

that there is no record before us upon which we could properly determine whether or not the

lower court erred in refusing to make allowances to appellant for an attorney's fee and to

cover other expenses incident to the making of her motion for a new trial.

The record shows that the notice of appeal was served and filed on July 31, 1933, and that

thereafter, on May 25, 1934, the bill of exceptions was settled by the trial judge.

The certificate settling the bill of exceptions, omitting formal caption, is as follows:

“The foregoing Bill of Exceptions hereby is certified as correct, the same being copies of

the pleadings pertinent to the Appeal and a transcript of only those portions of the testimony

pertinent to the Appeal upon the issue of the residence of plaintiff and certified by the Court

Reporter to be a full, true and correct transcript of such portions, and containing all of thematerial evidence upon that issue and all of the pleadings, records and papers in the

proceedings and in the trial and in the hearing of the Motion for a new trial; and containing all

the material rules, decisions, orders, judgments or actions of the Court upon that issue, and

that VDLG%LOORI([FHSWLRQVZDVVHUYHGDQGILOHGZLWKLQWKHWLPHSURYLGHGE\ODZRUZLWKLQ WKHWLPHDOORZHGE\VWL SXODWLRQVH[WHQGLQJWLPHDQGVDLG%LOORI([FHSWLRQVKDVEHHQDQG KHUHE\LVVHWWOHGDQGDOORZHGDQGDVVXFKLWVKDOOEHDQGEHFRPHSDUWRIWKH5HFRUGRQ

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said Bill of Exceptions was served and filed within the time provided by law, or within the

time allowed by stipulations extending time; and said Bill of Exceptions has been and hereby

is settled and allowed and as such it shall be and become part of the Record on Appeal in the

suit entitled above.

“Dated: May 25th, 1934”

The certificate as originally presented to the trial judge for his signature was evidently

drafted on a typewriter at the instance of counsel for appellant, since the words in the

certificate which are underscored were interlined in the handwriting of the trial judge.

It is the contention of counsel for respondent that in view of the fact that appellant did not

appeal from the order refusing to make the allowances mentioned, and the further fact that the

trial judge was extremely careful to limit the certificate settling the bill of exceptions, as to

the testimony, to the question of residence only, there is no record before us upon which we

can review the order of the trial court relative to allowances.

1. As to the contention that appellant did not appeal from the order refusing to make the

allowances, we may say that it is not contemplated by our civil practice act that an appeal

may be taken from every order made, but it does contemplate that upon an appeal from a



judgment this court may review certain intermediate orders. (Sec. 8887 N. C. L., Stats. 1935,

chap. 90, sec. 12.) The motion of appellant for allowances, and the affidavits mentioned

therein, in support of such motion, and some affidavits resisting the same, are in the files.

Whether the trial judge was of the opinion that, in view of the fact that the appellant failed to

state in her notice of appeal that she appealed from the order mentioned, this court would be

precluded from considering the ruling on that point, or whether he was of the opinion that thetendered bill of exceptions did not contain all the affidavits and testimony on the point, we

cannot say.

2. However, we think the contention that there is nothing in the bill of exceptions, as

certified to by WKHWULDOMXGJHWRHQDEOHXVWRGHWHUPLQHZKHWKHURUQRWWKHRUGHUZKLFK ZDVPDGHZDVHUURQHRXVLVZHOOIRXQGHG


the trial judge, to enable us to determine whether or not the order which was made waserroneous is well founded.

In our former opinion we did not pass upon the sufficiency of the showing made by

appellant to entitle her to the allowances sought, but in consideration of the limitations of the

certificate to the bill of exceptions we cannot say that any showing whatever was made

entitling the appellant to allowances. This being true, there is no basis justifying a reversal of

the order.

3, 4. An order may be proper though a wrong reason may be given for it. Richards v.

Vermilyea, 42 Nev. 294, 300, 180 P. 121. On appeal, error must affirmatively appear to

justify a reversal. Water Co. v. Belmont Dev. Co., 50 Nev. 24, 249 P. 565.

The order heretofore entered herein, reversing a portion of the order appealed from

denying allowances, is hereby vacated, and said order as to allowances is affirmed in itsentirety.

____________

ÐÐÐÐ56 Nev. 380, 380 (1936) George et al. v. WentworthÐÐÐÐ

GEORGE Et Al. v. WENTWORTH

No. 3122

February 4, 1936. 53 P. (2d) 1193.

1. Mechanics' Liens.Statute relieving owner of property from liability for improvements thereon by posting written notice

to that effect upon property and filing duplicate original thereof with county recorder held mandatory

(Comp. Laws, secs. 3735, 3739 et seq., 3743, 4122).

2. Mechanics' Liens.



Owner of property failing to file with county recorder duplicate of notice of nonliability for

improvements, which had been posted on property held liable for such improvements, since statutes

which relieve owner from liability for improvements on his property must be strictly construed (Comp.

Laws, secs. 3735, 3739 et seq., 3743, 4122).

Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.


Action by H. G. Wentworth against Jane George and another to foreclose laborers' liens.

From a judgment for plaintiff, named defendant appeals. Affirmed.

C. E. Robins and Thos. J. Salter, for Appellant:

The 1917 amendment to sec. 3743 N. C. L., providing for the recording of a duplicate

original of the notice with the county recorder, was for the sole purpose of operating as

prima-facie evidence of such posting, and not for the purpose of giving the miner anyadditional notice. Only one method of giving notice to the miner would ever be necessary in a

case of this kind. The notice was before him during all the hours he worked upon the

property. Another notice, buried in the archives of the recorder's office, could only be

cumulative, and could not add to, or strengthen, his knowledge of the owner's property

nonliability. Nichols v. Levy, 55 Nev. 310, 32 P. (2d) 121; Reno Plumbing & Heating Co. v.

Bickel et al., 55 Nev. 367, 35 P. (2d) 303. As we read the cases cited, the workman is entitled

to have the notice posted on the ground, if the owner is to escape liability, and he is not

required to search the county recorder's office to ascertain whether there is any prima-facie

evidence of it there.

The filing of the duplicate notice is not constructive notice to anyone. In view of the fact

that the filing is of only prima-facie value to the owner, such owner receiving only the benefit

thereby of shifting the burden of proof of the actual posting to the workman, and the gist of

the whole matter being whether the posting on the ground was effectively made, then it

cannot be contended in reason that the failure of the owner to avail himself of this small

benefit, conferred upon him by this amendment, could be so enlarged in favor of the lien

claimant that he could claim the benefits of the amendment in one respect to himself and in

the same breath disclaim them as to the owner. Ford v. Campbell, 29 Nev. 578, 92 P. 206;

Gibson v. Hjul, 32 Nev. 360, 108 P. 759.


H. J. Murrish, for Respondent:

In the State of California, where since the year 1911 the notice of nonliability must be

posted on the property and a verified copy thereof filed for record in the county recorder's

office, it is held to be just as necessary to comply with the provisions of the statute regarding

the filing for record as with that regarding the posting of the notice on the ground. Pasqualetti



v. Hilson, 185 P. 693; Leoni v. Quinn, 209 P. 551; Flora v. Hankins, 268 P. 331; Combys v.

Green Mill, Inc., 290 P. 620; Barr Lumber Co. v. Perkins, 295 P. 552; Hammond Lumber Co.

v. Goldberg, 13 P. (2d) 815.

Sections 3743 and 4122 N. C. L. are not susceptible of similar construction. In the case of

a mining location, the statutes of the United States and of the state prescribe how a valid

location may be perfected, and under neither is it required, in order to make a valid location,that the certificate of location be recorded, nor is there any provision that unless such

certificate is recorded the location is invalid.

OPINION

By the Court, Ducker, C.J.:

This appeal is from a judgment and decree of foreclosure of labor liens in an action

brought by respondent for himself and as the assignee of seven other lien claimants. The labor

for which the liens were filed was performed at the instance and request of the American

Milling & Mining Company, lessee, upon a certain claim belonging to appellant. Among

other findings, the district court found as follows: “That it is true that Jane George, defendant,posted in a conspicuous place upon said property and land, within three days after she had

obtained knowledge of work and labor performed, or about to be performed, as alleged in the

first amended complaint herein, on said property a notice in writing to the effect that she

would not be UHVSRQVLEOHIRUWKHVDPHEXWWKDWVKHIDLOHGWRDQGQHYHUGLGILOHD GXSOLFDWHRULJLQDORIVXFKSRVWHGQRWLFHZLWKWKHUHFRUGHURIWKHFRXQW\ZKHUHVDLG SURSHUW\DQGODQGLVVLWXDWHGWRJHWKHUZLWKDQDIILGDYLWDWWDFKHGWKHU HWRVKRZLQJVXFK SRVWLQJRIWKHRULJLQDOQRWLFHDQGWKDWRQWKHGGD\RI0D\SODLQWLIIILOHGZLWKWKH FRXQW\UHFRUGHURI3HUVKLQJFRXQW\1HYDGDDFODLPRIOLHQDFRS\RIZKLFKZDVDWWDFKHG

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responsible for the same, but that she failed to, and never did, file a duplicate original of such

posted notice with the recorder of the county where said property and land is situated,

together with an affidavit attached thereto, showing such posting of the original notice; and

that on the 2d day of May, 1934, plaintiff filed with the county recorder of Pershing county,

Nevada, a claim of lien, a copy of which was attached to the amended complaint on file

herein, made a part thereof, marked ‘Exhibit A.'”

The failure of appellant, as so found, to make such filing presents the only question on

review. Appellant contends that the posting alone, as found by the lower court, was sufficientnotice of nonliability to prevent the liens from attaching, and that, therefore, the decree

rendering her property subject to them is against law. Section 3735 N. C. L. authorizes a lien

upon a mine for work or labor performed in or upon a mine, and section 3739 N. C. L., and

succeeding sections, provide the manner of perfecting a lien authorized by the foregoing

section.

The statute directly involved, which provides for notice of nonresponsibility, reads: “Every

building or other improvement mentioned in section 1 of this act [section 3735 N. C. L.],



constructed upon any lands with the knowledge of the owner or the person having or claiming

any interest therein, shall be held to have been constructed at the instance of such owner or

person having or claiming any interest therein, and the interest owned or claimed shall be

subject to any lien filed in accordance with the provisions of this chapter, unless such owner

or person having or claiming an interest therein shall, within three days after he shall have

obtained knowledge of the construction, alteration or repair, or the intended construction,alteration or repair, give notice that he will not be responsible for the same, by posting a

notice in writing to that effect in some conspicuous place upon said land, or upon the building

or other improvement situate thereon, and also VKDOOZLWKLQILYHGD\VDIWHUVXFKSRVWLQJILOH DGXSOLFDWHRULJLQDORIVXFKSRVWHGQRWLFHZLWKWKHUHFRUGHURIWKHFRXQW\ZKHUHVDLGODQG RUEXLOGLQJLVVLWXDWHGWRJHWKHUZLWKDQDIILGDYLWDWWDFKHGWKHUHWRVKRZLQJVXFKSRVWLQJ

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shall, within five days after such posting, file a duplicate original of such posted notice withthe recorder of the county where said land or building is situated, together with an affidavit

attached thereto showing such posting of the original notice. Such filing shall be prima-facie

evidence of said posting.” Section 3743 N. C. L.

1. That part of the section providing for the filing of a duplicate original of the posted

notice with the recorder was added by amendment in 1917 (chapter 232), and appellant insists

that the sole purpose of this later legislation was to enable the owner to establish prima-facie

evidence of the due posting of the notice. It is argued that it is intended for his benefit and

that the filing may be done or omitted at his pleasure. We are not inclined to give the

provision such restricted significance. It is clearly mandatory, and while designed to establish

a rule of evidence, was also intended to impose an additional requirement upon an owner inorder to exempt his property from the effect of a lien claim.

Appellant finds analogy in the provision for recording a mining claim (section 4122 N. C.

L.) which prescribes that: “Any record of the location of a lode mining claim which shall not

contain all the requirements named in this section shall be void. * * * And any such record *

* * shall be prima-facie evidence of the facts therein stated.” In this connection we are

referred to the case of Ford v. Campbell, 29 Nev. 578, 92 P. 206, in which it was held that

such recording is not essential to the validity of a location.

The provision for recording a mining claim and the provision for filing a notice of posting

are not similar.

The intention on the part of the lawmakers, in enacting the former, that a failure to comply

with the requirement would affect only the record, and the rule of evidence designed for the

benefit of the locator, is clear. On the other hand, an intention to limit the effect of a failure to

file a duplicate notice solely to depriving the lien claimant of so proving a prima-facie case is

not apparent in the statute before us.




2. The statute in express terms declares that unless both the posting and filing are done as

prescribed, the interest owned or claimed in the property shall be subject to any lien duly

filed. This part of the section corresponds exactly in its mandatory f orm, and substantially in

other respects, to the California statute (section 1192 Code of Civil Procedure), and the courts

of that state hold both posting and filing necessary on the part of the owner of the premises to

relieve himself from liability. Pasqualetti v. Hilson, 43 Cal. App. 718, 185 P. 693; Leoni v.

Quinn et al., 189 Cal. 622, 209 P. 551. See, also, Barr Lumber Co. v. Perkins (Cal. App.), 295

P. 552.

But appellant pins her claim that it was not intended that the filing should be essential to

secure nonliability on the sentence in the section: “Such filing shall be prima-facie evidence

of said posting,” which does not appear in the California statutes. This part of the section

means exactly what it says. It cannot be construed further to vary the plain meaning and

command of the provisions that precede it in the statute. It prescribes merely a rule of

evidence. Provisions by which the owner may escape liability for improvements on his

property must be strictly construed. Barr Lumber Co. v. Perkins (Cal. App.) 295 P. 552;

Pasqualetti v. Hilson, 43 Cal. App. 718, 185 P. 693.We are referred to the cases of Nichols v. Levy, 55 Nev. 310, 32 P. (2d) 120, 121, and

Reno Plumbing & Heating Co. v. Bickel et al., 55 Nev. 367, 35 P. (2d) 302, 303, and it is

insisted that it is implied from the reasoning of the court in those cases that filing is not

essential to effect nonliability. It is sufficient to say in this regard that the point here under

consideration was not involved or determined in either of those cases. This court will not hold

itself bound by any part of an opinion which was not needful to the determination of the

particular question involved.

The judgment is affirmed.

____________

ÐÐÐÐ56 Nev. 386, 386 (1936) State v. Squier, et al.ÐÐÐÐ

STATE v. SQUIER, Et Al.

No. 3116

February 5, 1936. 54 P. (2d) 227.

1. Criminal Law.Conviction will not be set aside for insufficiency of evidence if it is supported by any substantial

evidence.

2. Jury.Information charging defendants with violently and feloniously making assault on female named and

forcibly ravishing her did not change offense “punishable with death” within statute relating to

peremptory challenges (Comp. Laws, sec. 10942).

Information, after stating time and place of alleged offense, charged that defendants did

willfully, unlawfully and feloniously in and upon named female, not then and there being the



wife of either of defendants, violently and feloniously make an assault and her, the said person

named, then and there forcibly and against her will did ravish and carnally know and accomplish

with her an act of sexual intercourse. Comp. Laws, sec. 10942, provides that defendant and state

are each entitled to eight peremptory challenges if offense charged is punishable with death.

3. Criminal Law.

Judgments are reversed only for prejudicial error (Comp. Laws, sec. 11266).

4. Jury.Where defendants did not seek to peremptorily challenge more than four jurors, they waived any right

they may have had to more than four challenges (Comp. Laws, sec. 10942).

5. Criminal Law.Sixth amendment to federal constitution relating to speedy trial does not apply to trials in state courts

(Const. U. S. Amend. 6).

6. Criminal Law.One charged with the commission of a crime is entitled to speedy trial (Comp. Laws, secs. 10654,

11193, 11194).

7. Criminal Law.In statute providing for dismissal where accused is not brought to trial at “next session of court,”

quoted phrase alludes to a session when the court is organized to hear and determine criminal cases, when jury is present (Comp. Laws, sec. 11194).

8. Criminal Law.Where date of alleged crime was May 17 and court first fixed criminal case for trial July 9, but on

July 3 court of its own motion continued trial to September 17 because other cases had arisen which

would have necessitated jury session ODVWLQJILYHZHHNVGXULQJKRWZHDWKHUULJKWWRVSHHG\

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lasting five weeks during hot weather, right to speedy trial was not denied (Comp. Laws, secs. 8469,11194).

9. Criminal Law.

Defendant cannot require that court in fixing date of trial disregard condition of calendar, pendency of

other cases, public expense and convenience, or health of judge, court officers, and jurors (Comp. Laws,

sec. 11194).

10. Criminal Law.In rape prosecution, prosecutor's reference in oral argument to a murder case held not prejudicial,

where court of its own motion stated, “Confine yourself to arguing this case.”

11. Criminal Law.In rape prosecution, prosecutor's reference to defendant in oral argument as “this tramp” held not

prejudicial, where court sustained objection to language, and evidence showed defendant's occupation.12. Criminal Law.

Court's use of words “this fellow” in sustaining objection to prosecutor's reference to defendant as

“this tramp” held not prejudicial.

13. Criminal Law.Minimum term for attempt to commit rape should be fixed at definite time not less than one year nor

more than five years (Comp. Laws, secs. 9975, 11058).

14. Criminal Law.



Supreme court has authority to modify as well as to affirm or reverse judgments appealed from in

criminal cases (Comp. Laws, sec. 11101).

15. Criminal Law.Supreme court would not disturb maximum term fixed by trial court where assignment of error related

only to minimum term, and no exception or complaint was made regarding maximum term (Comp. Laws,

sec. 11101).

Appeal from Eighth Judicial District Court, Clark County; L. O. Hawkins, Presiding

Judge.

Roy Squier and another were convicted of an offense, and they appeal. Judgment

modified in part and affirmed in part.

Guy E. Baker and Harold M. Morse, for Appellants:

The verdict of the jury in this case found the defendants jointly guilty of an attempt to

commit rape. In order to predicate such a verdict there must be proof, beyond a reasonable

doubt, of an overt act or acts to commit the crime. Mere preparation accompanied by WKUHDWV DQGQRRYHUWDFWVLVQRWVXIILFLHQWRQZKLFKWRSUHGLFDWHDYHUGLFWRIJXLOW\RIWKHFULPHRI

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threats, and no overt acts, is not sufficient on which to predicate a verdict of guilty of the

crime of attempt to commit rape. State v. Pickett, 11 Nev. 255; State v. Lung, 21 Nev. 209,

28 P. 235.

Clearly, under the information in this case, the defendants were entitled to eight

peremptory challenges (sec. 10942 N. C. L.), and the denial to the defendants of theirstatutory right of eight peremptory challenges is an abridgment of their substantial rights.

That a person charged with a crime is entitled to a speedy trial is well settled. It is a right

guaranteed by the federal organic law, by the organic law of the several states, and by express

statutory provision in Nevada, and has been so recognized and determined by our court. Ex

Parte Stanley, 4 Nev. 113; Ex Parte Larkin, 11 Nev. 90; Ex Parte Moriarity, 44 Nev. 164, 191

P. 360; Ex Parte Maxwell, 11 Nev. 428; Sections 10654, 11193, 11194 N. C. L.

The district attorney's reference to a recent murder case, in his argument to the jury, would

inflame them, and was very prejudicial to any fair consideration that they might give the case

they were trying. And, although the court admonished the district attorney to confine himself

to the argument of the case on trial, instead of doing so he referred to one of the defendants as“a tramp that's been around.” To both of which remarks the defendants objected and

excepted, and the only admonition the court gave was that “there is no evidence in the case of

this fellow becoming a tramp.” We also feel that the remark of the court in calling the

defendant a “fellow” was also prejudicial error. The word “fellow,” as defined in Funk &

Wagnalls New Standard Dictionary, is an objectionable expression.

If the ruling of the trial court denying the eight peremptory challenges was correct, then the

trial court could not, in the same breath, use life imprisonment or death as the maximum



sentence, and under that ruling the maximum term would be five years and the minimum

term not less than one year, especially in view of section 10095 N. C. L.


Gray Mashburn, Attorney-General; W. T. Mathews and Julian Thruston, Deputy

Attorneys-General; Roger Foley, District Attorney; and Wm. L. Scott, Deputy District

Attorney, for the State:

A review of the transcript of the testimony will disclose sufficient evidence to support the

verdict in this case.

We have been unable to find a Nevada case construing our section 10942 N. C. L. in

regard to the points herein involved, but the question has been before the California courts on

numerous occasions, and, except for the number of challenges allowed, the California statute

is substantially the same as ours. See People v. Clough, 59 Cal. 438, at 441; People v. Logan,56 P. 56; People v. Riley, 3 P. 413; People v. Fultz, 41 P. 1040; People v. Purio, 194 P. 74.

We might say, as was said in State v. Collins, 163 P. 102, that it does not appear from the

record in this case that the defendants exercised or offered to exercise the right of challenge to

any particular juror, or that when the jury were sworn they had exhausted any of the

challenges to which they were entitled.

We contend that under the rule laid down in Ex Parte Stanley, 4 Nev. 113, the defendants

in this case have had a speedy trial, the time elapsing from June 21, 1934, to September 17,

1934, not being an undue or prolonged postponement of the trial.

The mere mention of the Behiter case by the district attorney in his argument to the jury

could not, by any stretch of imagination, be considered as inflaming the jury or prejudicing

them against the defendants. The prompt action of the court in stopping the discussion of theBehiter case prevented anything of a prejudicial nature resulting from the reference, if such

reference was prejudicial.

The use of the word “tramp” by the district attorney, in reference to the defendant Squier,

may not have been proper, but it cannot fairly be contended, in view of his conduct as shown

by the record, as having prejudiced him before the jury. The record discloses that he was SURZOLQJDURXQGODWHDWQLJKWDQGWKDWKHFRPPLWWHGDIRXOFULPH


prowling around late at night, and that he committed a foul crime.

It would require a wide stretch of imagination to believe that the court intended to cast any

reflection upon the defendant Squier by the use of the word “fellow” in reference to him, and

we do not consider this particular portion of the assignment serious enough to require any

consideration.

We believe that the trial court was right in its determination of the question of the sentence

imposed. However, if it was in error, this court may rectify the same without remanding the



case. Ex Parte Melosevich, 36 Nev. 67, 133 P. 57; State v. Moore, 48 Nev. 405, 233 P. 523.

OPINION


Roy Squier and Neil Anderson have appealed to this court from a judgment of the Eighth judicial district court, Clark County, sentencing them to terms in the state prison—Squier to

not less than five nor more than ten years, and Anderson to not less than five nor more than

six years. The appeal is also from an order denying them a new trial. There are fourteen

assignments of error, on five of which appellants now contend that there should be a reversal:

(1) Insufficiency of evidence; (2) limiting the number of peremptory challenges to four; (3)

denial of a speedy trial; (4) misconduct on the part of the prosecuting attorney; (5) sentence

unauthorized by law.

1. It is the settled law of this state that a verdict of conviction will not be set aside upon the

ground of insufficiency of evidence if it is supported by any substantial evidence. We have

carefully read and considered the entire record in this case, and are of the opinion that there is

not merely sufficient, but ample evidence to support the verdict. The court is so clearlysatisfied that the verdict was warranted and sustained E\WKHHQWL UHHYLGHQFHLQWKHFDVHDQG WKDWVDLGYHUGLFWLVQRWFRQWUDU\WRWKHHYLGHQFHWKHUHLQWKDWZHGRQRWIHHOFDOOHGXSRQWR

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by the entire evidence in the case and that said verdict is not contrary to the evidence therein

that we do not feel called upon to enter into any discussion of the testimony.

2. The information, after stating the time and place of the alleged offense, charges that thedefendants “did, then and there, wilfully, unlawfully and feloniously, in and upon one” (we

omit name), “a female, not then and there being the wife of either of said defendants,

violently and feloniously make an assault and her, the said” (we omit name), “then and there,

forcibly and against her will, did ravish and carnally know and accomplish with her an act of

sexual intercourse.”

After twelve jurors had been accepted for cause, but before any jurors were sworn to try

the case and before any peremptory challenges were made, counsel for defendants, addressing

the court, said: “We feel that we are entitled to eight peremptory challenges for both of these

defendants.” The court, after hearing respective counsel, ruled as follows: “It is the rule of the

court that both defendants in this case have only four peremptory challenges.” Defendantsproceeded to exercise the four peremptory challenges to which they were limited by the

court's ruling, but did not exercise, or attempt to exercise, a fif th or any further peremptory

challenge. The record does not show, except as above stated that the defendants, after they

had exercised four peremptories, or at any other time, informed the court that they were not

entirely satisfied with the jury, or that they desired or demanded that they be permitted to

exercise any further peremptory challenges.

“The defendant and the state shall each be entitled to peremptory challenges as follows: 1.



If the offense charged is punishable with death or by imprisonment for life, to the number of

eight (8). 2. If the offense charged is other than those above mentioned, to the number of four

(4).” Section 10942 N. C. L.

A person convicted of rape “shall be punished by imprisonment in the state prison for a

term of not OHVVWKDQILYH\HDUVDQGZKLFKPD\H[WHQGWROLIHSURYLGHGWKDWLIVXFKFULPH

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less than five years and which may extend to life; provided, that if such crime be

accompanied with acts of extreme violence and great bodily injury inflicted, the person guilty

thereof shall be punished by imprisonment in the state prison for a term not less than twenty

years, or he shall suffer death, if the jury by their verdict affix the death penalty.” Section10124 N. C. L.

In our opinion, the information in this case does not charge an offense which is or may be

punishable with death. Aderhold v. Pace (C. C. A.), 65 F. (2d) 790; 31 C. J. 734, sec. 281; 1

Bishop's Cr. Law, sec. 601. The question to be determined, therefore, is whether the offense

charged in the information “is punishable” by imprisonment for life.

So far as we have been able to learn, neither the Nevada nor California statute prescribing

the number of peremptory challenges in criminal cases has at any time used the words “may

be punishable,” “is or may be punishable,” or “which may extend to life.” Said statutes have

always used the words “If the offense is punishable,” or “If the offense be punishable.” It is

the contention of appellants that an offense is punishable for life, within the meaning of section 10942 N. C. L., if the sentence may extend to life. The state takes the position that

where, as in this case, the offense charged in the information is punishable by imprisonment

“for a term of not less than five years and which may extend to life,” it is not an offense

which “is punishable” by imprisonment for life.

In People v. Clough, 59 Cal. 438, 441, the court said: “It is claimed on this appeal, that

robbery is punishable for life; that the defendant was entitled to twenty peremptory

challenges, and that the Court erred in its ruling. The section in question has never received a

judicial interpretation, and the point is a new one. We are called upon to decide it without

precedent or authority to aid us. ‘If the offense charged is punishable with death or with

imprisonment in the State Prison for life, the defendant is entitled to twenty peremptory

challenges.' * * * We have reached the conclusion that LWLVRQO\LQFDSLWDOFDVHVRUFDVHVLQ ZKLFKDOLIHVHQWHQFHLVLQWHUPVDIIL[HGE\WKH/HJLVODWXUHDVWKHSXQLVKPHQWRIWKH

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it is only in capital cases, or cases in which a life sentence is in terms affixed by the

Legislature as the punishment of the crime, that the defendant is entitled to twenty

peremptory challenges. Robbery is not such a crime. It is true that the maximum punishment

is not designated by the statute, but the minimum is, and that need not be for a longer time

than one year.” When People v. Clough, supra, was decided, the California statute (Penal

Code, sec. 1070) provided that, “if the offense charged be punishable with death, or withimprisonment in the state prison for life, the defendant is entitled to twenty and the State to

ten peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and

the State to five peremptory challenges.” Defendant, in the Clough case, was convicted of

robbery, the penalty for which at that time was imprisonment in the state prison “not less than

one year.”

People v. Clough, supra, decided in 1881, was followed in the case of People v. Riley, 65

Cal. 107, 3 P. 413, 414, decided in 1884, wherein the court, after citing the Clough case, said,

“To the ruling in that case we adhere.”

In People v. Fultz, 109 Cal. 258, 259, 41 P. 1040, decided in 1895, Supreme Court

Commissioner Vanclief, who wrote the opinion, after citing People v. Clough and People v.

Riley, supra, went on to say: “It is urged however, that those cases should be overruled, butwithout assigning any reason therefor which could have been overlooked or not considered by

the court in those cases; therefore I think the construction put upon section 1070 of the Penal

Code in those cases should be adhered to until that section is changed by the legislature,

although, were the question res integra, I would be inclined to concur with counsel for

appellant.”

In People v. Logan, 123 Cal. 414, 56 P. 56, decided in 1899, the court said: “It is next

claimed that the defendant was entitled, under the law, to 20 peremptory challenges, and was

only allowed 10. When we consider the fact that section 671 of the Penal Code gives to the

court authority to sentence a defendant to imprisonment IRUOLIHXSRQFRQYLFWLRQRIWKHFULPH

RIUDSHWKHUHVHHPVPXFKIRUFHLQDSSHOODQWVSRVLWLRQ


for life upon conviction of the crime of rape, there seems much force in appellant's position.

And, if the question of the construction of the statute pertaining to the number of peremptory

challenges to which a defendant convicted of rape is entitled were now before us for the first

time, the court might probably agree with defendant's contention. But this is not a new

question, and the authorities of this state are the other way. People v. Clough, 59 Cal. 438;

People v. Riley, 65 Cal. 107, 3 P. 413; People v. Fultz, 109 Cal. [258] 259, 41 P. 1040. Wefeel that the law had best stand as it has been heretofore announced.” In the Logan Case a

petition for rehearing in bank was denied.

In People v. Sullivan, 132 Cal. 93, 64 P. 90, decided in 1901, the court followed the

decisions above mentioned, saying: “The construction thus given to the section was made

nearly 20 years ago, and, as the legislature has not seen fit to make a change in the statute, we

do not feel authorized to recede from the construction then given.”

In People v. Scott, 24 Cal. App. 440, 141 P. 945, in which the defendant was convicted of



rape, the action of the trial court in allowing only 10 instead of 20 peremptory challenges was

upheld by the court of appeals, which expressly adhered to the rule as laid down in the earlier

cases.

The same rule was followed in the case of People v. Purio, 49 Cal. App. 685, 194 P. 74,

75, decided in 1920, wherein the court said: “The action of the court in refusing to allow

more than 10 peremptory challenges is claimed as error under section 1070 of the PenalCode. It is contended that, since the crime of robbery may be punished by imprisonment in

the state prison for life, the defendants, by virtue of said section, were entitled to twenty of

such challenges. The said provision, however, applies only to cases where no shorter sentence

may be imposed. It is not applicable where the punishment, in the discretion of the court, may

be less than life. It therefore does not apply to the crime of robbery wherein the statute has

provided that it is punishable E\LPSULVRQPHQWLQWKHVWDWHSULVRQQRWOHVVWKDQRQH\HDU


by imprisonment in the state prison not less than one year. Section 213, Pen. Code. This has

been decided by the Supreme Court in the following cases: People v. Clough, 59 Cal. 438;

People v. Riley, 65 Cal. 107, 3 P. 413; People v. Sullivan, 132 Cal. [93] 94, 64 P. 90. In

People v. Harris, 61 Cal. 136, upon which appellants rely, it appears that the defendant was

charged with robbery and also prior convictions, and therefore under section 667 of the Penal

Code, the information involved a charge which, if sustained by a verdict of conviction, would

require the court to impose a life sentence without any discretion to reduce the term. It may be

added that the recent change in the law providing for an indeterminate sentence has not

affected the rule in reference to the number of peremptory challenges.” And see 15 Cal. Jur.

435, 436, sec. 106.

The only case cited by appellants in connection with the question now under discussion isKerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163, wherein the court of criminal appeals

reversed a conviction for rape upon the grounds that defendants, who were entitled to fifteen

peremptory challenges, were restricted to ten. It must be borne in mind, however, that the

pertinent statues in Texas read as follows: “In capital cases, both the state and defendant shall

be entitled to fifteen peremptory challenges.” Code Cr. Proc. Tex. 1911, art. 691. “In

prosecutions for felonies not capital, the defendant and state shall each be entitled to ten

peremptory challenges.” Code Cr. Proc. Tex. 1911, art. 709. “Whoever shall be guilty of rape

shall be punished by death or by confinement in the penitentiary for life, or for any term of

years not less than five, in the discretion of the jury.” Pen. Code Tex. 1911, art. 1069. “An

offense for which the highest penalty is death is a capital felony.” Pen. Code Tex. 1911, art.56. The highest penalty for the offense charged in the indictment in the case at bar is life

imprisonment. In Nevada it is only when the crime is accompanied with acts of extreme

violence and great bodily injury inflicted that the jury may affix the death penalty. In other

words, the offense charged in the LQIRUPDWLRQLQWKHLQVWDQWFDVHLVQRWDFDSLWDOIHORQ\LQ 1HYDGDDQGLIWKHVWDWXWHVSUHVFULELQJWKHQXPEHURISHUHPSWRU\FKDOOHQJHVLQFULPLQDO FDVHVZHUHWKHVDPHLQWKLVVWDWHDVLQ7H[DVLWLVFOHDUWKDWGHIHQGDQWVZRXOGQRWKDYH

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information in the instant case is not a capital felony in Nevada, and, if the statutes

prescribing the number of peremptory challenges in criminal cases were the same in this stateas in Texas, it is clear that defendants would not have been entitled to fifteen, but only ten,

peremptory challenges.

Counsel for the state, as well as appellant's counsel, seem to be of the opinion that State v.

Collins, 53 Mont. 213, 163 P. 102, 103, tends to support appellant's contention that they were

entitled to eight peremptory challenges. Counsel very likely did not have before them the

Montana statute prescribing the number of peremptory challenges in criminal cases. That

statute is as follows: “The defendant is entitled to a peremptory challenge of jurors in the

following cases, and to the number as follows: 1. If the offense charged be punishable with

death, or by imprisonment for life, challenges to the number of ten. 2. If the offense be

punishable with imprisonment in the state prison not less than a specified number of years,and no limit to the duration of such imprisonment is declared, to the number of eight. 3. In

any other case punishable with imprisonment in the state prison, to the number of six. 4. In all

other cases, to the number of four.” Rev. Codes 1921, sec. 11955. It will be noted that in the

Collins case the court did not hold that the defendant was entitled to the highest number of

peremptory challenges. The information in the Collins case, as stated by the court, “was so

framed to enable the jury or the court, upon conviction of the defendant as charged, to fix his

punishment as prescribed in section 8897 of the Revised Codes.” An inspection of said

section of the Montana statute shows that such punishment is “imprisonment in the state

prison not less than ten years.” Rev. Codes 1907, sec. 8897. It would seem that State v.

Collins, supra, not only fails to support the position of appellants in the case at bar, but that

the Montana statute itself tends to support the California rule, inasmuch as the highestnumber of peremptory challenges is allowed only in cases where the punishment is death or

life LPSULVRQPHQWEXWQRWZKHUHWKHSXQLVKPHQWWKRXJKLWPD\H[WHQGWROLIHPD\DOVR

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imprisonment, but not where the punishment, though it may extend to life, may also be less

than life.

There is another consideration which, in my opinion, tends to confirm the conclusion Ihave arrived at that the defendants in this case were entitled to only four peremptory

challenges. Section 158 of our old crimes and punishments act (Gen. St. 1885, sec. 4704),

which corresponds to section 9975 N. C. L., used the words “punishable by death or by

imprisonment in the state prison for a term which may extend to life.” When our new crimes

and punishments act was adopted in the year 1911, this wording was changed to “punishable

by death or life imprisonment.” As so changed, the wording of section 9975 N. C. L. is made



to correspond to that of the California statute, which, at the time of said change had for 30

years been construed in at least four decisions of that state as not including cases where the

penalty, though it might extend to life, could also be for a term less than life. It is also to be

observed that in making the change aforesaid, subdivision 1 of said section 9975 was made to

conform to the wording of said section 10942, relating to the number of peremptory

challenges in criminal cases. The fact that the old crimes and punishments act used the words“which may extend to life” indicates to me that the aforesaid change in the act of 1911 was a

deliberate one.

While this court is not bound by the California decisions, I cannot overlook the fact that

the rule has been settled in that state for approximately 55 years, and that in none of the

decisions in that state establishing, following, or recognizing said rule has there been one

dissenting opinion. While the number of peremptory challenges allowed has been changed

from time to time in both Nevada and California, the fact remains that the other language of

the sections specifying the number of peremptory challenges to be allowed in criminal cases

has always been identical, or the same in substance. The legislature of neither state has ever

seen fit to change this wording, and when, in 1911, our legislature repealed the criminal

practice act of 1861 and DGRSWHGDQHQWLUHO\QHZRQHWKHZRUGLQJRIWKHVHFWLRQLQ

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adopted an entirely new one, the wording of the section in question was in substance wholly

preserved.

My conclusion that the defendants in this case were entitled to but four peremptory

challenges does not represent my personal opinion as to what the law ought to be. I think it

would be better if our statute were to allow (a) ten peremptory challenges where the offensecharged is punishable with death or by imprisonment in the state prison for life, but not less

than life; (b) eight peremptories where the penalty for the offense charged is imprisonment in

the state prison for a term not less than a specified number of years, and which may extend to

life; (c) six peremptories where the penalty for the offense charged is imprisonment in the

state prison for a term not less than one year nor more than any term of years less than life;

and (d) four peremptories in all other cases.

Were we to hold that defendants were entitled to eight peremptory challenges, it is very

doubtful, to say the least, whether they would be entitled to a reversal in this case, for the

reason that, after challenging four jurors peremptorily, they did not challenge, or offer to

challenge, any other juror, nor did they take any action whatsoever indicating that the jurywas not entirely acceptable to them. State v. Collins, 53 Mont. 213, 163 P. 102.

My associates are strongly inclined to disagree with the view that section 10942 N. C. L.

limits the defendant in a criminal case to four peremptory challenges where the offense is that

charged in the information in this case. They point out that this court is not bound by the

decision in the case of People v. Clough, 59 Cal. 438; that it has lost its weight as an authority

because of the fact that it was strongly intimated by the supreme court of California in People

v. Fultz, 109 Cal. 258, 259, 41 P. 1040, and subsequent cases, that, if it were a new question



in that state, it would hold contrary to the now recognized practice. They further give it as

their recollection that while in the practice of law LQWKLVVWDWHDVZHOODVZKLOHRQWKHWULDO EHQFKH[WHQGLQJEDFNQHDUO\\HDUVLWZDVWKHJHQHUDOUXOHWRDOORZHLJKWSHUHPSWRU\

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in this state as well as while on the trial bench, extending back nearly 30 years, it was the

general rule to allow eight peremptory challenges in a situation such as is presented in this

case.

3, 4. It is not necessary, however, in the opinion of my associates, that we decide how

many peremptory challenges defendants were entitled to, for the reason, as they state, that no

peremptory challenge was sought to be exercised to more than four jurors; that there is but

one way for a person on trial to show that he is prejudiced in such a situation, which is to seek

to exercise his right—to exhaust his remedy; that this was not done by the general statement

of counsel and court; and that it is a well-known rule in this jurisdiction that judgments are

reversed only in case of prejudicial error, citing State v. Smith, 33 Nev. 438, 117 P. 19; State

v. Willberg, 45 Nev. 183, 200 P. 475; State v. Behiter, 55 Nev. 236, 29 P. (2d) 1000; section

11266 N. C. L.

The court is not to be understood as deciding that the defendants in this case were entitled

to eight or to four peremptory challenges; but it does decide, for reasons above set forth, that

defendants waived any right they may have had to more than four such challenges.

5-9. Appellants claim that they were denied the right to a speedy trial in the district court.

While the sixth amendment to the constitution of the United States does not apply to trials in

state courts (U.S.C.A., Constitution, part 2, pp. 567, 568), and there is no provision of our

state constitution expressly guaranteeing a speedy trial to a defendant in a criminal case, thereis no doubt that one charged with the commission of a crime is entitled to a speedy trial. Ex

Parte Stanley, 4 Nev. 113; Ex Parte Larkin, 11 Nev. 90; Ex Parte Moriarity, 44 Nev. 164, 191

P. 360; N. C. L. secs. 10654, 11193, 11194.

The date of the alleged crime was May 17, 1934. Information was filed June 9, 1934. On

June 25, 1934, defendants entered pleas of not guilty, and demanded and UHTXHVWHGDQ LPPHGLDWHWULDO


requested an immediate trial. On June 28, 1934, the trial court fixed July 9, 1934, as the date

for the trial. On July 3, 1934, the court, of its own motion, set aside said order of June 28th

and ordered the trial continued to September 17, 1934. Defendants, on July 23, 1934, filed a

motion to dismiss the information, upon the ground that the court's action in so continuing the

trial as aforesaid constituted a denial of their right to a speedy trial. This motion was denied

on August 3, 1934. Defendants had previously and in due time demanded a speedy trial, and

they excepted to the order of July 3d, continuing the trial until September 17th.



Before making the order of July 3d, the sheriff had reported to the court that arrangements

could be made for taking care of the jury in an air-conditioned hotel in Las Vegas, and the

court had also learned that the courtroom in the new federal building in that city could be

used if desired.

The order made by the trial court on July 3d was as follows: “The Court: Heretofore on the

28th of June, 1934, the Court set for trial the said case and on that same date issued an orderfor a venire to be in attendance on this Court on the 9th day of July, 1934, at the hour of 9:30

A.M. for the purpose of trying said case; At the time of the setting of said case it appeared

that perhaps the one case would be all that would be presented to the Court for trial during the

summer months and at said time there still remained the probability that the use of the

Federal Court Room could be had by the Court for the trial of the action the Federal

authorities having very graciously offered the use of said building and the use of its facilities

to the Court and its officers for the trial of said cause; subsequent investigation has convinced

the Court that it would be without jurisdiction to conduct court within the said Federal

Building, that being ex-territorial; Also, it appears that since the setting of said cause there is

now pending three additional criminal cases, one of which is a murder case, and that if the

Court convenes for the purpose of trying criminal cases on the 9th day of July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1934, that it would be necessary for the Court to continue such term for a sufficient length of

time to dispose of all of the pending cases; Now, at this time, taking into consideration the

lack of facilities for the conducting of a Jury Term of Court in the City of Las Vegas during

the months of July and the early part of August, the Court is of the opinion that it would be

detrimental to the best interests of the Court and to the orderly conduct of its business torequire a jury to remain in attendance upon this Court for from four to five weeks; that the

Court is apprehensive that to so require the attendance of a jury and to so conduct court

would probably result in illness to jurors and perhaps some heat prostrations; that the

provision of the Constitution which requires that all defendants are entitled to a speedy trial is

contingent on existing conditions and that if the facilities of the Court are such that they

cannot expeditiously and harmoniously and safely proceed to trial that that provision of the

Constitution does not require the waiving and disregard of these powers in a speedy trial; in



the case of Ex Parte Moriarity, 44 Nev. 164, 191 P. 360, 361, the question is there

determined; Under all the circumstances, the Court does now, at this time, of its own motion,

vacate and set aside the setting of said case of The State of Nevada v. Roy Squier and Neil

Anderson and for the said 9th day of July at 9:30 A.M., and continues the trial of said case

until Monday, September the 17th, 1934, at the hour of ten o'clock, A.M. Further ordered that

the order of the drawing and requiring the attendance of a jury panel to be in attendance uponthe Court on July 9th, 1934, at the hour of 9:30 o'clock A.M. is hereby revoked and set aside

and the said jurors and each of them excused from such attendance; that the Sheriff notify all

such summoned jurors to that effect.”

It is provided in section 8469 N. C. L. that “court shall be held in each county at least once

in every six months, and as often and as long as the business of the county requires.” Section

11194 N. C. L. provides that, “if a defendant, whose trial has not been postponed upon hisDSSOLFDWLRQLVQRWEURXJKWWRWULDODWWKHQH[WVHVVLRQRIWKHFRXUWDWZKLFKWKHLQGLFWPHQW RULQIRUPDWLRQLVWULDEOHD IWHUWKHVDPHLVIRXQGRUILOHGWKHFRXUWVKDOORUGHUWKH

LQGLFWPHQWRULQIRUPDWLRQWREHGLVPLVVHGXQOHVVJRRGFDXVHWRWKHFRQWUDU\EHVKRZQ´


application, is not brought to trial at the next session of the court at which the indictment or

information is triable, after the same is found or filed, the court shall order the indictment or

information to be dismissed, unless good cause to the contrary be shown.”

In Ex Parte Moriarity, supra, this court said that “the term ‘session of the court,' in the

connection in which it is used in the section quoted, necessarily alludes to a ‘session' when

the court is organized to hear and determine criminal cases. It cannot be so organized unless a

jury lawfully drawn and served is present, ready to participate and perform its function.”

It is clear that the rights of the defendants in this case, under section 11194 N. C. L. werenot violated. Such being the case, it cannot be said that the right of defendants to a speedy

trial was denied unless the court's order of July 3d was arbitrary, willful, or oppressive. We

are not willing to say that it was. The fact that the court first set the trial for July 9th indicates

that it had no disposition to harass or oppress the defendants. It also shows that the

anticipated hot weather was not the only reason for making the order of July 3d. We have no

reason to believe that these defendants would not have been brought to trial on July 9th, had

other criminal cases not arisen which, in the trial court's opinion, would have necessitated a

jury session lasting four or five weeks. We are inclined to agree with counsel for appellants in

their contention that, with the permission of the United States and the consent of the

defendants, it would have been lawful for the district court to hold a session in the courtroom

of the federal building at Las Vegas; but we are not called upon to decide that point because,

if it were conceded that such a session would have been lawful, it would not change our

opinion that defendants' rights to a a speedy trial was not denied in this case. Furthermore,

decisions in those states where the statutes fix a definite limit within which defendants must

be tried to the effect that hot weather is not good cause for failing to try them within such

limits are not controlling where, as in this VWDWHQRVXFKWLPHOLPLWXQOHVVLWEHWKH VL[PRQWKSHULRGDERYHUHIHUUHGWRLVIL[HGDQGZKHUHDVLQWKLVFDV HWKHGHIHQGDQWV



ZHUHEURXJKWWRWULDOOHVVWKDQWKUHHPRQWKVDIWHUWKHLUSOHDVRIQRWJXLOW\ZHUHHQWHUHG


state, no such time limit, unless it be the six-month period above referred to, is fixed, andwhere, as in this case, the defendants were brought to trial less than three months after their

pleas of not guilty were entered. It is undesirable that one charged with crime should be held

in prison, after pleading not guilty and demanding a speedy trial, for a longer period of time

than is reasonably necessary. On the other hand, a defendant cannot require of the trial court

that it disregard the condition of its calendar, the pendency of other cases, public expense, and

the convenience or health of judge, court officers, and jurors.

10-12. Alleged misconduct of the prosecuting attorney is assigned as error, particularly a

reference in the oral argument to a first degree murder case in which the defendant Behiter

was convicted and executed, and a further statement made in oral argument referring to the

defendant Squier as “this tramp.” The reference to the Behiter case and the court's action indisposing of it appear in the following excerpt from the record on appeal: “I am not going to

reiterate and go over the same thing again, because this other Behiter when he killed a woman

and these other murderers. The Court: Confine yourself to arguing this case.” From the

foregoing it will be seen that the court, of its own motion, promptly squelched the

unwarranted outburst on the part of the deputy district attorney. We are satisfied that the

defendants were not prejudiced by said improper remarks of the prosecuting attorney, and the

same is true of the said appellation “this tramp.” When defendants objected and excepted to

the last-mentioned language, the court said: “There is no evidence in the case of this fellow

becoming a tramp.” “Testimony showed who the defendants were, and their occupations. The

jury could not have been misled or prejudiced especially in view of the court's action in

sustaining their objection. The assignment of error, based upon the use by the court of thewords “this fellow” in the last-quoted sentence, is without any merit.

13. The last assignment of error relied upon by DSSHOODQWVLVWKDWWKHGLVWULFWFRXUWHUUHG LQKROGLQJWKDWQRVKRUWHUSHULRGRIWLPHWKDQILYH\HDUVFRXOGODZIXOO\EHIL[HGE\WKH FRXUWDVWKHPLQLPXPWHUPRILPSULVRQPHQWIR UWKHRIIHQVHRIZKLFKWKHGHIHQGDQWVZHUH

FRQYLFWHG


appellants is that the district court erred in holding that no shorter period of time than fiveyears could lawfully be fixed by the court as the minimum term of imprisonment for the

offense of which the defendants were convicted. We agree with appellants that said holding

of the trial court was error. We have already quoted the statute prescribing the penalty for

rape. Section 9975 N. C. L. provides in part that “every person who attempts to commit a

crime, unless otherwise prescribed by statute, shall be punished as follows: 1. If the crime

attempted is punishable by death or life imprisonment, the person convicted of the attempt

shall be punished by imprisonment in the state prison for not more than twenty years; 2. In



every other case he shall be punished by imprisonment in such manner as may be prescribed

for the commission of the complete offense, for not more than half the longest term, or by a

fine of not more than half the largest sum, prescribed upon conviction for the commission of

the offense attempted, or by both such fine and imprisonment.” The first part of section

11058 N. C. L. reads: “Whenever any person shall be convicted of any felony for which no

fixed period of confinement is imposed by law and where a judgment of confinement isrendered, the court shall, in addition to any fine or forfeiture which he may impose, direct that

such person be confined in the state prison for an indeterminate term limited only by the

minimum and maximum term of imprisonment prescribed by law for the offense of which

such person shall be convicted; and where no minimum term of imprisonment is prescribed

by law, the court shall fix the minimum term in his discretion at not less than one year nor

more than five years, and where no maximum term of imprisonment is prescribed by law, the

court shall fix such maximum term of imprisonment.”

Inasmuch as section 9975 N. C. L. does not prescribe any minimum term of imprisonment,

it was the trial court's duty to fix such minimum term, in its discretion, at some definite

period of time not less than one year nor more than five years, under the provisions of section

1&/


11058 N. C. L. Ex Parte Weinroth, 46 Nev. 103, 207 P. 1103. We do not hold that the district

court was without power or jurisdiction to fix the minimum term at five years. The error

consisted in deciding that the court could not fix any shorter term. If the record were silent,

this court would presume that the trial court's action in fixing five years as the minimum

represented the presiding judge's best judgment in the exercise of the discretion with which

the law clothes him, but the record shows that the court, in sentencing the defendants, afterquoting from sections 9975 and 10124 N. C. L. said: “Now, construing those two then that if

the offense attempted had been completed the minimum would not be less than five years and

the maximum life, with this section 9975, ‘In every other case he shall be punished by

imprisonment in such manner as may be prescribed for the commission of the completed

offense, for not more than half the longest term' now, the longest term would be life, the

minimum in any event f ive years.” The court then proceeded to pronounce sentence, and

defendants requested than an exception be noted, whereupon the court said: “Let the record

further show that the defendants duly except to the conclusion of the Court that the minimum

sentence which may be inflicted upon the defendants convicted of the crime that these

defendants have been convicted of, is five years.”It is the opinion of this writer that the penalty for attempt to commit the offense charged in

the information is prescribed in subdivision 2 of section 9975 N. C. L. which must be read in

connection with section 11058 N. C. L. My associates, however, are definitely of the opinion

that such penalty is prescribed in subdivision 1 of said section 9975 read together with said

section 11058.

14. Section 11101 N. C. L. gives this court authority to modify, as well as to affirm or

reverse, judgments appealed from in criminal cases. In Ex Parte Melosevich, 36 Nev. 67, 133



P. 57, 59, this court said: “Upon suggestion to the trial court, the judgment could have EHHQ

DPHQGHGWRFRQIRUPWRWKHODZRUXSRQDSSHDOLWZRXOGKDYHEHHQVRPRGLILHG´


been amended to conform to the law or upon appeal it would have been so modified.”

Counsel for the defendants in the instant case agree with the state's counsel that this court has

power to modify the sentence.

15. In modifying the judgment in this case, we shall not disturb the maximum terms fixed

by the trial court, as the assignment of error relates only to the minimum terms, and no

exception or complaint has at any time been made by the state's counsel regarding the

maximum terms. It is well for trial courts to bear in mind, however, in future cases, that, in

view of the opinion of my associates as to the construction of section 9975 N. C. L., the

maximum sentence in cases of this kind should be fixed at 20 years.

It is ordered and adjudged that the order denying a new trial be affirmed; that the judgmentand sentence of the trial court be, and is hereby, modified, in respect to the defendant and

appellant Neil Anderson, as follows: The minimum term of imprisonment in the state prison

is hereby fixed, for said Neil Anderson, at three years instead of five years. The minimum

term of imprisonment in the state prison, for the defendant Roy Squier, is hereby fixed at five

years, the same minimum term as was fixed by the trial court. In all other respects, the

judgment of the district court is affirmed.

____________

ÐÐÐÐ56 Nev. 407, 407 (1936) In Re McGregor

ÐÐÐÐ

In Re McGREGOR

In Re PERMISSION TO APPROPRIATE WATERS

OF MARTIN CREEK

No. 3119

September 3, 1935. 48 P. (2d) 418.

ON MOTION TO DISMISS

1. Appeal and Error.Attorney whose neglect to serve and file transcript of record on appeal for approximately four months

was excusable for two months on account of his own illness and that of wife, but whose only excuse for

neglect during other two months was reliance on indulgence of respondent's counsel and pressure of

duties as state senator, held entitled to hearing of appeal on the merits, in view of policy to dispose of

cases on merits and attorney's bona fide desire to prosecute appeal (Rules of the Supreme Court, rules 2,

3).




Supreme court held authorized, in view of use of word “may” in rule stating that appeal “may” be

dismissed if transcript of record is not filed within time prescribed, to permit filing of transcript after

expiration of time specified (Rules of the Supreme Court, rules 2, 3).

Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.

Proceeding upon the application of Frank McGregor to the State Engineer of the State of Nevada, for permission to appropriate the waters of Martin Creek. From an unsatisfactory

judgment, the State Engineer and another appeal. On motion of Frank McGregor to dismiss

the appeal and affirm the judgment, and on cross-motion by the State Engineer and another

for an extension of time to serve and file their transcript of the record on appeal. Motion to

dismiss the appeal and affirm the judgment denied, and motion for an extension of time

allowed.

Gray Mashburn, Attorney-General, and W. T. Mathews and Julian Thruston, Deputy

Attorneys-General, for Appellant, State Engineer.

ÐÐÐÐ56 Nev. 407, 408 (1936) In Re McGregorÐÐÐÐ

McNamara & Robbins, for Appellant, Harold Wm. Merritt.

Milton B. Badt, for Respondent, Frank McGregor.

OPINION

By the Court, Ducker, C. J.:There is before us the motion of Frank McGregor, respondent, to dismiss the appeal and

affirm the judgment in the above-entitled matter. The principal ground of the motion is that

no transcript of the record on appeal has been filed with the clerk of this court within thirty

days after the appeal was perfected, as required by rule 2 of the rules of the supreme court, or

at all.

The motion came on for hearing in this court May 29, 1935, at 10 a.m. At that time

counsel for Harold William Merritt, one of the appellants, appeared and presented a motion

for an order of this court extending the time of the appellants to serve and file their transcript

of the record on appeal from the judgment, to and including said 29th day of May. This

motion was made on the ground of the excusable neglect of John E. Robbins, Esq., one of the

attorneys for said appellant, in having failed to serve and file such a transcript in the timerequired by law, and was supported by his affidavit. The motions were heard together, and

upon the submission thereof an order was made extending the time for filing the record on

appeal until the decision was rendered on the respective motions.

1. As the appellants' default is conceded, the only question is whether the neglect in this

respect is excusable. It appears that the appeal, which was taken from the judgment, was duly

perfected on the 19th day of November, 1934. To comply with said rule 2 it was necessary to



serve and file the transcript of the record on appeal within thirty days from said

last-mentioned GDWH


date. It appears from the affidavit of Milton B. Badt, counsel for respondent, that from time to

time appellants were given extensions of time to serve and file their proposed record on

appeal up to and including March 18, 1935. On being given the last extension of time,

counsel for said appellants was informed by letter from affiant that, unless they became active

in the matter, he would move to dismiss; that since then no further extension has been given

or requested, and no record on appeal has been served or filed.

On the hearing, counsel for appellant Merritt presented a proposed transcript of the record

on appeal, which, under the direction of the court, was deposited with the clerk pending a

decision on the motions.

The matters which are claimed to show a case of excusable neglect are set out in theaffidavit of said attorney for appellant Merritt, and are substantially as follows: He agreed

with the attorney-general and his deputies, attorneys for the state engineer, also an appellant,

that he would prepare, serve, and file the record on appeal in the action, and that no fault in

the matter rests upon said officials. From time to time prior to January 20, 1935, said attorney

for respondent orally extended the time to complete the record on appeal. On January 21,

1935, affiant became a member of the legislature of the State of Nevada as state senator, and

was in continuous attendance at the legislature from that date to and including March 30,

1935, and as such state senator was constantly occupied with the business of the state senate

to the exclusion of outside matters, including many matters pending in his law office and

practice, among which was the completion of this appeal. He intended to complete it and

prosecute it to a final determination and has advised his client that his said appeal is wellgrounded in law. He believed he could obtain extensions of time from respondent's attorney

for the asking, which belief was founded on the generous attitude of the latter in this respect

in the past, and believed that if he had asked for a further extension it would KDYHEHHQIUHHO\

JLYHQDQGQRPRWLRQWRGLVPLVVZRXOGKDYHEHHQPDGH


have been freely given and no motion to dismiss would have been made.

Respondent's attorney wrote a letter to affiant's address at Elko, Nevada, on or aboutMarch 8, 1935, extending the time to March 18, 1935, and mailed a copy of the letter to the

office of the attorney-general. The letter was not forwarded to affiant or called to his attention

until March 29, 1935, on or about which date notice thereof was conveyed to him in the

senate chambers by the Honorable W. T. Mathews, Deputy Attorney-General. On affiant's

return to Elko on March 31, 1935, after the adjournment of the legislature, he found his wife

so seriously ill that it necessitated her removal to the Elko hospital, where she submitted to a



major operation and was not permitted to leave until May 2, 1935. Since that time to the time

of making the affidavit on May 28, 1935, his wife had been confined to her home under the

constant care of a physician. The condition of his wife was such that affiant was required to

be in constant attendance upon her to the neglect of his office, and in addition affiant was

himself taken ill on April 25, 1935, and confined to his home under doctor's orders and call,

to May 6, 1935. During the period from the adjournment of the legislature to and includingMay 15, 1935, the date of being served with a copy of the notice of motion to dismiss the

appeal, he was unable, for the reasons stated, to properly consider many matters pending in

his law office, including the preparation of the record on appeal in this case. His state of

mind, coupled with his illness and the serious illness of his wife, caused him to neglect to ask

respondent's counsel for additional time. At the time of making the affidavit he had

completed the record on appeal and could serve and file the same without delay on any terms

the supreme court saw fit to impose.

We have been somewhat in doubt as to whether the foregoing facts show such a case of

excusable neglect as ought to invoke the exercise of the discretion of this court.


Appellants were in default after March 18. The attorney for the appellant Merritt had

enjoyed the indulgence of respondent's counsel in the form of oral extensions for some time

before, but this ought not to have lulled him into the belief that continued indulgence in that

respect could be had for the asking. For some time prior to his being notified by the deputy

attorney-general on March 29, 1935, of the letter of respondent's counsel that his time

extended to March 18 had expired, he seems to have been unaware of the status of his appeal.

So far as his affidavit discloses he did not know that his time had been extended at all from

the extension he had been given before the last one contained in the letter, and he made noinquiries about it. After he ascertained that he was in default, in spite of his belief that he

could obtain consideration from respondent's counsel, he made no effort to do so. This, he

admits, was neglect, but claims it was excusable under the circumstances set forth in his

affidavit. His showing of excusable neglect after the legislature adjourned and he returned to

Elko on the 31st of March, 1935, on account of the prolonged sickness of his wife, and his

own illness, is, we think, sufficient. The only thing which tends to rescue his conduct from

inexcusable neglect before that time and after January 20, 1935, so far as his affidavit reveals,

aside from the reliance he had on the indulgence of respondent's counsel, is his being

occupied with the affairs of state. However, we are satisfied from the showing made that

counsel desires in good faith to prosecute the appeal and have concluded to exercise ourdiscretion in favor of a hearing on the merits. Appellant has not been in default for a great

period of time, as was the case in Sullivan v. Nevada Industrial Commission, 54 Nev. 301, 14

P. (2d) 262, wherein two years had expired from the perfecting of the appeal from the

judgment to the filing of the transcript of the record on appeal. Moreover, we have previously

declared it is the policy of the law that cases should EHGLVSRVHGRILQWKLVFRXUWRQWKHLU PHULWVZKHQHYHUSRVVLEOH




be disposed of in this court on their merits whenever possible. Orleans Hornsilver Min. Co. v.

Le Champ D'Or F. G. M. Co., 52 Nev. 92, 284 P. 307, 289 P. 805; Brockman v. Ullom, 53

Nev. 287, 299 P. 677.

2. Our authority for permitting a transcript of the record on appeal to be filed after the time

specified in rule 2 is plainly conferred. It will be observed that in establishing it and rule 3 the

court has reserved the exercise of discretion in enforcing the former. This is evident from the

word “may” employed in the latter. Accordingly, the motion to dismiss the appeal and affirm

the judgment is denied, and the motion for an extension of time is allowed. It is further

ordered that appellant be given ten days after notice of this decision in which to serve and file

the transcript of the record on appeal.

On the Merits

March 5, 1936. 55 P. (2d) 10.

1. Waters and Water Courses.

Statute providing for refiling of defective application for appropriation of water to

state engineer after its correction within 60 days from date of return to applicant

required that application be refiled within 60 days from return date endorsed on

application by state engineer to retain its priority; “return” meaning to bring, carry, put,

or send, back (Comp. Laws, sec. 7945).

2. Statutes.

Statute should be construed so as to give effect, if possible, to all its parts, and in

doing so usual meaning of words may be restricted or extended.

3. Waters and Water Courses.

Erroneous statement by state engineer in returning defective application for water

that amended application must be filed on date which was only 59 days from return

date endorsed on application, instead of 60 as required by statute, held not to excuse

delay in filing such application, where applicant did not deposit it in his post office

until date stipulated for filing (Comp. Laws, sec. 7945).

Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.

Proceeding in the matter of the application of )UDQN0F*UHJRUWRWKH6WDWH(QJLQHHUIRU SHUPLVV LRQWRDSSURSULDWHWKHZDWHUVRI0DUWLQ&UHHNZKHUHLQ+DUROG:LOOLDP0HUULWW

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Frank McGregor to the State Engineer, for permission to appropriate the waters of Martin



Creek, wherein Harold William Merritt intervened. Judgment for applicant, and the State

Engineer and intervener appeal. Reversed.

Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy

Attorneys-General; and McNamara & Robbins, for Appellants:

Appellants contend that the statute (sec. 7945 N. C. L.) is plain, simple and unambiguous,and that the burden was upon the applicant, McGregor, to see that his corrected or amended

application was actually refiled in the office of the state engineer within sixty days from the

date of return endorsed on said application.

If the running of the sixty-day period begins with the receipt of the returned application, as

found by the lower court and as contended by respondent, how, and in what manner, can the

state engineer endorse the date of return upon the application, when such application is in the

hands of the applicant or his agent, and how can he make a record of same in his office? The

statute means, certainly, that the state engineer must endorse the date of return upon the

application before it leaves his office, and make a record of same for the purpose of starting

the sixty-day period. The state engineer has no way of knowing or determining what day the

applicant receives the application, as the statute does not require that it be sent by registeredmail, and he would have no application in his office to endorse.

There is a wide difference between the meaning of the words “return” and “receipt,” and

had the legislature meant sixty days from the time of receipt, the statute would have been so

expressed.

We contend that the act of the state engineer of using the United States mails as a means of

transporting the returned application is proper in this day and age.


Milton B. Badt and Arthur McGregor, for Respondent:

Definitions and judicial interpretations of the word “return” show its meaning to be an

actual physical return to the persons to whom it is to be returned—an actual delivery.

Webster's New International Dictionary; Harpending v. Haight, 39 Cal. 189; Tuttle v. City of

Boston (Mass.), 102 N. E. 350; Hornage v. Imboden (W. Va.), 49 S. E. 1036.

Under other sections of the water code, where notices may be given by mailing,

publication or registered mail, the method is specifically stated. It will be noted that section

60 contains no provision for the return by ordinary mail or by registered mail, or in any other

fashion.

Judicial determination of the constitutionality of the water code is based primarily uponthe fact that the provisions of the act are so carefully drawn as to insure the giving of notice of

all the proceedings, and a construction of section 60 permitting the mere mailing of the notice

(without express statutory provision therefor) as sufficient to start the sixty-day period

running, would be out of line with the following decisions: Ormsby County v. Kearney, 27

Nev. 314, 142 P. 803; Bergman v. Kearney, 241 Fed. 884.

Not only was the application to be returned, but such return was to be accompanied by

“advice of the reasons therefor.” The word “advice” in this sense has, of course, its common



meaning of “notice.” such being the case, we have a clear statutory requirement that notice

must be given. Accordingly, the sixty-day period for filing the corrected application must

commence to run from the date of said return and notice. It is a well-settled rule of law that

where a statute requires notice to be given, actual personal notice is required, and the notice

must be personally served on the person to be notified. 20 R. C. L. 343.

The state engineer had no authority to prescribe a shorter period than sixty days for thereturn of the amended application. Yet in this instance he sent a notice requiring the amended

or corrected application WREHIL OHGZLWKLQDSHULRGRIILIW\QLQHGD\VIURPWKHGDWHWKH RULJLQDOZDVPDLOHGIURPKLVRIILFH


to be filed within a period of fifty-nine days from the date the original was mailed from his

office.

OPINION


This proceeding was instituted in the district court by respondent to have annulled and set

aside an order of the state engineer made on the 25th day of June, 1934, canceling the

former's application to that officer for permission to appropriate waters of Martin creek, in

Elko County, Nevada.

The state engineer answered, and, upon the trial, Harold Wm. Merritt was, by order of the

court, permitted to appear in said proceeding in support of the position of the state engineer as

a person who may have been affected by the former's order or decision. Upon the conclusionof the proceeding, the court rendered judgment annulling and setting aside said order. The

judgment also ordered and directed the state engineer forthwith to reinstate respondent's

application with a priority as of date of November 1, 1933, and to proceed with the said

application as amended or corrected in the manner required by law. The appeal was taken by

both the state engineer and Harold Wm. Merritt, intervener.

The facts upon which the judgment was rendered are as follows: The application of

respondent to appropriate 1,500 acre-feet of the public waters from Martin creek within the

county of Elko, State of Nevada, was filed in the office of the state engineer at Carson City,

Nevada, on the 1st day of November, 1933, by his agent, C. F. De Armond, and to which was

assigned serial No. 9709. On the 20th day of April, 1934, the state engineer mailed at Carson

City, Nevada, addressed to respondent in care of C. F. De Armond, at Elko, Nevada, by

registered mail, the said application for correction, with the return date placed thereon by said

state engineer, the same being the 20th GD\RI$SULODFFRPSDQLHGE\DGYLFHRIWKH UHDVRQIRUWKHUHWXUQRIWKHDSSOLFDWLRQDQGWKHUHLQJLYLQJDGGLWLRQDOLQIRUPDWLRQ FRQFHUQLQJWKHFRUUHFWLRQVKHGHVLUHGDQGIXUWKHULQIRUPLQJDSSOLFDQWWKDWWKHDPHQGHG DSSOLFDWLRQDQGVXSSRUWLQJPDSPXVWEHILOHGLQKLVRIILFHRQRUEHIRUHWKHWKGD\RI -XQHEHLQJGD\VIURPDQGDIWHUWKHWKGD\RI$SULODQGVDLGQRWLFHFRQWDLQHG WKHIXUWKHUDGYLFHWKDWLIWKHDSSOLFDWLRQSURSHUO\FRUUHFWHGEHUHWXUQHGZLWKLQG D\V



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day of April, 1934, accompanied by advice of the reason for the return of the application, andtherein giving additional information concerning the corrections he desired, and further

informing applicant that the amended application and supporting map must be filed in his

office on or before the 18th day of June (being 59 days from and after the 20th day of April,

1934), and said notice contained the further advice that, if the application, properly corrected,

be returned within 60 days, the same would be refiled, retaining the priority of its original

filing. This latter advice did not inform applicant whether the 60-day period started running

from the date of the mailing at Carson City, Nevada on April 20, 1934, or the date of its

receipt by applicant. The returned application and accompanying advice were actually

received at Elko, Nevada, by registered mail, by one W. H. Settlemeyer, the partner or

business associate of the said C. F. DeArmond, on the 24th day of April, 1934.On June 18, 1934, the said C. F. De Armond, as the agent of respondent, deposited in the

United States mail at Elko, Nevada, the amended application accompanied by a map, as

required by the state engineer. The same was delivered to and filed in the office of the state

engineer on the 20th day of June, 1934, 61 days from and after the 20th day of April, 1934,

the date upon which the same was mailed at Carson City, Nevada, by the state engineer.

Under date of June 25, 1934, the state engineer, by and through H. W. Reppert, assistant state

engineer, by letter addressed to respondent in care of C. F. DeArmond, at Elko, Nevada,

advised respondent as follows: “Your application No. 9709, which was filed with this office

on November 1, 1933, has been cancelled by this office for the reason that the amended

application, with supporting map, was not re-filed with this office within the statutory period

of sixty days.”On the last-mentioned date the state engineer, in like manner, made a similar notation of

cancelation upon the said original application and a similar record in the office of the state

engineer. Under date of April 23, DSSHOODQW+DUROG:P


1934, appellant Harold Wm. Merritt filed his application in the office of the state engineer for

said waters of said Martin creek, and which application was assigned serial No. 9742.

Appellants assign as error misconstruction by the trial court of the provisions of section7945 N. C. L., being section 60 of the water code, in annulling and setting aside the order of

the state engineer. The section reads: “Upon receipt of an application, which shall be upon a

blank form to be prescribed by the state engineer, and supplied the applicant without charge,

it shall be the duty of the state engineer to make an endorsement thereon of the date of its

receipt, and to keep a record of the same. If upon examination the application is found to be

defective, it shall be returned for correction or completion with advice of the reasons therefor,



and the date of the return thereof shall be endorsed upon the application and made a record of

his office. No application shall lose its priority of filing on account of such defects; provided,

the application, properly corrected and accompanied by such maps and drawings as may be

required, is filed in the office of the state engineer within sixty (60) days from the date of said

return to applicant. Any application returned for correction, or completion, not refiled in

proper form within the said sixty days shall be canceled. All applications which shall complywith the provisions of the act shall be recorded in a suitable book kept for that purpose.”

As noted in the foregoing statement of facts, respondent's amended application was filed

61 days after the return date endorsed on the application and 57 days after the defective

application was received.

The question presented for determination is whether the time for filing an amended

application begins to run from the return date endorsed on the application by the state

engineer or from the date it is received by the applicant or his authorized agent. The court

concluded that it begins to run from the date of receipt. Hence the judgment for respondent.


1. Respondent contends that the intention of the legislature that the time shall begin to run

from the date of receipt is manifested by the word “return” employed in the section, which, it

is argued, can be satisfied only by an actual, physical delivery of the defective application,

accompanied by the advice mentioned in the section, to the applicant or his agent. In support

of this argument we are referred to the definition of the word “return” as found in Webster's

New International Dictionary as follows: “To bring, carry, put, or send, back.”

We think the intention that the time for filing an amended application shall start to run

from the date endorsed on the defective application, even though it is prior to the date of

receipt, is plainly indicated by all the language of the section.Let us requote a part thereof having an immediate bearing upon the question: “If upon

examination the application is found to be defective, it shall be returned for correction or

completion with the advice of the reason therefor, and the date of return thereof shall be

endorsed upon the application and made a record of his office.”

Practical effect was given to this language by the method employed by the state engineer in

delivering the defective application to respondent. The date was endorsed upon it, a record

thereof made in his office, and the document at once started on the way to respondent through

the United States mail, an agency reasonably adapted to bring it to him without delay. This

method of delivery is not inhibited by the statute; it enables the state engineer to perform the

duties of his office in a convenient, orderly, and reasonable manner; and it seems to be alogical deduction that it is within the scope of the statute.

On the contrary, to give to said word “return” the meaning of actual physical delivery to an

applicant would involve a strained procedure in order to comply with the mandate that the

date thereof be endorsed upon the defective application by the state engineer.




To do this it would be necessary to hand it to the applicant, perhaps, in a remote part of the

state, at the same time endorsing the date of delivery upon it, or, to comply literally with the

idea of a complete return, get the defective application back from him, make such

endorsement, redeliver it, and thereafter make a record of the transaction in the office of the

state engineer. We are satisfied that no such procedure is contemplated by the statute, at least

exclusively. The word “return” is to be harmonized with the other parts of the section.

2. It is a cardinal rule of construction that a statute should be construed so as to give effect,

if possible, to all its parts. Garson v. Steamboat Canal Co., 43 Nev. 298, 185 P. 801, 1119.

And to effect this it is often necessary to restrict or extend the ordinary and usual meaning of

words. 59 C. J. 978.

We are referred to the cases of Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, and

Tuttle v. City of Boston, 215 Mass. 57, 102 N. E. 350, for a construction of the word “return”

in harmony with respondent's contention. These cases are not in point, because it is plain that

the constitutions involved contemplated an actual physical delivery.

Respondent contends that the section is one providing for notice, and refers us to the rulestated in 20 R. C. L. 343. The statute is not of that character. It is itself notice to all applicants

of how an application to appropriate the public waters of the state may be made effective.

3. Complaint is made of the state engineer having included in his advice the erroneous

statement that the amended application and supporting map must be filed in his office on or

before the 18th day of June, 1934 (being 59 days from and after the 20th day of April, 1934).

It is not apparent how the respondent was misled by this statement, as he did not deposit his

amended application in the post office at Elko, Nevada, addressed to the state engineer until

June 18, 1934. The advice this officer is required to give does QRWLQFOXGHLQIRUPLQJDQ DSSOLFDQWRIWKHWLPHZLWKLQZKLFKKHPD\OHJDOO\ILOHDQDPHQGHGDSSOLFDWLRQ


not include informing an applicant of the time within which he may legally file an amended

application.

The judgment should be reversed.

It is so ordered.

____________

ÐÐÐÐ56 Nev. 420, 420 (1936) Itcaina v. MarbleÐÐÐÐ

ITCAINA v. MARBLE

No. 3064

March 5, 1936. 55 P. (2d) 625.



1. Public Lands.Evidence held to establish that cattle raiser had acquired a subsisting right to water range livestock at

watering places in particular creek basin in sufficient numbers to utilize substantially all of disputed

public range, precluding sheep raiser from acquiring any right to such public range under 1925 statute

regulating watering of livestock on public land (Stats. 1925, c. 201, sec. 2).

2. Public Lands.In order to establish that use of public land for grazing sheep had not been “peaceable” so as to

establish a customary use within meaning of 1931 statute regulating use of public lands for grazing

purposes, it was not necessary to show that breaches of the peace had been committed toward sheep

raiser or his herders (Stats. 1931, c. 226, sec. 1).

3. Public Lands.Where cattle raiser, having right to use of public range and particular watering place, had consistently

protested sheep raiser's intrusion upon range except during one year when sheep raiser had leased grazing

range from cattle raiser, sheep raiser held not to have established right to use of such range on basis of a

continuous and peaceable use of range for five years preceding 1931 statute regulating grazing on public

range (Stats. 1931, c. 226, sec. 1).

4. Public Lands.Persons raising livestock on public land do so merely by sufferance of federal government and not by

any right, and public range land may at any time be withdrawn from such use or use permitted only under

government regulations.

5. Public Lands.In absence of government regulation concerning use of public range land, state may regulate use of

the unreserved and unappropriated public domain within its borders.

6. Public Lands.In regulating use of unreserved and unappropriated public domain within its borders, state legislature

may adopt such means as are adapted to end it seeks to accomplish, so long as they are within scope of

constitution and are not arbitrary or unreasonable.

7. Injunction.

State, in exercise of its police power, may authorize courts RIHTXLW\LQSURSHUFDVHVWR SURKLELWE\LQMXQFWLRQYLRODWLRQRISURYLVLRQVRIDVWDWXWHWKRXJKQRSURSHUW\ULJKWLV LQYROYHG


of equity in proper cases to prohibit by injunction violation of provisions of a statute, though no property

right is involved.

8. Public Lands.Provision of 1931 statute regulating grazing on public land, authorizing restraining of any violation of

statute by injunction, held valid (Stats. 1931, c. 226, secs. 1, 3, 4).

9. Constitutional Law.If object to be accomplished is conducive to public interest, state legislature may exercise a large

liberty of choice in means employed to enforce an exertion of its police power.

Appeal from Fourth Judicial District Court, Elko County; E. P. Carville, Judge.

Suit by Pete Itcaina against John E. Marble. From an order granting plaintiff an injunction



pendente lite, defendant appeals. Affirmed.

McNamara & Robbins, for Appellant:

We contend that there is no conflict in the evidence to the effect that both appellant and

respondent grazed and watered their livestock on the open unappropriated public domain

within the disputed area since the year 1909. The appellant placed such lands and the wholethereof and the waters in and upon said land to such beneficial use under his personal

supervision during said period of time, and the most that can be contended for by respondent

in this regard is that he used said lands and water during said period of time for the grazing

and watering of cattle by himself and through his predecessors in interest.

Our next contention is that the court is without authority to grant an injunction under the 1925

act, and for this reason should not have entertained the alleged cause of action based thereon

by the respondent for injunctive relief. We may say that the act itself is purely a criminal

statute, and its provisions, according to the act itself, enforceable only by criminal process, as

provided in section 4. We believe the court was in error in assuming that this question was

settled and determined by the supreme court in the case of Steptoe Livestock Co. v. Gulley et

al., 53 Nev. 163, 295 P. 772, and in the case of In re Calvo, 50 Nev. 125, 3


253 P. 671. It is a well-known principle of equity that its courts are in no sense courts of

criminal jurisdiction, and that an injunction will not be granted to restrain an act merely

criminal, where no property right is directly endangered thereby. Pomeroy's Equity

Jurisprudence, vol. 5 (2d ed.), pp. 4291, 4292; In re Debs, 158 U. S. 654, 39 L. Ed. 1092.Our next contention is that the legislature was without power to grant injunctive relief for

the enforcement of the provisions of the 1931 grazing act. We contend that under the

authorities cited in Justice Sanders' concurring opinion in the case of Hostetler v. Harris, 45

Nev. 43, 197 P. 697, and the following cases, the legislature had no such authority. Buford v.

Horitz (U.S.), 33 L. Ed. 618; Hill v. Winkler (N. M.), 151 P. 1014; Healey v. Smith (Wyo.),

83 P. 583; Anthony Wilkinson Livestock Co. v. McIlquain (Wyo.), 83 P. 364; Yates v. White

(N.M.), 235 P. 437; Richards v. Sanderson (Colo), 89 P. 769; McGuinis v. Friedman (Ida.),

17 P. 635. Under those cases it is apparent, at least to us, that a state is without power to

invest anyone with any property right of pecuniary nature in and to the open unappropriated

public domain.

Milton B. Badt, for Respondent:

So replete is the record with both oral and documentary evidence showing the subsistence

of the plaintiff's stock-watering right under the 1925 act, and which would be substantially

interfered with and impaired by defendant's grazing, and showing plaintiff's customary and

established use as a grazier under the 1931 act, all dating from prior to 1882, that the entire

transcript might be referred to on the question of the sufficiency of the evidence supporting



the injunction. Even under the testimony of the appellant's star witness it is clear that from the

very first time of Itcaina's encroachment with his sheep upon this cattle range, the Union Land

& Cattle Company continuously protested his encroachments and took active measures by

trying to sheep some of the territory before Itcaina reached it.


Two distinctions present themselves between the right of injunction under the 1925 statute

and the right of injunction under the 1931 statute. Under the 1925 statute, plaintiff has a real

property right which he seeks to protect and preserve through injunction; that is his

stockwatering right. Under the 1931 statute he has what many of the cases have called an

implied license, but which, in just as many state and federal cases, is referred to as a right. In

addition, however, the 1931 statute contains the express provision for the issuance of an

injunction. It is respectfully submitted that it is now well-established law that the state may,

in the exercise of its police powers, authorize courts in proper cases to restrain the violationof the provisions of legislative acts prohibiting the doing of certain things. Ex Parte Alliston

(Tex.), 90 S. W. 493, 3 L. R. A. (n.s.) 622; Campbell v. Peacock (Tex.), 176 S. W. 774;

Clopton v. State (Tex.), 105 S. W. 994; MacMillan v. Livestock Board (Miss.), 81 So. 169;

Rochester v. Gutberlett (N. Y.), 105 N. E. 548; State Board v. Frennor (Utah), 154 P. 941;

State Board v. Blair (Utah), 196 P. 221; State ex rel. Daniel v. Kizer (S. C.), 162 S. E. 444, 81

Am. St. Rep. 722.

The language of this court in Re Calvo, 50 Nev. 125, 253 P. 671, approving the opinion in

Sweet v. Ballentyne, 8 Ida. 431, 69 P. 995, is significant: “This exclusion of sheep owners

under certain circumstances does not interfere with any rights of a citizen of the United

States.” And the case of Allev. v. Bailey (Colo.), 14 P. (2d) 1087, seems to be determinative

of the very point raised here.

OPINION


This appeal is from an order of the Fourth judicial district court, granting an injunction

pendente lite, issued after hearing of an order to show cause. The parties will be referred to as

plaintiff and defendant.

Plaintiff, a cattle raiser, brought this suit to restrain GHIHQGDQWIURPZDWHULQJKLVVKHHSDW VSULQJVDQGZDWHUFRXUVHVVLWXDWHGLQWHUULWRU\LQ(ONR&RXQW\FRPPRQ O\NQRZQDQG

FDOOHG+DQNVFUHHNEDVLQDQGIURPJUD]LQJKLVVKHHSRQWKHSXEOLFUDQJHRIWKDWDUHD


defendant from watering his sheep at springs and water-courses situated in territory in Elko

County, commonly known and called Hanks creek basin, and from grazing his sheep on the

public range of that area.



The complaint is predicated upon three causes of action: First. That for more than forty

years, plaintiff and his predecessors in interest have been the owners of the right to use all of

the waters of Hanks creek basin and its tributaries and of certain described springs for

stock-watering purposes within the limit of said Hanks creek basin, and that the watering of

sheep by the defendant in said basin was violative of the 1925 stock-watering law. Second.

That plaintiff and his predecessors in interest have acquired the right to the exclusive use of all of the public lands within said Hanks creek basin under the 1931 stock-grazing act for

grazing cattle; that such right was acquired by virtue of such use for a period of more than

forty years last past; and that the grazing of sheep by defendant within the limits of Hanks

creek basin was violative of said stock-grazing act. Third. That such watering and gazing of

sheep by defendant was violative of the terms of an oral agreement between plaintiff and

defendant for a division of the public range, entered into March 1, 1927, whereby defendant

agreed to confine the grazing of his sheep to areas outside of Hanks creek basin, which

agreement was a part of the consideration of a written agreement later executed between them

in which plaintiff agreed to sell, and defendant agreed to buy, a large area of land, together

with certain forest reserve rights and permits, for the sum of $122,700, payable in

installments, and on which the sum of $70,000 had been paid.Defendant claimed an established use of said waters for watering sheep. He also claimed

an established use for grazing his sheep in Hanks creek basin by force of the 1931

stock-grazing act. He denied any agreement as to a division of the range.

At the conclusion of the hearing, which extended through a number of days, during which

considerable testimony was given and evidence adduced on the part RIERWKSDUWLHVWKH FRXUWUHQGHUHGDQRUDORSLQLRQZKLFKZDVUHGXFHGWRZULWLQJDQGLVLQFOXGHGDPRQJWKH

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of both parties, the court rendered an oral opinion which was reduced to writing, and is

included among the papers constituting the record on appeal. No formal findings were made.

The court decided that plaintiff was entitled to an injunction on all three causes of action

alleged in the complaint. But the relief sought by plaintiff was granted only in part by

confining it to the major portion of the public lands in said Hanks creek basin. A right of way

was reserved to defendant by the injunction to permit him to drive his sheep across the

southern part of the public range affected by it to and from lands owned by him.

The errors relied upon for a reversal of the order granting the injunction pendente lite, are

as follows: First. That said order is contrary to, and not supported by, the evidence. Second.That the trial court was without jurisdiction of the first cause of action alleged, because the

act of the legislature, being chapter 201, Statutes of 1925, under which it was laid, does not

authorize the issuance of the injunction. Third. That the trial court was without jurisdiction as

to the second cause of action alleged, or to grant any injunction thereunder, because chapter

226, Statutes of 1931, under which it was brought, does not invest any customary user of

unappropriated public domain with title thereto or estate therein sufficient upon which to base

an injunction. Fourth. That the court erred in permitting any testimony to be introduced as to



the oral agreement alleged in the third cause of action, and was without jurisdiction to issue

an injunction for the claimed breach of the oral contract.

Section 2 of the former act reads: “Whenever one or more persons shall have a subsisting

right to water range live stock at a particular place, and in sufficient numbers to utilize

substantially all that portion of the public range readily available to livestock watering at that

place, no appropriation of water from either the same or a different source shall subsequentlybe made by another for the purpose of watering range live stock in such numbers and in such

proximity to the ZDWHULQJSODFHILUVWPHQWLRQHGDVWRHQDEOHWKHSURSRVHGDSSURSULDWRUWR GHSULYHWKHRZQHURURZQHUVRIWKHH[LVWLQJZDWHUULJKWRIWKHJUD]LQJXVHRIVDLGSRUWLRQ RIWKHSXEOLFUDQJHRUWRVXEVWDQWLDOO\LQWHUIHUHZLWKRULPSDLUWKHYDOXHRIVXFKJUD]LQJ

XVHDQGRIVXFKZDWHUULJKW´


watering place first mentioned, as to enable the proposed appropriator to deprive the owner or

owners of the existing water right of the grazing use of said portion of the public range, or tosubstantially interfere with or impair the value of such grazing use and of such water right.”

Section 4 of the act makes a violation of the above provision a misdemeanor. The act does

not provide for granting an injunction.

Section 1 of said act of 1931, insofar as it is applicable to the facts of this case, reads: “It

shall be unlawful to graze live stock on any part of the unreserved and unappropriated public

lands of the United States in the State of Nevada, when such grazing will or does prevent,

restrict or interfere with the customary use of such land for grazing live stock by any person

who, by himself or his grantors or predecessors, shall have become established, either

exclusively or in common with others, in the grazing use of such lands by operation of law or

under and in accordance with the customs of the graziers of the region involved; provided,that this act shall not prohibit the grazing on any part of such public lands of live stock

owned, kept or used for work or milking purposes by any ranch owner or bona fide settler, for

his domestic use, as distinguished from commercial use, nor prohibit the grazing of any live

stock necessary for and used in connection with any mining or construction work or other

lawful work of similar character. Customary or established use as graziers, otherwise than

under the operation of law, as herein used, shall be deemed to include the continuous, open,

notorious, peaceable and public use of such range seasonably for a period of five years or

longer immediately prior to the approval of this act by the person or his grantors and/or

predecessors in interest except in cases where initiated without protest or conflict to prior use

or occupancy thereof. It is further provided that any change in such customary use so

established shall not be made hereafter so as to prevent, restrict RULQWHUIHUHZLWKWKH FXVWRPDU\RUHVWDEOLVKHGXVHRIDQ\RWKHUSHUVRQRUSHUVRQV´


or interfere with the customary or established use of any other person or persons.”



Section 3 makes a violation of the act a misdemeanor punishable by fine or imprisonment

in the county jail, or both, and provides for the recovery of damages.

Section 4 prescribes: “The violation of any provision of this act may be restrained by

injunction, issued by a court of competent jurisdiction, pursuant to the provisions of law and

principles of equity relating to injunctions.”

The act is an exertion of the police power of the state for the purposes declared in itspreamble, of preventing controversies often leading to breaches of the peace, and of securing

the peaceful and most economical use of the public lands of the state, by protecting the

grazing uses established by customs based on the experience of graziers.

We think the injunction is amply supported by the evidence. It is quite voluminous, and,

while we have carefully reviewed all of it, we deem it unnecessary to more than outline it.

1. Plaintiff acquired considerable land adjacent to Hanks creek basin by purchase from the

receiver of the Union Land & Cattle Company in the latter part of the year 1925, and there

engaged in the business of cattle raising. Substantially the same lands have been owned in

turn by plaintiff's predecessors in interest extending back to the firm of Mason & Bradley,

whose ownership dates to about 1882. These owners were engaged extensively in the

cattle-raising business, and all of them throughout their ownership used said Hanks creek basin and other adjacent public lands for summer and fall range for the grazing of large

numbers of their cattle. This use was contemporaneous with the use of the waters of Hanks

creek basin for the watering of such stock. The evidence shows, without conflict, that such

use of the basin was practically exclusive until the defendant commenced bringing his sheep

into the basin in 1909. Plaintiff's immediate predecessors in LQWHUHVWRZQHGVKHHSDVZHOODV FDWWOH


interest owned sheep as well as cattle. But the evidence discloses that the sheep were

generally handled on ranges outside of Hanks creek basin, reserving the basin exclusively for

their cattle, except in 1913, when sheep were sheared in the basin. Plaintiff, like his

predecessors in interest, used the basin for the ranging of his cattle. He began such use in

1926, when he put 1,000 head of cattle on the range and leased the privilege to H. Moffat &

Co. to range cattle in the basin.

That company put out on the range, including Hanks creek basin, in that year, about 5,700

head of cattle. Plaintiff used Hanks creek basin seasonally thereafter for grazing purposes

either with his own cattle or by leasing the privilege to other stockmen and sometimes in both

ways. In 1929 he allowed H. Moffat & Co. to run 2,500 head of cattle on his range, and heput out 1,500 head. In 1930, in addition to the cattle of other stockmen grazing in Hanks

creek basin under lease from him, he had 2,000 head grazing there. He made the same use of

the basin in 1931. In 1932 plaintiff had 2,500 head of cattle on his range, and the number of

cattle of other stockmen grazing there under lease from him had been reduced to less than

1,000 head. Plaintiff gradually increased the number of cattle grazing on the range as the

cattle of other owners accustomed to graze over it were withdrawn.

The evidence brings plaintiff within the protection intended to be afforded by the statute of



1925; that is to say, it shows that he has a subsisting right to water range livestock at the

watering places in Hanks creek basin in sufficient numbers to utilize substantially all that

portion of the public range readily available to livestock watering at such places, and that

such portion of the public range included all of the disputed area.

2, 3. It is contended that the most proved was, the parties have a right in common as to the

watering right and grazing use in that region. This is based upon the evidence which showsthat the defendant commenced watering and grazing his sheep in that region in 1909, ZKLFK KDVFRQWLQXHGVLQFHWKDWGDWHDQGXSRQH[SUHVVLRQVLQWKHFRXUWVRUDORSLQLRQWRWKH HIIHFWWKDWDULJKWDQGXVHLQFRPPRQKDGEHHQWKXVHVWDEOLVKHGDVWRWKHZDWHUDQG

UDQJH


which has continued since that date, and upon expressions in the court's oral opinion to the

effect that a right and use in common had been thus established as to the water and range. The

trial court said, in its oral opinion: “This court is satisfied, from the evidence, that HanksCreek Basin was used exclusively for cattle from 1882 to 1909, by the plaintiff's predecessors

in interest, and a stock watering right for cattle was established in Hanks Creek Basin over

that period of years. And then the defendant began to use the Basin for his sheep, beginning

the use there in about the year 1909; that plaintiff's predecessors in interest then changed to a

certain extent the use of the range and water from cattle to sheep, for period of time; and, as I

interpret the evidence, this was presumably to hold the range as against the defendant, since

the Court is satisfied that cattle and sheep cannot range together upon a given range to any

benefit, and evidently this condition has continued to a greater or less degree as the years

went by down to the present time. But the defendant has persisted in the use of the range in

that Basin for sheep, while plaintiff's predecessors used it for cattle and attempted to maintainit as a cattle range by protest and by grazing sheep to keep the defendant's sheep off. This, in

the Court's opinion, changed somewhat the nature of the use of the water and the range and

created a use in common, so far as the sheep of defendant and plaintiff's predecessors in

interest were concerned, but did not change the use with respect to the grazing of cattle. As

the Court has indicated before, the Court considers that cattle cannot be really a common user

upon the same range between cattle and sheep. The evidence disclosed that cattle were turned

upon a range from the lands south and east of Hanks Creek Basin, and allowed to graze the

Hanks Creek Basin. They were even pushed north in what is known as Stud Basin, and

ranged year after year from the year 1882, and, of course, with the exception of the change

that the Court has referred to, that condition has continued over this period of years. AndVLQFHGHIHQGDQWKDVDOVRJUD]HGKLVVKHHSLQ+DQNV&UHHN%DVLQDQGDVWKH&RXUW LQGLFDWHGVRPHZKDWXQGHUSURWHVWE\ZRUGVDQGDOVRE\WKH8QLRQ/DQG&DWWOH

&RPSDQ\KDYLQJVKHHSLQWKHUHLQRUGHUWRFRPSHWHZLWKKLP




since 1909 defendant has also grazed his sheep in Hanks Creek Basin, and, as the Court

indicated, somewhat under protest by words and also by the Union Land & Cattle Company

having sheep in there in order to compete with him. The Court is convinced that the

defendant continuously used a portion of this range after he become established there.”

Also, in the course of its opinion, the court said: “I believe, as a court of equity, I have the

right to establish that boundary in accordance with the equities of the case, as they arepresented under the evidence before the Court. In order to do this the Court considers it must

take into consideration that the plaintiff and his predecessors established a right to graze

sheep in the year 1909; and since cattle and sheep cannot be economically grazed on the same

range there should be a division of the range in question based upon the priorities of the

respective parties; that is, that the priorities should determine the amount of range to be

allowed to each.”

Proceeding on the theory indicated in the opinion, the trial court, as previously noted,

divided the public range in Hanks creek basin by confining the injunction to only a major part

thereof. The court having found as defendant contends, that a right in the waters and grazing

use of the range in common had been established since 1909, its action in using the priorities

of the parties as a yardstick to measure the same is attacked as arbitrary and unlawful.We think the court fell into error in concluding that such a right and use in common had

been established. The establishment of a grazing use in the range in question by the defendant

was never acquired under the provisions of the statute of 1931, under which he claims. One

of the elements prescribed by the statute to constitute customary or established use as a

grazier is that the use must be peaceable for the period required. As we have seen, the trial

court itself stated that plaintiff's predecessors in interest protested defendant's use of the range

by words and by having sheep in there to FRPSHWHZLWKKLP


compete with him. The evidence shows that, during the years after defendant commenced

bringing his sheep into the basin, plaintiff's predecessors in interest, and plaintiff, by their

employees frequently ordering defendant's herders from the disputed territory and by words to

defendant himself, consistently protested defendant's intrusion on the range. It is not

necessary to show that breaches of the peace had been committed towards defendant or his

herders to establish that his use of the basin with his sheep was not peaceable. There is

another element that is essential to the establishing of a grazing use under the statute, which is

absent in defendant's case. Mr. Wright, plaintiff's manager, testified that in 1927 he leased the

grazing privilege in Hanks creek basin to defendant for that year for the sum of $1,000, andhis sheep were grazed there during that year under that lease. One thousand dollars was

deposited in the Elko bank by defendant to plaintiff's credit on June 27, 1927. On the deposit

slip it was noted that the sum was for “Hanks Creek Basin Feed.” The defendant's testimony

in explanation of this does not conform to our idea of substantial evidence. His grazing use of

Hanks creek basin during the season of that year was in subordination of plaintiff's use. This

being so, there was no continuous grazing use of Hanks creek basin by the defendant, as

required by the statue of 1931.



However, independently of the act of 1931, we think plaintiff's right to the use of the

waters of Hanks creek basin for the purpose of watering stock, and the grazing use of the

public range thereon, were established under the act of 1925.

The court said, as previously stated: “This court is satisfied, from the evidence, that Hanks

Creek Basin was used exclusively for cattle from 1882 to 1909 by plaintiff's predecessors in

interest, and a stock watering right for cattle was established in Hanks Creek Basin over thatperiod of years.” This is supported by the evidence. This right was acquired by plaintiff. By

virtue of the act of 1925, plaintiff's use thereunder EHFDPHH[FOXVLYH


became exclusive. As to defendant having acquired any right in the waters of Hanks creek

basin in common or otherwise, under the 1925 act or otherwise, it is clear that he did not nor

could not. He did not attempt to appropriate any of such waters prior to 1909. Consequently

he could not have initiated any right to the use of such waters without due application to thestate engineer. This, it is conceded, was not done.

The 1925 act has been held by this court to be a valid exercise of the police powers of the

state. In re Calvo, 50 Nev. 125, 253 P. 671. Under its provisions, by reason of plaintiff's

subsisting right to the use of all the waters in Hanks creek basin, he could not be deprived of

the grazing use of any portion of the public range readily available to the plaintiff's cattle. It is

not contended that such areas do not include the entire disputed territory. Consequently, the

watering and grazing of defendant's sheep within these areas would deprive plaintiff of the

grazing use thereof, for, as the court said and the evidence disclosed, cattle will not stay on

the range grazed by sheep. As defendant established no watering rights or grazing use in the

disputed territory, it is difficult to see how he was prejudiced by the court's declining to

enjoin him from a part thereof. There is no merit in defendant's contention that a right to theuse of waters in the disputed territory was conveyed to him by the written agreement for the

conveyance of lands, alleged in the complaint. Those lands are not in that area.

4. Defendant contends that the court was not authorized to issue the injunction under the

1931 grazing act, because such act does not invest plaintiff with title to or estate in the public

domain. Ordinarily courts of equity have no jurisdiction at the suit of another to restrain a

person from grazing his livestock on such lands. No property right can be acquired by such

use. All persons so using the public domain do it merely by sufferance of the federal

government or, as it is sometimes designated by the courts, by virtue of an implied license.


This use is often alluded to as a right. It is not a right that the government of the United States

has conferred, and these public range lands may at any time be withdrawn from such use or

the use permitted only under government regulations, as in the case of forest reserves. Buford

v. Houtz, 133 U. S. 320, 10 S. Ct. 305, 33 L. Ed. 618; Omaechevarria v. Idaho, 246 U. S. 343,



38 S. Ct. 323, 62 L. Ed. 763; United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L.

Ed. 563; In re Calvo, 50 Nev. 125, 253 P. 671.

5. However, in the absence of government regulations, the state may regulate the use of the

unreserved and unappropriated public domain within its borders. In re Calvo, 50 Nev. 125,

253 P. 671, and federal and state cases cited therein; McKelvey v. U. S., 260 U. S. 353, 43 S.

Ct. 132, 67 L. Ed. 301; Bown v. Walling, 204 U. S. 320, 27 S. Ct. 292, 51 L. Ed. 503; Allenv. Bailey, 91 Colo. 260, 14 P. (2d) 1087, 1091. The court, in the last-cited case quoted

approvingly from 50 C. J., p. 888, as follows: “As owner of the public lands the United States

has the same right and dominion over them that any other owner would have, and may protect

the same from depredation. Congress is vested by the constitution with the power to control

and to make all needful rules and regulations with respect to the public domain, and the

exercise of such power cannot be restricted by state legislation. But the states may also

prescribe reasonable police regulations applicable to public land areas, insofar as such

regulations do not conflict with congressional enactment or if congress has not acted.”

6. In the exercise of this conceded power, the state may adopt such legislative means as are

adapted to the end it seeks to accomplish, so long as they are within the scope of the

constitution and not prohibited by it and are not arbitrary or unreasonable. Omaechevarria v.

Idaho, supra; McKelvey v. United States, supra.

7, 8. By the 1931 grazing act, the legislature has determined that its purpose can be best

accomplished E\VHFXUL QJLQWKHLUXVHWKRVHJUD]LHUVZKRKDYHHVWDEOLVKHGWKHPVHOYHVDV VXFKE\WKHFRQWLQXRXVRSHQQRWRULRXVSHDFHDEOHDQGSXEOLFXVHRIVDLGODQGV

VHDVRQDOO\IRUDSHULRGRIILYH\HDUVRUORQJHULPPHGLDWHO\SULRUWRWKHDSSURYDORIWKHDFW


by securing in their use those graziers who have established themselves as such, by thecontinuous, open, notorious, peaceable and public use of said lands seasonally for a period of

five years or longer immediately prior to the approval of the act. It has likewise determined

that the remedy of injunction is one of the means best adapted to enforce the purposes of the

act.

We are of the opinion that it had power to confer upon courts of equity jurisdiction of a

case arising under the statute notwithstanding no property right could be invaded by one

violating the provisions of the act. It is well settled that the state, in the exercise of its police

powers, may authorize courts of equity in proper cases to prohibit by injunction the violation

of the provisions of an act of the legislature, though no property right is involved. Board of

Medical Examiners of State of Utah v. Freenor, 47 Utah, 430, 154 P. 941, Ann. Cas. 1917e,1156; Board of Medical Examiners v. Blair, 57 Utah, 516, 196 P. 221; Ex Parte Allison, 48

Tex. Cr. R. 634, 90 S. W. 492, 13 Ann. Cas. 684; McMillan v. Livestock Board, 119 Miss.

500, 81 So. 169; Rochester v. Gutberlett, 211 N. Y. 309, 105 N. E. 548, L. R. A. 1915d, 209,

Ann. Cas. 1915c, 483; Clopton v. State (Tex. Civ. App.), 105 S. W. 994; Campbell v.

Peacock (Tex. Civ. App.), 176 S. W. 774.

In the case of Board of Medical Examiners v. Blair, supra, the law of Idaho under

consideration was one granting to the board of medical examiners the right to institute a civil



action to enjoin anyone from practicing medicine without a license. The act also defined what

shall constitute the practice of medicine and made such practicing without a license a

misdemeanor and provided a penalty therefor. It was held that the state, in the exercise of its

police power, could confer upon courts of equity authority to enjoin the violation of the act.

To the same effect is Board of Medical Examiners v. Freenor, 47 Utah, 430, 154 P. 941,

942, Ann. Cas. 1917e, 1156, in which a great deal of authority is cited supporting the rule.The court said: “Unless prevented E\VRPHFRQVWLWXWLRQDOSURYLVLRQZKLFKLVQRWFODLPHG ZHWKLQNWKH/HJLVODWXUHKDGWKHSRZHUWRFKDQJHDEROLVKRUHQDFWUXOHVRIHTXLW\DQG KHQFHDUHZHRIWKHRSLQLRQWKDWWKHFRXUWE\UHDVRQRIWK HVWDWXWHKDGMXULVGLFWLRQWR

SURFHHGDVLWGLG´


by some constitutional provision, which is not claimed, we think the Legislature had the

power to change, abolish, or enact rules of equity, and hence are we of the opinion that the

court, by reason of the statute, had jurisdiction to proceed as it did.”The court in that case quoted from the case of Allopathic State Board of Medical

Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809, as follows: “The General Assembly,

having the authority to attach prior conditions to the practice of medicine, was vested with the

right to enforce enactments on that subject by prescribing penalties for violations of the same,

either by fine, by imprisonment, or by civil remedies. The right to practice medicine being

conditioned by law upon the prior obtaining of a certificate from a medical board, * * *

plaintiffs were clearly authorized (under an act), when they had reason to believe that

defendant was violating the law in this respect, to test the facts of the case through

injunction.”

9. If the object to be accomplished is conducive to the public interest, the legislature mayexercise a large liberty of choice in the means employed to enforce an exertion of its police

powers. Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385.

The case of Allen v. Bailey, supra, is decisive of the point in question. A law of Colorado,

known as the public domain range act, regulating the grazing of a certain extensive range as

to cattle and sheep, provided for injunctive relief. A violation of the act was made a

misdemeanor punishable by fine or imprisonment or both. The constitutionality of the act was

upheld in the above case and the injunctive feature sustained. Speaking on the last point, the

court said, in part: “Defendants chafe under the injunction and restraining order features of

the act, but without reason. In this respect, it is an advancement over the Idaho statute, which

does not contain such a provision, but injunctions are granted in instances too numerous to

mention. * * * Language used in a liquor case, decided in Eilenbecker v. District Court

Plymouth County, 134 866&W/(GLVDSURSRV


U. S. 31, 40, 10 S. Ct. 424, 427, 33 L. Ed. 801, is apropos. The court said: ‘Certainly it seems



to us to be quite as wise to use the processes of the law and the powers of the court to prevent

the evil as to punish the offense as a crime after it has been committed.' See, also, Mugler v.

Kansas, 123 U. S. 623, 673, 8 S. Ct. 273, 31 L. Ed. 205. The Colorado act in question may be

said to give recognition to the adage that ‘an ounce of prevention is worth a pound of cure,'

and to withhold injunction in a proper case would deprive courts of one of their most

powerful resources. ‘The power to punish for contempts is inherent in all courts.' Eilenbeckerv. District Court, supra, at page 37 of 134 U. S., 10 S. Ct. 424, 426, 33 L. Ed. 801, and we

refer once more to the above quotation from McKelvey v. United States, wherein it is said

that regulations to which the state power extends are ‘measures to prevent breaches of the

peace,' etc. (The italics are ours.) We do not find any feature of the 1929 act involved in this

proceeding that merits our disapprobation.”

As the injunction was authorized under the 1931 act, it is unnecessary to determine

whether it was also authorized under the 1925 act. For the same reason it is unnecessary to

determine whether the court erred in permitting testimony to be introduced as to the alleged

oral agreement or whether it had jurisdiction to issue an injunction for the claimed breach

thereof. We considered all other contentions made by defendant and found them to be without

merit.The order directing the issuance of the temporary injunction is affirmed.

Coleman, J., concurring:

I concur in the opinion of the chief justice and in the order, but wish to give expression to

one or two ideas not expressed by him.

Aside from the legal points made by counsel for defendant, he bears down with vigor upon

the proposition that the judgment of the lower court is inconsistent, in that it concluded that

equity demanded that HDFKSDUW\ZDVHQWLWOHGWRDSRUWLRQRIWKHUDQJHLQTXHVWLRQDQG KHQF HWKHRUGHUDSSHDOHGIURPVKRXOGEHUHYHUVHG


each party was entitled to a portion of the range in question, and hence the order appealed

from should be reversed.

In considering the contentions made by the defendant on this appeal we must keep in mind

the fact that, pursuant to statute (Stats. 1935, p. 202, sec. 28), this court may reverse, affirm,

or modify the judgment appealed from; furthermore, that cases are appealed for the correction

of errors (Water Co. of Tonopah v. Tonopah Belmont Dev. Co., 50 Nev. 24, 249 P. 565), and

that, if a judgment is right, though a wrong reason is given for it, there should be no reversal(Richards v. Vermilyea, on rehearing, 42 Nev. 299, 300, 180 P. 121).

With the foregoing rules in mind, let us briefly review the facts. Plaintiff and his

predecessors admittedly had enjoyed the right to range cattle in Hanks creek basin from 1882

to 1909 as a cattle range. In the last-mentioned year the defendant first began to graze his

sheep therein. Prior to 1905, water was appropriated for irrigation and livestock purposes by

simply putting it to a beneficial use. In 1905 the legislature (Stats. 1905, p. 67) enacted that

one desiring to appropriate public waters should file with the state engineer his written



application and follow that up as in said act provided. Such has been the law down to the

present time. It is not even suggested that the defendant ever appropriated or acquired a water

right in Hanks creek basin. We have a right to take judicial notice of matters of public

knowledge, such as the climatic and range conditions in this state, and that livestock cannot

exist upon the public range unless there is water available for them to drink.

So far as appears from the record in this case, plaintiff owns all the water in Hanks creek basin; defendant owning none. It is clear that defendant's sheep had to quench their thirst with

water owned by plaintiff. While the public domain is free to all, such right is subject to such

restrictions as the state may impose as a matter of police regulation. In re Calvo, 50 Nev. 125,

253 P. 671. In 1925, as pointed out by the chief justice, the OHJLVODWXUHHQDFWHGDODZ UHJXODWLQJWKHXVHRIWKHSXEOLFGRPDLQZLWKUHIHUHQFHWRWKHDSSURSULDWHGZDWHUV

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legislature enacted a law regulating the use of the public domain with reference to the

appropriated waters thereon. So far as appears from the record, having in mind the 1925 act,

the defendant did not and could not under the facts, show himself to be entitled to range his

sheep in Hanks creek basin. This situation continued until the bringing of this suit. Such

being the fact, the defendant could not acquire, except in a peaceable manner, a right to graze

his sheep in Hanks creek basin, between 1925 and the bringing of this suit. That he did not

acquire such peaceable right is clear. Plaintiff constantly protested the presence of defendant's

sheep in the basin, except in 1927, when an agreement was entered into between the parties.

Certainly it was not incumbent upon plaintiff to commit some overt act constituting a breach

of the peace to establish the fact that defendant's grazing in the basin was not peaceable.

There were no formal findings of facts in this case, and we must look to the oral opinion of the lower court to ascertain what facts he found to have been established by the evidence. The

chief justice has quoted from it at length, and I shall refer to only portions thereof. The court

said: This, in the Court's opinion, changed somewhat the nature of the use of the water and

the range and created a use in common, so far as the sheep of defendant and plaintiff's

predecessors in interest were concerned, but did not change the use with respect to the

grazing of cattle.”

We must interpret this language. What did the court mean by the language used? He held

there was a use in common as to sheep, but not as to cattle.

Prior to making the statements quoted, the court had recognized that the plaintiff and his

predecessors had used the range exclusively as a cattle range, except for a period “to hold therange against defendant, since the court is satisfied that cattle and sheep cannot range

together.”

It is true that the court said at another place that the defendant continuously used a

“portion” of this range after he became “established” thereon. The word ³SRUWLRQ´LVWRR LQGHILQLWHWRGHVHUYHFRQVLGHUDWLRQ




“portion” is too indefinite to deserve consideration. The same may be said of “established” in

the connection in which it is used.

Under the evidence, the facts found by the trial court, and the law, the temporary

injunction was properly ordered.

Taber, J., concurring:

I concur in the order of affirmance, and will very likely file a concurring opinion. If I

decide upon that course, the opinion will be filed not later than the 16th instant.

Concurring Opinion

March 16, 1936.

Taber, J.:

On this appeal we are not permitted to base a decision upon our own independent ideas of what would be most just and equitable in view of the facts and circumstances disclosed by the

record. We are confronted with and bound by certain statutory enactments, particularly the

water law of March 22, 1913, as amended, sections 7890-7978 N. C. L., the livestock

watering law of April 1, 1925, Laws 1925, c. 201, sections 7979-7985 N. C. L., and the

public lands grazing act of March 30, 1931, Laws 1931, c. 226, sections 5581 to 5581.06 N.

C. L. This court has heretofore decided that the first two of the above-mentioned acts are

constitutional. The constitutionality of the grazing act of 1931 as a whole is not attacked on

this appeal, though appellant does contend that the legislature was without power to authorize

any court to issue an injunction as provided in section 4 of said act (section 5581.03 N. C. L.).

We are clearly of the opinion that this contention is not sound.

I agree with appellant that the trial court was not authorized to divide the range or create a

right of way. As I view the 1931 act, one either has or has not an established customary use

for grazing livestock on public lands, exclusively or in common. If at the time this suit was

instituted defendant had established a customary use in common for the grazing of his sheep

on the SXEOLFODQGVGHVFULEHGLQWKHFRPSODLQWWKHWULDOFRXUWFRXOGQRWGHSULYHKLPRIRU PDNHDQ\FKDQJHRUPRGLILFDWLRQLQVXFKFXVWRPDU\XVHHLWKHUDVWRWKHDUHDVLQYROYHGRU

WKHH[WHQWDQGFKDUDFWHURIKLVXVH


public lands described in the complaint, the trial court could not deprive him of or make any

change or modification in such customary use, either as to the areas involved or the extent

and character of his use. In other words, if defendant had established such a use, he was

entitled to be fully protected therein, both as respects its nature and extent. I do not say

whether it would have been wiser for the legislature to provide, as in Colorado, that the courts

may divide the range, or, as in Idaho, that “the priority of possessory right between cattle and

sheep owners to any range, is determined by the priority in the usual and customary use of



such range, either as a cattle or sheep range” (Code Idaho 1932, sec. 24-1607); but, as our

legislature has not seen fit to include such provisions in any of our statutes, it is my opinion

that trial courts cannot, under the provisions of the 1931 grazing act, divide the range or

provide rights of way on any theory of economic use, priority in use, or on any general theory

of public welfare.

If, however, at the time this action was commenced, defendant had not, within themeaning of the act of 1931, established himself as a customary user, the action of the trial

court in dividing the range and providing a right of way, though erroneous, was not

prejudicial to defendant, and therefore not ground for reversal.

Whether defendant was an established customary user depends, among other things, upon

whether his use was peaceable. I have found the following authorities to be of some

assistance in construing the meaning of the word “peaceable,” as used in the first section of

the 1931 grazing act: Hazas v. State, 25 Ariz. 453, 219 P. 229, at page 231; Lawson on

Usages and Customs, sec. 31; Clarke's Browne on Usages and Customs, sec. 20; 27 R. C. L.

sec. 3; 17 C. J. sec. 32. And see Union Mill & Min. Co. v. Dangberg, 2 Sawy. 450, 24 Fed.

Cas., p. 590, No. 14370. As the textbooks above cited are not in many private or county law

libraries, I quote the following sentences from Lawson, loc. cit.: “A custom must have beenpeaceable, and acquiesced in, and not disputed DWODZRURWKHUZLVHIRUFXVWRPVRZHWKHLU

RULJLQWRFRPPRQFRQVHQWDQGWKLVFDQQRWEHLQWHQGHGLQGLVSXWHGFDVHV


at law or otherwise; for customs owe their origin to common consent, and this cannot be

intended in disputed cases. If it has been the subject of contention and dispute it has not

recommended itself as expedient to all, and the fact that it has proved a convenience to some,

is counteracted by the fact that it has also proved an inconvenience to many. But thenon-consent of these is as powerful as the consent of those; and as customs, to be valid, owe

their efficacy to common consent, the fact that they have been immemorially disputed proves

that universal consent was wanting. * * *” Section 20 of Clarke's Browne, above cited, reads

the same as the second and third sentences just quoted from Lawson, and for that reason need

not be set forth here. Some of the testimony of plaintiff's witnesses, James Russell, William

Murdock, William H. Woody, and William B. Wright, and defendant's witnesses, R. W.

Anderson, Pete Chevalier, and Pete Olabarria, convinces this court that the trial court was

clearly wrong in impliedly finding that defendant's use of the range in question was

“peaceable” within the meaning of that word as used in section 1 of the 1931 grazing act

(section 5581 N. C. L.).The bearing of the general water law of 1913 upon the question of the respective water

rights of the parties, and the operation of the livestock watering law of 1925 as protecting

plaintiff in his range and water rights in the Hanks creek basin, are discussed in the opinions

of my associates.

____________



ÐÐÐÐ56 Nev. 442, 442 (1936) Wittenberg v. WittenbergÐÐÐÐ

WITTENBERG v. WITTENBERG

No. 3093

March 5, 1936. 55 P. (2d) 619.

1. Trial.

Trial court, in passing upon credibility of witnesses and weight to be given their testimony, may

consider business association or consanguinity of witness to parties.

2. Divorce.

In divorce suit, where reviewing court is of opinion that findings of trial court are not warranted by

evidence, judgment must be reversed, notwithstanding findings are supported by substantial evidence.

3. Divorce.

Evidence supported judgment granting husband divorce on ground of wife's desertion.

4. Divorce.Condonation is an affirmative defense in divorce suit, and generally should be specially pleaded.

5. Divorce.

Condonation as defense to divorce suit based on desertion could not be urged for first time on appeal.

6. Divorce.

Corroboration of plaintiff's testimony relating to grounds for divorce is not required where trial court

or jury is convinced of truthfulness of plaintiff's testimony (Comp. Laws, sec. 9467.02)

7. Divorce.

Where there was no evidence of collusion in divorce suit, statute requiring corroboration of evidence

of party's residence did not apply (Comp. Laws, sec. 9467.02).

8. Divorce.

Generally, spouse at fault in original separation who desires to resume marital relations to preventstatutory desertion must make unconditional offer in good faith to return and resume marital status.


Reviewing court could not consider alleged errors where counsel failed to state in oral argument or

briefs wherein rulings were erroneous.

10. Appeal and Error.Although there is no rule preventing reviewing court from considering alleged errors not discussed in

briefs or oral argument, reviewing court will not ordinarily consider such errors.

11. Appeal and Error.Where reviewing court, after reading portions of record upon which assignments of error are

predicated, is clearly convinced that any of rulings were patently erroneous and prejudicial, errors will be

considered as if discussed in briefs and oral argument.


12. Appeal and Error.Where reviewing court, after reading portions of record upon which assignments of error were

predicated, was not convinced that any ruling was prejudicial, independent investigation would not be



made to determine whether rulings were correct.

13. Appeal and Error.Where trial court on last day of trial warned counsel that testimony could not be taken after 10 o'clock

that evening, refusal to extend time held not prejudicial error, especially where appellant did not object or

except to ruling.

14. Appeal and Error.Where judgment on merits is being reviewed, consideration is limited to contents of judgment roll and

bill of exceptions as settled by trial court (Comp. Laws, sec. 8903).

15. Appeal and Error.Where appellant's motion for remand of bill of exceptions for inclusion of certain depositions was not

supported by proper showing, motion would be denied (Comp. Laws, sec. 8903).

Appeal from Fifth Judicial District Court, Nye County; L. O. Hawkins, Judge, presiding.

Divorce suit by Charles F. Wittenberg against Elizabeth S. Wittenberg, who filed a

cross-complaint. From a judgment for plaintiff, defendant appeals. Affirmed.

Walter Rowson, for Appellant:With all due respect to the trial court, we feel that the evidence in this case is so

preponderantly in favor of the defendant that the customary disinclination of appellate courts

to disturb the findings of the courts below, where the evidence is conflicting, cannot be

justifiably invoked here. There can be no doubt that the original separation of the parties was

by mutual understanding, either expressed in words or implied from plaintiff's conduct.

Plaintiff's letter of May 5, 1930, coupled with his admitted successive week-ends with

defendant at the Hot Creek ranch to and including June 8, 1930, conclusively supports

defendant's testimony. It is notable that plaintiff offered nothing by way of traverse or

explanation of the purpose of defendant's trip to the ranch on May 4, 1930. And there is QR

HYLGHQFHLQWKHUHFRUGWKDWSODLQ WLIIHYHQVRPXFKDVFODLPVWRKDYHDVNHGGHIHQGDQWWR UHWXUQWRWKH7RQRSDKKRPHDIWHU-XQHWKDWEHLQJWKHGDWHFODLPHGE\GHIHQGDQW

DVWKHODVWRFFDVLRQRQZKLFKSODLQWLIIH[HUFLVHGKLVPDULWDOULJKWV


no evidence in the record that plaintiff even so much as claims to have asked defendant to

return to the Tonopah home after June 8, 1930, that being the date claimed by defendant as

the last occasion on which plaintiff exercised his marital rights. The burden was upon

plaintiff to establish that he made an honest effort to induce his wife to return, failing which

defendant's continued absence is not in law a desertion. Albee v. Albee, 38 Nev. 193, 147 P.

452.

As, by plaintiff's own admissions, he had intercourse with defendant on June 8, 1930, after

she had assertedly told plaintiff on June 3, 1930, that she was through with him, that operated

in law as a condonation. That condonation goes to the charge of desertion as forcefully as to

the charge of cruelty, for there is no evidence in the record that plaintiff ever afterward

requested defendant to return to his home. 9 R. C. L., sec. 175, p. 382; 19 C.J., pp. 86, 87,



127; Thompson v. Thompson, 49 Nev. 375, 247 P. 545, 47 A. L. R. 569; Keezer Mar. & Div.,

vol. 2, pp. 1889, 1893.

The burden of proving all of the material allegations necessary to establish one or the other

of his alleged causes of action rests upon plaintiff, and unless plaintiff's own testimony is

sufficiently conclusive, or corroborated by the testimony of at least one other credible

witness, plaintiff cannot be held to have met that burden, all of the essential elements uponwhich plaintiff relies as ground for divorce having been directly traversed by defendant's

testimony.

The court erred in unduly hastening the proceedings on trial, and in thus denying defendant

an opportunity to adequately present her case without the intervention of extraneous matters

tending to embarrass the orderly presentation of defendant's case.

Lowell Daniels and H. R. Cooke, for Respondent:

A very casual inspection of the record will show a very direct and very substantial conflict

in the testimony on the part of respondent as compared with the WHVWLPRQ\RQWKHSDUWRI DSSHOODQWUHODWLYHWRUHVSRQGHQWVFDXVHR IDFWLRQEDVHGXSRQWKHFKDUJHWKDWDSSHOODQW

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testimony on the part of appellant relative to respondent's cause of action based upon the

charge that appellant willfully deserted and abandoned respondent on or about June 13, 1930.

Moreover, the trial court, after listening to testimony from February 15, 1934, to February 21,

1934, both inclusive, and including a number of night sessions, in referring to the conflicting

evidence, has the following to say:

“The evidence in this case is quite voluminous, and of such a contradictory nature that theevidence introduced on behalf of the plaintiff cannot be reconciled with that given by the

defendant and her witnesses. No good purpose can be served by commenting thereon in

detail, or by attempting to point out wherein the conclusions of the court are sustained by the

evidence, or why the evidence fails to support the affirmative allegations of the pleadings.

The court listened attentively to the witnesses who were before him for six days and three

night sessions, saw and observed their demeanor while upon the witness stand under skillful

examination and cross-examination by the attorneys, has studied his notes taken during the

trial, has read all the many exhibits admitted in evidence, and therefrom has formed a positive

opinion as to which of the parties to this action deserted the other.”

Respondent's testimony refutes in toto appellant's testimony that prior to her departure for

the Hot Creek ranch on May 12, 1930, it was mutually agreed between plaintiff and defendant

that she would resume charge of the ranch and that plaintiff would spend as much time with

her there as his business would permit.

Corroborative evidence is not essential. Respondent's testimony carried conviction to the

mind of the trial court, who saw both parties upon the witness stand, and who had an

opportunity of observing their demeanor, etc., over some six days and two or three night

sessions of actual trial, and, after hearing them testify, concluded that the respondent was



telling the truth respecting the desertion by him of appellant, and that appellant was not

telling the truth on that point.


It would be trite to impose upon the court citations bearing generally on the proposition

that where evidence is conflicting this court will not disturb the findings of the court below if

there be any substantial evidence in support thereof. But solely with the thought that a few

citations, some of which seem to have peculiar application to the case at bar, would not be

amiss and might possibly prove a convenience to the court, we submit the following: Roberts

v. Webster, 25 Nev. 94, 57 P. 180; Schwartz v. Stock, 26 Nev. 128, 65 P. 351; Hough v.

Reserve Gold Mining Co., 55 Nev. 375, 35 P. (2d) 742; Consolazio v. Summerfield, 54 Nev.

176, 10 P. (2d) 629.

OPINION


Appellant, defendant in the court below, has appealed from a judgment of the Fifth judicial

district court, Nye County, granting her husband a decree of divorce upon the ground of

willful desertion for a period of more than one year, and from an order denying a new trial.

The parties intermarried at Tonopah on or about the 3d day of May, 1929, and lived

together there for about one year. On May 13, 1930, defendant went to her separately owned

ranch at Hot Creek, and continued to live there until that property was sold under foreclosure

in the spring of 1932. Plaintiff claims that defendant's going to her ranch and remaining there

were contrary to his wishes, and that he tried on a number of occasions to persuade her to

return to the home in Tonopah. Defendant, on the other hand, says that her going to the ranchwas with the full approval of plaintiff, that he at no time requested her to return to Tonopah,

and that he at no time made it possible for her to return there.

Each of the parties had been married before, and at the time of the marriage in May, 1929,

each had children the issue of their previous respective marriages.


There are no children the issue of their marriage to each other.

Domestic differences and misunderstandings became more serious as time went on, and inDecember, 1932, plaintiff sued for divorce upon the ground of desertion. When it became

apparent that defendant intended to contest the action, plaintiff amended his complaint to

include extreme cruelty as a further ground for divorce. Defendant, in her answer, denied the

allegations of desertion and extreme cruelty, and by way of “counter-claim, cross-complaint

and ground for affirmative relief” charged desertion, neglect to provide, and extreme cruelty.

Her answer and cross-complaint prayed that plaintiff take nothing by his complaint, that she

be awarded separate maintenance in the sum of $150 per month, and that she be awarded her



costs, including counsel fees.

The case was tried in February, 1934, before the court without a jury, Honorable L. O.

Hawkins, judge of the Sixth judicial district, presiding. Thereafter the court rendered its

decision, granting plaintiff a decree of divorce upon the ground of defendant's willful

desertion of plaintiff for more than one year next immediately preceding the commencement

of the suit. In said decision the court held that neither party had proved a case of extremecruelty against the other, and further held that defendant had failed to prove a case either of

desertion or failure to provide.

Defendant's assignments of error are based chiefly upon her contentions (a) that the

evidence was insufficient to justify the court's finding that defendant willfully deserted

plaintiff; (b) that it was error for the court to hold that defendant failed to prove a case against

plaintiff for desertion; and (c) that the court erred in deciding that defendant did not make out

a case against plaintiff for failure to provide the common necessaries of life.

The point most urgently stressed by defendant on this appeal is that plaintiff utterly failed

to prove that her alleged desertion was against his will and without his consent. As stated in

appellant's reply EULHI³5HVSRQGHQWVIDLOXUHWRSURGXFHDQ\HYLGHQFHZKDWHYHUWKDWWKH

DOOHJHGGHVHUWLRQE\DSSHOODQWZDVDJDLQVWKLVZLOODQGZLWKRXWKLVFRQVHQWLVWKHYHU\ JLVWURRWDQGVXEVWDQFHRIRXUDSSHDO´


brief, “Respondent's failure to produce any evidence whatever that the alleged desertion by

appellant was against his will and without his consent is the very gist, root and substance of

our appeal.”

Besides listening attentively to the oral arguments, and thoroughly studying the briefs, we

have carefully read and considered the entire record on appeal, consisting of nearly 800pages. On almost every important issue of fact the testimony given by either party is flatly

denied by the other. Plaintiff testified that he was opposed to his wife's staying at the ranch at

all, and that after she went there on May 13, 1930, he visited her on several occasions, each

time asking her to return to Tonopah. Defendant, on the other hand, testified that the matter of

her going out to stay on the ranch was discussed for several months prior to May, 1930, and it

was finally agreed that she should go out there, that plaintiff would spend the week-ends with

her at the ranch, that she would go into Tonopah whenever possible, and that whenever he

was going on a long trip he would come by the ranch and take her with him. She denies that

plaintiff at any time requested her to go back to Tonopah. She points out, as corroborative of

her testimony, that in none of the letters written her by plaintiff is there any request orsuggestion that she return to Tonopah. On the other hand, while defendant says she was

willing at all times, from the date she claims plaintiff deserted her until she filed her answer

and cross-complaint in March, 1933, to return to Tonopah and live there with plaintiff, there

appears to be no evidence that during that period of time she in anyway informed him that she

was willing to return. Defendant testified that Mrs. Burdick grievously interfered in her

personal, domestic, social, and business affairs—a charge which is denied in toto by both

plaintiff and Mrs. Burdick. According to plaintiff, marital relations ceased on June 8, 1930,



but defendant testified positively that such relations continued on occasions until and

including January 12, 1932. Defendant testified that plaintiff continually complained aboutKHUKDYLQJXVHGWKHJUHDWHUSDUWRIWKHSURFHHGVRIKHUILUVWKXVEDQGVOLIHLQVXUDQFH

SROLFLHVLQSD\LQJSUHH[LVWLQJLQGHEWHGQHVVDFKDUJHZKLFKSODLQWLIIZKROO\GHQLHV


her having used the greater part of the proceeds of her first husband's life insurance policies in

paying preexisting indebtedness, a charge which plaintiff wholly denies. Plaintiff testified that

defendant, first on the honeymoon and frequently thereafter, became angrily demonstrative

because he would not substitute her as beneficiary in a policy which had been taken out by

him previous to the marriage for the purpose of providing for his first wife; also, that

defendant berated him because he would not take out a $50,000 life insurance policy, making

her the beneficiary, notwithstanding she knew that he could not afford to pay premiums on

such a policy. The aforesaid charges are denied in their entirety by defendant. Plaintiff

testified, but defendant denied, that she complained of his children being in their home.

Plaintiff testified that defendant made life miserable for him by her continual and insistent

demands that he do something to prevent her losing the heavily mortgaged ranch; defendant

admits that this business was occasionally the subject of conversation, but denies that she

ever said or did anything disagreeable or unreasonable in connection with it. According to

defendant's testimony, plaintiff admitted to her that he was “crazy” about nineteen or twenty

other women, and further that he was “crazy about all women.” Defendant charged that

plaintiff was in love with one other woman in particular. Plaintiff categorically denied said

alleged admissions, and testified on cross-examination that during the year preceding the trial

he had not been keeping company with any woman in particular, that he had taken any

amount of women in his car, that he might have paid more attention to one woman inparticular than to other ladies, that he had been on some trips with this one particular lady, he

could not say how many, but that he had not been on any trips with her alone. Defendant

testified that on one occasion she informed plaintiff she could not compete with nineteen or

twenty other women, and she further testified at the trial that she would still be willing to

receive plaintiff back if he could free himself IURPHQWDQJOHPHQWZLWKRWKHUZRPHQ


from entanglement with other women. Defendant testified that in the late afternoon or earlyevening of January 12, 1932, after certain conferences at the Mizpah Hotel when she,

plaintiff, and a Mr. Cole were present, plaintiff went to the train to see Mr. Cole off, and then

returned to the hotel, went to defendant's room, and while there had conjugal relations with

her; as to this, plaintiff not only denies such relations, but testifies positively that he was not

alone with defendant in her room at any time on the afternoon or evening of said day. It is

admitted that the water and lights were turned off at the Tonopah home about the end of May,

1930; but while defendant testified that she was at no time informed that they were or were



going to be turned off, plaintiff testified that, when he was at the ranch trying to persuade

defendant to return to the home at Tonopah, he informed her that if she were going to remain

at the ranch he was not going to continue living at the house, and would have the lights and

water turned off, but would have them turned on again whenever she should come to town.

Defendant testified that on one occasion, after she had lent her own automobile to plaintiff's

mother, he asked defendant to execute a bill of sale of the car to his mother, and upon herrefusal commenced choking her and finally began packing his clothes, at the same time

informing her that he was going to leave and go to his sister's home. Defendant, as she states,

then consented to execute the bill of sale, whereupon plaintiff admitted that he had made a

“glorious fool” of himself, and went on to say that Mrs. Burdick was waiting at the office to

mail the bill of sale to his mother, and that he would rather die than go back and tell his sister

that he had failed in his effort to secure the bill of sale. Plaintiff denied that there was any

trouble whatever in connection with said bill of sale, and stated that it was only asked for so

his mother could get a license in California, where the car then was, and that the car was later

restored to defendant in good condition. Plaintiff testified that on June 3, DWWKH 0L]SDK+RWHOLQ7RQRSDKGHIHQGDQWWROGKLPVKHZDVJRLQJWR/RV$QJHOHVDQGDWWKH

VDPHWLPHVDLG³,DPWKURXJKZLWK\RX´


1930, at the Mizpah Hotel in Tonopah, defendant told him she was going to Los Angeles, and

at the same time said, “I am through with you.” Defendant denied that she ever made any

such statement.

Defendant did not live with plaintiff at any time after she left Tonopah on May 13, 1930.

She testified that on one occasion she agreed plaintiff could have an uncontested divorce if

arrangements could be made regarding the mortgage so she would not lose her ranch. Shefurther testified that on another occasion she wrote plaintiff informing him that if he would

come out to the ranch and tell her that he did not love her she would let him get a divorce, but

that when he did come soon afterwards, he declared his love for her and said he did not want

a divorce.

It is perfectly plain that some false testimony was knowingly given by one or both parties.

We have striven earnestly to satisfy ourselves as to the real truth, especially on the more

important issues. In so doing we have not overlooked the testimony of defendant's son and

daughter, which is calculated to throw considerable doubt upon plaintiff's testimony that there

were no marital relations after June 8, 1930. Nor have we lost sight of the facts that none of

plaintiff's letters to defendant requested her to return to Tonopah, that plaintiff himself doesnot claim to have asked her at any time after June, 1930, to return there, that defendant left

most of her good clothes at the residence in Tonopah when she went to the ranch, and some

other facts and circumstances tending to corroborate her testimony. On the other hand, we

have not felt we could overlook the admitted fact that defendant left the home at Tonopah on

May 13, 1930, and has never lived with plaintiff since. Nor did she at any time inform

plaintiff that she was willing to return. Defendant strenuously contends that there was no

evidence whatever that her alleged desertion was against the will or without the consent of



plaintiff. In this she is clearly mistaken, as plaintiff's positive testimony that he never wanted

her WRVWD\DWWKHUDQFKDQGWKDWDIWHUVKHZHQWWKHUHRQ0D\KHPDGHVHYHUDO WULSVDQGWULHGWRSHUVXDGHKHUWRUHWXUQLVFHUWDLQO\VRPHHYLGHQFHWKDWKHUGHSDUWLQJ IURPWKH7RQRSDKKRPHDQGUHPDLQLQJDWWKHUDQFKZHUHDJDLQVWKHZLOODQGZLWKRXWKLV

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to stay at the ranch, and that after she went there on May 13, 1930, he made several trips and

tried to persuade her to return, is certainly some evidence that her departing from the

Tonopah home and remaining at the ranch were against he will and without his consent. The

testimony of Mrs. Wilson tends to corroborate plaintiff's testimony that defendant was

displeased because of the presence of his children in the home. The testimony of Dr. and Mrs.

Burdick tends to corroborate plaintiff in his statement that he was not alone with defendant in

her room at the Mizpah Hotel at any time in the afternoon or evening of January 12, 1932.

With regard to turning off the lights and water in the Tonopah residence, we think it wouldhave shown good judgment if defendant, when she found them turned off, had, instead of

registering at a hotel, asked plaintiff to have them turned on.

Defendant did not charge plaintiff with adultery in her cross-complaint, nor did she, in her

bill of particulars, mention any sorrow or humiliation caused by his alleged association with

other women. It would seem, therefore, that she brought these matters up at the trial for the

purpose of showing that plaintiff's alleged conduct in associating with other women justified

her in remaining away from home in Tonopah, and made it impossible for her to return

there—plaintiff thus being in law the real deserter. If it was true that plaintiff was “crazy”

over at least nineteen or twenty other women, and if he was in love with one other woman in

particular, it would appear that at least some corroborative evidence along those lines fromthird parties could have been presented to the court.

The only corroborating witnesses who could be regarded as being wholly impartial were

Mrs. Lyons, Dr. Donald, and Mrs. Rodgers. The testimony of none of these was such as to be

decisive of any important issue in the case.

1. Mrs. Wilson and her husband worked for plaintiff some ten years. The other witnesses

were related by blood or marriage to one or the other of the parties.


We are not to be understood as saying that any of the parties referred to in this paragraph

were unworthy of belief because of business association or by reason of consanguinity or

affinity to either of the parties. But trial courts have the right to take such matters into

consideration in passing upon the credibility of witnesses and the weight to be given their

testimony.

2, 3. In cases such as this, on issues of fact, much must be left to the wisdom and

experience of the presiding judge, who sees and hears the parties and their witnesses,



scrutinizes their testimony and studies their demeanor. In rendering its decision in this case,

the trial court said it was positive in its opinion that defendant deserted the plaintiff, and also

decided that defendant had not proved a case against plaintiff, either for desertion or for

failure to provide the common necessaries of life. If this court, after careful study and

consideration, were clearly of opinion that the findings of the trial court were not warranted

by the evidence, we would have the power, and it would be our duty, to reverse the case evenif the record contained substantial evidence supporting those findings. But we find ourselves

unable to say that we are clearly satisfied the evidence does not justify the findings.

4, 5. Appellant contends that even if she willfully deserted plaintiff, which she denies, the

desertion was condoned. This contention is based chiefly upon the alleged exercise by

plaintiff of his marital privileges on a number of occasions after the date of the

commencement of her alleged desertion, and extending over a period of time to and including

the 12th day of January, 1932. Condonation is an affirmative defense, and as a general rule

should be specially pleaded. Morris v. Morris, 50 Nev. 298, 258 P. 232; Keezer on Marriage

and Divorce, sec. 500; 9 R. C. L. 386, sec. 179; 19 C. J. 115, sec. 295; C.J. Perm. Ann.,

1927-1931, p. 1276, citing Morris v. Morris, supra. Condonation was not specially pleaded in

the instant case. Not only that, but we have been unable to find any mention of condonationas a defense anywhere in the voluminous record RQDSSHDO


on appeal. Nothing was said concerning it at any time during the entire trial, although

evidence was offered and received which, in this court, appellant now contends established

condonation. The case was submitted for decision in the lower court without argument, oral

or written, so the question of condonation necessarily could not have been urged upon that

court before it rendered its decision. There is nothing to show whether condonation was orwas not argued to the district court on the hearing of the motion for new trial. If that question

was argued at that time, it must necessarily have been determined adversely to defendant's

contention, as the motion for new trial was denied. If the question of condonation was argued

on the hearing of the motion for new trial, we have no way of knowing whether the court, in

deciding adversely to defendant on that question, based its decision on the law, or on the

evidence, or on both law and evidence. In the written decision of the lower court denying the

motion for new trial, no reference whatever is made to the question of condonation. No

reference is made to the matter of condonation in any of appellant's assignments of error. It

thus appears that appellant's contention that her alleged desertion of plaintiff was condoned

was not made in the trial court, and therefore cannot be urged in this court for the first time.Paterson v. Condos, 55 Nev. 260, 30 P. (2d) 283.

6-8. Appellant contends that there was no corroboration of plaintiff's testimony that she

willfully deserted him. By statute in a number of states corroboration is expressly required. In

this state the only statute requiring corroboration in divorce actions is section 9467.02 N. C.

L., which provides that “In all civil cases where the jurisdiction of the court depends upon the

residence of one of the parties to the action, the court shall require corroboration of the

evidence of such residence.” It has been the practice in this state not to require corroboration



of plaintiff's testimony relating to the ground or grounds for divorce, where his or her

testimony convinces the court or jury of its WUXWKIXOQHVV


truthfulness. This rule, generally recognized for so many years by the district courts, we are

not disposed to disapprove. The purpose of statutes requiring corroboration of plaintiff's

testimony relating to the ground or grounds for divorce, is to prevent collusion. There is

certainly no collusion in this case. It may also be observed that plaintiff's testimony that

defendant willfully deserted him is to some extent corroborated, not only the fact that she left

the home in Tonopah and never lived with him again, but by the further circumstance that she

at no time informed him of her willingness to return. Keezer lays down the rule that “As a

general rule a spouse at fault in the original separation who desires to resume marital relations

to prevent the desertion from becoming a statutory ground for divorce, must make a good

faith unconditional offer to return and resume the marital status.” So in 9 Cal. Jur. 678, 679,the author says: “Where the wife has abandoned the husband without justification, it is her

duty to return and conform to his reasonable place and mode of living as the head of the

family. It is not the duty of the husband so abandoned by the wife to solicit her return, and

until her offer to return, no obligation of support rests upon him.”

9-12. Assignment of error VIII is that “The court erred in overruling defendant's objections

to questions propounded by plaintiff, and in denying defendant's motions to strike testimony

adduced by plaintiff.” Assignment IX reads: “The court erred in sustaining plaintiff's

objections to questions propounded by defendant, and in granting plaintiff's motions to strike

testimony adduced by defendant.” Later in appellant's opening brief the pages and lines of the

record on appeal are listed, showing the rulings claimed to be error. None of these rulings

were discussed on the oral argument in this court, and the only argument in appellant's briefsis the following: “In the trial of divorce actions, the court is not governed by strict rules of

evidence, but exercises a broad discretion. (19 C. J. 146.)” Assuming, without deciding, that

appellant is FRUUHFWLQKHUFRQWHQWLRQWKDWWKHVHDOOHJHGHUURUVKDYHEHHQDVVLJQHG SURSHUO\DQGZLWKVXIILFLHQWVSHFLILFLW\FRXQVHOKDVQRWHLWKHULQRUDODUJXPHQWRUEULHIV

VWDWHGUHDVRQVVKRZLQJZK\DQ\RIWKHUXOLQJVFRPSODLQHGRIFRQVWLWXWHGHUURU


correct in her contention that these alleged errors have been assigned properly and withsufficient specificity, counsel has not, either in oral argument or briefs, stated reasons

showing why any of the rulings complained of constituted error. Appellant has quoted a

general rule or proposition of law from Corpus Juris, without showing its applicability to any

of the trial court's allegedly erroneous rulings. While there is no inflexible rule which

prevents this court from considering questions not discussed in the briefs or oral argument

(Radovich v. Western Union Tel. Co., 36 Nev. 341, 135 P. 920, 136 P. 704), we will not

ordinarily concern ourselves with such alleged errors. Robison v. Mathis, 49 Nev. 35, 234 P.



690; 3 C. J. 1428, 1429, 1431; 4 C. J. 1070-1072. We have read all the portions of the record

specified in appellant's brief, relating to said assignments of error VIII and IX. If from this

mere reading of the questions, answers, objections, motions, and rulings we were clearly

convinced that any of the rulings was patently erroneous and prejudicial, we would consider it

proper, and our duty to take the same action as we would had the particular ruling been

argued and discussed in the briefs or oral arguments, or both; but as we are not so convinced,from said reading, that any prejudicial ruling was made, we see no reason, in the instant case,

for departing from the general rule and undertaking an independent investigation, on our own

motion, for the purpose of ascertaining whether the trial court's said rulings on evidence were

correct, and if not, whether any erroneous ruling was prejudicial.

13. Appellant assigns as error that the trial court unduly hastened the proceedings at the

trial, thus denying her an opportunity to adequately present her case without the intervention

of extraneous matters tending to embarrass the orderly presentation of her case. The record

shows that on the last day of the trial the court twice informed respective counsel that the

taking of testimony would have to be closed by 10 o'clock that evening. When defendant

finished the examination of her ODVWZLWQHVVFRXQVHOIRUSODLQWLIIVWDWHG³7KLVVL[PLQXWHV,

KDYHWRVHOHFWEHWZHHQDFURVVH[DPLQDWLRQDQGDUHEXWWDO´


last witness, counsel for plaintiff stated, “This six minutes I have to select between a

cross-examination and a rebuttal.” Thereupon counsel for defendant said, “I have used up

more time on the rebuttal than I intended, but I have made every effort to hurry.” He then

suggested to the court that the time be extended beyond 10 o'clock so that counsel for plaintiff

could finish his examination. Defendant made no objection, nor did she take any exception, to

the action of the court now assigned as error. She made no request for further time. She didnot offer to present any further evidence, nor was the court informed that she had any further

testimony or evidence which she desired to offer. We therefore hold, on this assignment, that

there was no prejudicial error.

14, 15. Prior to the oral argument on this appeal, appellant noticed a motion for an order

permitting the court to file and include as part of the record on appeal certified copies of the

depositions of Frank Wittenberg and Thomas F.Cole taken in behalf of plaintiff and admitted

in evidence at the trial. This motion was made “conformable to Rule VII” of this court, and

was argued and submitted for decision at the time this appeal was orally argued and

submitted. There formerly was in force in this state section 414 of the civil practice act, the

same being section 5356 of the Rev. Laws, under which certain documents might be certifiedup by the clerk of the lower court. We held in Water Co. of Tonopah v. Belmont

Development Co., 50 Nev. 24, 249 P. 565, that that provision had been repealed.

Notwithstanding our holding in that and subsequent cases, the provision alluded to was

carried into the Nevada Compiled Laws of 1929 as section 8903. Under the present holdings

of the court, nothing can be considered, where a judgment on the merits is being reviewed,

except what is in the judgment roll proper and the bill of exceptions as settled by the trial

court. Such was the holding in Brearley v. Arobio, 54 Nev. 382, 383, 12 P. (2d) 339, 19 P.



(2d) 432. Had counsel for appellant made a motion, supported by a proper showing, IRUWKH UHPDQGLQJRIWKHELOORIH[FHSWLRQVIRUDPHQGPHQWWKHUHRIVRDVWRHPEUDFHWKHVH GHSRVLWLRQVLWPD\EHWKDWZHZRXOGKDYHHQWHUHGDQRUGHULQFRPSOLDQFHZLWKWKH

UHTXHVWDVZHGLGLQ%URFNPDQY8OORP1HY


for the remanding of the bill of exceptions for amendment thereof so as to embrace these

depositions, it may be that we would have entered an order in compliance with the request, as

we did in Brockman v. Ullom, 52 Nev. 267, 286 P. 417, and in Taylor v. Taylor, 56 Nev. 100,

45 P. (2d) 603. Not having done so, her motion must be denied.

Appellant has also assigned as error that the court erred in admitting, over her objection,

certain evidence by deposition. The record shows that every objection made by defendant to

specific questions or answers was sustained by the court. As to the objection made to all of

the questions propounded in the deposition, we are not in a position to say whether error was

committed, for the reason that the deposition itself is not in the record.The judgment and order appealed from are affirmed.

____________

ÐÐÐÐ56 Nev. 458, 458 (1936) Lee Tire & Rubber Co. v. McCarranÐÐÐÐ

LEE TIRE & RUBBER CO. OF NEW YORK v.

McCARRAN Et Al.

No. 3125

March 12, 1936. 55 P. (2d) 633.

1. Guaranty.Generally, any material change in obligation of principal to which guaranty relates, by change of

terms of contract between guarantee and principal, or in manner of its execution without guarantor's

consent, releases guarantor; provided such change takes place before guarantor's liability is finally

settled.

2. Guaranty.Rule releasing guarantor where there has been material change in obligation or duty of principal

applies although guarantor has knowledge of change if it is carried out without guarantor's consent.3. Guaranty.

Guarantors of indebtedness on purchase of goods by principal held not discharged from liability for

indebtedness to obligee at time principal and obligee terminated contract for purchase on ground that

termination of contract was a material alteration thereof, releasing guarantors.

4. Guaranty.In action against guarantors of payment of account, plaintiff had burden to prove that no part of

account was paid.




5. Guaranty.In action against guarantors of payment of account, placing burden to prove payment upon guarantors

held reversible error.


Action by the Lee Tire & Rubber Company of New York against P. A. McCarran and

another. From an adverse judgment, the defendants appeal. Reversed.

J.W. Dignan and Gray Mashburn, for Appellants:

Any change in the obligation or the duty of the principal debtor before the liability of the

guarantors is finally settled will release them. It must be conceded, under the evidence in the

case at bar, that Fyhen's obligations and duties were changed by the consignment agreement.

The manner or the method of the making of the change would be immaterial. The legal effect

must be the same whether the change is effected by an amendment to the original contract, an

addition thereto, an alteration thereof, or the making of an entirely new contract between the

debtor and the creditor at any time before the liability of the guarantor is finally settled, if the

same is made without notice to, knowledge of, or the consent of the guarantor. There was

never even an attempt made to finally, or otherwise, settle the liability of the guarantors in the

case at bar, before the change was made. Under the law it is the changing of the obligations

and duties of the principal debtor, without notice, knowledge or consent, and not the mere

change in the form of the principal contract, which releases the guarantors. Marshall-Wells

Co. v. Tenny (Ore.), 244 P. 84; 12 R. C. L., pp. 1081, 1083; 28 C. J., pp. 951, 952, 994; 32

Cyc. 177; 50 C. J. 116, 117, 118; Magee v. Manhattan L. Ins. Co. (U. S.), 23 L. Ed. 699;Smith v. U. S., 17 L. Ed. 788; Miller v. Stewart (U. S.), 6 L. Ed. 189; Warren v. Yores, 9 L.

R. A. 353; Reese v. U. S., 19 L. Ed. 542; Mann v. Union J. & E. Co., 267 Fed. 448; Jones v.

Barry, 158 Fed. 208; Truckee Lodge v. Wood, 1HY


14 Nev. 310; Carson Opera House v. Miller, 16 Nev. 327-337.

The defendants never guaranteed the payment of any sum or sums not yet due and payable.

The exact terms of the contract of guaranty provides for payment “when due.” The burdenwas not only upon the plaintiff to prove the amount of indebtedness, but the burden was on

the plaintiff to prove the Fyhen had failed to make payment when due, and that the said Fyhen

was indebted to the plaintiff at the time of the commencement of this action, under an original

contract for which these defendants guaranteed the payment.

We respectfully submit that the findings of fact and the evidence do not support the

judgment of the court, and that the judgment is contrary to the law, for the reason that the

evidence and the findings conclusively show that the defendants were discharged from all



liability, by operation of law.

G. Gunzendorfer, for Respondent:

Nowhere in the record is there any testimony that even tends to show that there was in the

legal sense an abrogation or cancelation of the original contract. But there was a termination

or ending of the same. The mere termination of the original contract simply put a period todealings under that agreement, and fixed the liability of the guarantors as of the date of the

termination of the original contract. No contention could be made that the guarantors agreed

or ever were intended to be bound to guarantee payment to plaintiff under the second

agreement. Therefore, it cannot be successfully urged that there was a change in the original

contract under which defendants were bound, and that by reason thereof the defendants were

relieved from all liability for goods sold prior to June 17, 1930.

The burden of proving payment of moneys and the application thereof was upon the

defendants. They did not offer any proof at all, and relied entirely upon the testimony and

documentary evidence of plaintiff in support of their technical defense. There was no

testimony RIDQ\NLQGDWDQ\WLPHRQEHKDOIRIGHIHQGDQWVLQGLFDWLQJDUHTXHVWRUGHPDQG

IRUWKHDSSOLFDWLRQRIPRQH\VLQDQ\SDUWLFXODUZD\RUXSRQDQ\SDUWLFXODUDFFRXQW


of any kind at any time on behalf of defendants indicating a request or demand for the

application of moneys in any particular way or upon any particular account.

Respondent challenges the appellants to point out at any place in the transcript of

testimony or in the record on this appeal, any evidence that in any manner whatever, even

remotely, tends to controvert or overcome in the least degree the finding of the court that

$1,160.05 was due plaintiff by defendants under their guaranty.

OPINION


This is an appeal from a judgment against defendants and an order denying a motion for

new trial.

The amended complaint alleges that plaintiff is a foreign corporation; that on February 24,

1930, the defendants guaranteed the payment by one Fyhen of certain goods, wares, and

merchandise which might be sold and delivered to him by plaintiff; that plaintiff on the faith

of said guaranty sold and delivered to said Fyhen merchandise of the value of $1,153.17; thatplaintiff had demanded payment thereof of said Fyhen, and also of defendants, but that they

had failed, neglected, and refused to pay the same; and that Fyhen is insolvent. There are

other allegations, not necessary here to state.

To said complaint an answer was filed, wherein it is denied that the guaranty as alleged

was executed; that the defendants, or either of them, had given a guaranty to the plaintiff that

“has not been revoked * * * and deny that the guaranty therein referred to is now in full force

and/or in effect.” The answer denies all the other allegations of the complaint.



For a separate and further answer and affirmative defense, it is averred that at the time of

the commencement of the action, and ever since, the plaintiff was a foreign corporation,

existing pursuant to the laws of 1HZ<RUNWKDWSODLQWLIIGLGQRWSULRUWRWKHILOLQJRILWV FRPSODLQWRUDWDOOILOHZLWKWKHVHFUHWDU\RIVWDWHRIWKH6WDWHRI1HYDGDDFRS\RILWV FKDUWHURUFHUWLILFDWHRILQFRUSRUDWLRQDQGWKDWSODLQWLIIKDGQROLFHQVHWRWUDQVDFW

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New York; that plaintiff did not prior to the filing of its complaint, or at all, file with the

secretary of state of the State of Nevada a copy of its charter or certificate of incorporation;

and that plaintiff had no license to transact business in this state or to maintain this action.

For a further, separate, and affirmative defense, the defendants allege that on or about

February 24, 1930, the plaintiff entered into a contract to sell and deliver goods to Fyhen

upon certain conditions, and thereupon the defendants signed a written guaranty guaranteeing

the payment and the performance of the obligations entered into between plaintiff and Fyhen;that thereafter and on or about the 25th day of April, 1930, the plaintiff and Fyhen materially

altered, changed, and amended the said contract so entered into, so as to provide for the

consignment of goods, wares, and merchandise by plaintiff to Fyhen, to be sold on

commission; and that said change was made without the knowledge or consent of the

defendants or either of them, whereby they were released from any obligation thereunder.

Plaintiff filed a reply denying the new matter contained in said answer.

At the conclusion of the trial the court took the case under advisement, and thereafter

rendered an oral opinion and ordered findings and judgment in favor of the plaintiff.

According to the formal findings of facts, the plaintiff is a New York corporation; the

defendants, on February 24, 1930, entered into a written guaranty whereby they guaranteedthe payment, when due, of any and all present or future indebtedness incurred by Fyhen, on

account of goods, wares, and merchandise sold Fyhen, not to exceed $3,000, until written

notice of withdrawal of said guaranty is given; that the plaintiff, upon the faith of said

guaranty, at the city of San Francisco, Calif., between February 24, 1930, and June 17, 1930,

sold and delivered upon credit to Fyhen goods, wares, and merchandise of the value of

$1,153.17; that on June 17, 1930, plaintiff and Fyhen entered into and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made a new agreement, pursuant to which plaintiff was thereafter to furnish goods to the said

Fyhen, on consignment; that on said 17th day of June, 1930, said Fyhen returned to plaintiff,

and plaintiff took back, the unsold goods, wares, and merchandise previously sold to and thenin the hands of said Fyhen, and thereupon gave said Fyhen credit for the goods so returned

and taken back; that on the 17th day of June, 1930, after the return of the goods, wares, and

merchandise mentioned, the said Fyhen was indebted and owed to plaintiff for goods, wares,

and merchandise theretofore sold and delivered upon credit to said Fyhen the sum of

$2,069.62; and that on the date this action was commenced Fyhen owed to plaintiff for goods,

wares and merchandise sold on credit and delivered to him under said agreement of guaranty,

prior to June 17, 1930, a balance of $1,160.80, which is still due, owing, and unpaid to

plaintiff; that by reason of said sale and guaranty the defendants became indebted to the

plaintiffs on June 17, 1930, and are now indebted to plaintiff in the sum of $1,160.80.

The court found all of the other issues in favor of the plaintiff, and ordered judgment in itsfavor in the sum of $1,153.17, the amount demanded in the complaint, with interest.

As we understand the points made by appellants, they are that the principal contract was so

changed as to discharge them; and, second, that if such is not the case, the judgment is

contrary to the evidence. Counsel says in his brief that the only question of law involved is as

to whether or not the appellants have been discharged by reason of a material alteration of the

principal contract.

1, 2. It is urgently contended that the plaintiff cannot recover for the reason that there was

a material alteration in the principal contract. As a basis for the contention, counsel for

appellants quote as follows: “In accordance with the rule that a guarantor cannot be held

liable beyond the strict terms of his contract, as a general rule, any material change in WKH REOLJDW LRQRUGXW\RIWKHSULQFLSDOWRZKLFKWKHJXDUDQW\UHODWHVE\DFKDQJHRU DOWHUDWLRQHLWKHULQWKHWHUPVRIWKHFRQWUDFWEHWZHHQWKHJXDUDQWHHDQGWKHSULQFLSDORU LQWKHPDQQHURILWVH[HFXWLRQZLWKRXWWKHFRQVHQWRIWKHJXDUDQWRUZLOOUHOHDVHKLP IUR POLDELOLW\WKHUHRQSURYLGHGVXFKFKDQJHWDNHVSODFHEHIRUHWKHJXDUDQWRUVOLDELOLW\LV

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the obligation or duty of the principal, to which the guaranty relates, by a change or alteration

either in the terms of the contract between the guarantee and the principal or in the manner of its execution, without the consent of the guarantor, will release him from liability thereon,

provided such change takes place before the guarantor's liability is finally settled; and in some

jurisdictions this rule is in effect prescribed by statute. The general rule applies, although the

guarantor had knowledge of the change, if it is carried out without his consent.” 28 C. J., p.

994.

Many other authorities are cited to sustain this general rule, among them 12 R. C. L. 1083.

Other authorities are quoted from, stating the extent of the liability of a surety. There are



distinctions between the liability of a guarantor and a surety, but we need not consider them

here.

Accepting the general rule above stated as to the liability of a guarantor, let us determine

the extent of the liability of the guarantors in the instant matter.

3. Was there a material change in the principal contract in question? Clearly not. In fact,

there was no change whatsoever. There was merely a termination of the agreement betweenplaintiff and Fyhen, whereupon the liability of the guarantors terminated, except as to liability

which had theretofore accrued.

There is nothing in the agreement between the parties indicating that the contract might

not be terminated in the manner in which it was. By the termination of the contract of sale,

the liability of guarantors ceased, so far as subsequent transactions between plaintiff and

Fyhen are concerned. Certainly defendants cannot complain of this. No case is cited by either

counsel to the effect that a termination of the principal contract is equivalent in legal effect to

a material change in the terms of such contract, and we have been unable to find one after

diligent search, for the reason, no doubt, that none exists, since guarantors are, as a rule,

highly pleased to have their liability for future transactions WHUPLQDWHGDQGGRQRWIHHOWKDW

WKH\DUHRUFDQEHLQMXUHGWKHUHE\


terminated, and do not feel that they are, or can be, injured thereby.

The court found that on the 17th of June, 1930, the balance due the plaintiff was in excess

of $5,000; that on the 17th day of June the plaintiff and Fyhen entered into an agreement by

which the plaintiff accepted or took back from Fyhen $4,275.12 worth of merchandise, and

entered into the commission agreement, and that thereafter all the dealings between plaintiff

and Fyhen were on a commission basis; that on the 25th of June the plaintiff gave Fyhencredit (on its books, we assume) “for $4,275.12 worth of merchandise and $668.58 worth of

merchandise, making something over $4,900.00 worth of merchandise, and that after so

crediting Mr. Fyhen there was due $1,009.62 from Fyhen to plaintiff. The cash received after

that period was contained in four items. On July 1st there was a payment of cash credited to

Mr. Fyhen in the sum of $580.00 and on the 9th another credit of $49.38, and on the 25th of

July $222.00, and on the 25th of August $375.00, and on the 31st of October, $107.25, but as

to whether that was a payment on the old indebtedness for which the defendants were

guarantors, or whether it is for the tires sold by Mr. Fyhen as consignee under the

consignment agreement, there is entirely no testimony whatever.”

In another place in the opinion of the court it is said: “It may be that Mr. Fyhen paid to theLee Tire & Rubber Company more than was coming to the Lee Tire & Rubber Company as

the owners of the tires under the consignment agreement, but how can the court say whether

he did or not? After the entire business was wound up, according to the evidence that is

before the court furnished by the plaintiff when the burden of proving those facts rested upon

the defendants, there was $1,165.05 due on the tire account, because there has been no

absolute segregation in the books of the plaintiff between the liability growing out of the sale,

and the liability, if any, growing out of the consignment agreement.”




As to the point that the judgment is excessive, counsel for appellants quote copiously from

the opinion of the learned trial judge, which is embraced in the bill of exceptions, to showthat the trial judge resorted to the wrong method in arriving at the amount paid by Fyhen, and

erroneously assumed in doing so that the burden of proving payment was upon the

defendants. Counsel quote from the opinion of the trial court as follows: “The books are the

only evidence as to payments, and as I said before the burden of showing payments rests upon

the defendants, not upon the plaintiff, and the only evidence of payment after the 17th day of

June, when the liability was $2009.62, was shown by the plaintiff, and they have reduced that

liability to $1,160.05.”

4, 5. It thus appears that the trial court assumed that the burden of proving payment was on

the defendants (guarantors). The well-established rule is to the contrary. 28 C. J., pp. 1024,

1025; Armour & Co. v. Bluthenthal & Bickart, 9 Ga. App. 707, 72 S. E. 168; Craig v. Phipps,23 Miss. 240; Goodman v. Parish, 2 McCord (13 S. C. Law) 259.

If Fyhen was entitled to be credited with the payments made after July 1, 1930, or any of

them, the amount of the judgment would necessarily be reduced by a considerable amount.

By placing the burden of proof upon the defendants, the court committed reversible error.

Long Valley L. & D. Co. v. Hunt, 51 Nev. 5, 266 P. 917.

We do not think there is any merit in the other points made by appellant.

The trial court having erroneously assumed that the burden of proof is upon the

defendants, the judgment must be reversed.

It is so ordered.

(Petition for rehearing pending.)

____________

ÐÐÐÐ56 Nev. 467, 467 (1936) Prouse v. ProuseÐÐÐÐ

PROUSE v. PROUSE

No. 3134

April 3, 1936. 56 P. (2d) 147.

1. Divorce.Six weeks' residence anywhere in state by plaintiff gives district court of any county jurisdiction to

entertain divorce action (Stats. 1931, c. 97).

2. Statutes.Court construing statute whose meaning is doubtful must adopt construction least likely to produce

mischief.



3. Constitutional Law.Courts have no concern with wisdom or policy of legislative action.


Action for divorce by George E. Prouse against A. Grace Prouse. From a decree for

plaintiff, defendant appeals. Affirmed.

William S. Boyle, for Appellant:

Section 5838 of the Revised Laws of Nevada 1912 is almost the same as sec. 9460 N. C.

L. They both read: “or in which the plaintiff shall reside.” The word “any” in the first part of

the statute stands out likewise. The word “any,” according to the Century Dictionary, p. 253,

vol. 1, is an adjective and pronoun. In this instance it is an adjective. The dictionary states:

“derivative of one or rather of its weakened form ‘an,' ‘a' in an indeterminate unitary or, in

plural, partitive use.” Words and Phrases, vol. 1 (1st), p. 420, declares that a statute providing

that an action may be brought “in any court of the United States” means any court of the

United States within the territorial jurisdiction of which a defendant may be an inhabitant. U.S. v. Crawford, 47 Fed. 561. We can construe “inhabitant” as meaning one “domiciled.”

Appellant relies particularly upon the following authorities: Fleming v. Fleming, 36 Nev.

135, 134 P. 445; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810; Barber v. Barber, 47 Nev.

377, 385, 222 P. 284; 9 R. C. L., p. 417, sec. 217.


In this instance the residence is alleged to be in Washoe County all of the time for which it

is claimed. The complaint is filed in Ormsby County, when it should have been filed inWashoe County, the domicile of the plaintiff. Therefore the court of Ormsby County has no

jurisdiction and the judgment appealed from should be reversed.

Samuel R. Tippett, L. D. Summerfield, and Harlan L. Heward, for Respondent:

By the amendment to the statute in 1931 (Stats. 1931, p. 161), it seems too plain for

argument that the legislature ex industria changed the statute to provide that upon a six weeks'

residence in the state a plaintiff may file an action for divorce in any county in the state. It is

difficult to see how it could have more clearly expressed this intention. Instead of confining

the residence to one county, it is provided that a person may establish it for varying periods in

the different counties, establishing a state rather than a county residence. Consequently, the

residence being a state residence, the plaintiff is expressly authorized to file his action in any

county in the state.

There is nothing in the constitution of the State of Nevada, or any rule of public policy that

we know of, which would render invalid such a construction of the 1931 statute.

It has been repeatedly held in Nevada that divorce is a creature of statute and governed and

controlled in substance and procedure by the legislative enactments relating thereto.

Worthington v. District Court, 37 Nev. 214, 142 P. 230; Ann. Cas. 1916e, 1097; L. R. A.



1916a, 696; Effinger v. Effinger, 48 Nev. 209, 239 P. 801.

The general rule on jurisdiction is not predicated on a county residence, but, to the

contrary, upon a state residence. 19 C. J. 27; 9 R. C. L. 400.

So, too, the general rule is that venue in divorce actions is subject to the statutory

provisions on the subject. 19 C. J. 34.

We suggest that the construction followed by the GLVWULFWFRXUWLQWKLVFDVHLVWKHVDPH FRQVWUXFWLRQZKLFKVDLGFRXUWDQGRWKHUGLVWULFWFRXUWVKDYHSODFHGXSR QWKHVWDWXWHLQ TXHVWLRQIRUDWOHDVWIRXUDQGDKDOI\HDUVDQGWKDWDFRQWUDU\FRQVWUXFWLRQZRXOGHQWDLO

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district court in this case is the same construction which said court and other district courts

have placed upon the statute in question for at least four and a half years, and that a contrary

construction would entail the grave consequences pointed out in the case of Davis v. Davis,

54 Nev. 267, 13 P. (2d) 1109.

OPINION


Plaintiff brought this action for divorce in the First judicial district court of the state in and

for the county of Ormsby. He alleged in his complaint: “That the plaintiff is now and for a

period of more than six weeks preceding the commencement of this action has been a bona

fide resident of the County of Washoe, State of Nevada, and has been for said period of time

actually, physically and corporeally present in said county and state.”

On this account a special demurrer was interposed, challenging the jurisdiction of thecourt. The demurrer was overruled. Defendant failed to answer within the time given by the

court. Her default was entered and a decree of divorce granted to plaintiff.

1. It is contended that the trial court had no jurisdiction of the action because, as the

complaint shows, plaintiff was not a resident of said Ormsby County, but, on the contrary,

was a resident of said Washoe County, in the Second judicial district, when the action was

instituted.

The pertinent part of the statute involved reads: “Divorce from the bonds of matrimony

may be obtained by complaint, under oath, to the district court of any county in which the

cause therefor shall have accrued, or in which the defendant shall reside or be found, or in

which the plaintiff shall reside, or in which the parties last cohabited, or if plaintiff shall have

resided six weeks in the state before suit be brought. * * * Unless WKHFDXVHRIDFWLRQVKDOO KDYHDFFUXHGZLWKLQWKHFRXQW\ZKLOHSODLQWLIIDQGGHIHQGDQWZHUHDFWXDOO\GRPLFLOHG WKHUHLQQRFRXUWVKDOOKDYHMXULVGLFWLRQWRJUDQWDGLYRUFHXQOHVVHLWKHUWKHSODLQWLIIRU GHIHQGDQWVKDOOKDYHEHHQUHVLGHQWRIWKHVWDWHIRUDSHULRGRIQRWOHVVWKDQVL[ZHHNV

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the cause of action shall have accrued within the county while plaintiff and defendant were

actually domiciled therein, no court shall have jurisdiction to grant a divorce unless either the

plaintiff or defendant shall have been resident of the state for a period of not less than six

weeks preceding the commencement of the action.” States. 1931, c. 97, p. 161.

The foregoing statute amended the law found in section 9460 N. C. L., which then read:

“Divorce from the bonds of matrimony may be obtained, by complaint, under oath, to the

district court of the county in which the cause therefor shall have accrued, or in which the

defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either

the county in which the parties last cohabited, or in which the plaintiff shall have resided

three months before suit be brought.”

The amendment reduced the required time of residence of a plaintiff from three months to

six weeks, and its language manifests a like liberal intention as to plaintiff's place of

residence. It clearly means that a residence of six weeks in the state by a plaintiff will give the

district court of any county jurisdiction to entertain an action by such plaintiff for divorce.

Omitting intervening language, the statute reads: “Divorce from the bonds of matrimony maybe obtained by complaint, under oath, to the district court of any county * * * if plaintiff shall

have resided six weeks in the state before suit be brought.”

This language is capable only of the meaning we have ascribed to it. The legislature is

presumed to mean what it has thus plainly expressed.

In the statute, as is seen, appears the clause, “or in which the plaintiff shall reside”; and

from this appellant argues that residence in the county at the time a person files a complaint

for divorce is required, together with a state residence of six weeks to give the district court of

such county jurisdiction. The contention has some force, but not sufficient, we think, to

overcome the other clear and explicit language of the statute which VKRZVWKDWDGHSDUWXUH

IURPDFRXQW\UHVLGHQFHWRDVWDWHUHVLGHQFHKDVEHHQDFFRPSOLVKHG


shows that a departure from a county residence to a state residence has been accomplished.

The substitution in the amendment of the word “any” for the word “the” effecting a change

from “the district court of the county” to “the district court of any county,” is highly

significant.

Since territorial days to 1931 the former wording has been in the divorce statute. The first

statute enacted in 1861 (chapter 33) in this respect read: “Sec. 22. Divorce from the bonds of

matrimony, may be obtained by complaint, under oath, to the probate court,” etc.

Subsequently a change was made from probate court to district court.

Numerous amendments have been made during the passage of years, but as to the above

language, no other change was made until, as previously stated, in 1931, when the word

“any” was substituted for the word “the.” The reason is obvious. If the word “the” had been

retained the phrase “the district court of the county” in connection with the last residence

clause, “if plaintiff shall have resided six weeks in the state” would have made an ambiguity



as to what county was meant. The substitution of the word “any” makes it clear that any count

was meant. This is in keeping with the steady liberal tendency of the legislature in this regard.

Appellant does not contend that it is beyond the power of the legislature to make state

residence the basis of jurisdiction in any district court in an action for divorce.

We would be loathe to hold that appellant's contention is controlling because of the train

of consequences mentioned in Davis v. Davis, 54 Nev. 267-273, 13 P. (2d) 1109, whichmight follow.

2. The statute is not doubtful, but if it were it would be our duty to adopt that construction

which would be the least likely to produce mischief. Smith v. Southern Pacific Co., 50 Nev.

377, 381, 262 P. 935.

3. Counsel for appellant deplores a situation which, he asserts will enable a plaintiff to

select a judge to his liking, and a county in which the filing fee is low. This DUJXPHQWJRHV WRWKHZLVGRPRUSROLF \RIOHJLVODWLYHDFWLRQZLWKZKLFKZHKDYHQRFRQFHUQ


argument goes to the wisdom or policy of legislative action, with which we have no concern.

Moreover, practically the same situation which counsel deprecates could follow if his

contention of a county residence were allowed. This because no particular length of time for a

plaintiff's residence in a county having been specified, any period of a bona fide residence,

however short, would satisfy the statute.

The decree should be affirmed.

It is so ordered.

____________

ÐÐÐÐ56 Nev. 472, 472 (1936) Cox v. Los Angeles & Salt Lake Railroad CompanyÐÐÐÐ

COX v. LOS ANGELES & SALT LAKE RAILROAD

COMPANY Et Al.

No. 3126

April 4, 1936. 56 P. (2d) 149.

1. Railroads.Railroad held negligent in permitting freight cars to remain for unreasonable length of time on two of

four tracks crossed by highway, within 10 or 15 feet of highway, without taking extra precautions to

safeguard persons who might use crossing.

2. Railroads.Truck driver, whose truck was struck by train at crossing, held contributorily negligent in not stopping

truck and listening, and in failing to look in direction from which train came while traversing final 34 feet

before reaching track, where his view in that direction was obscured prior to that time.



3. Railroads.

Enginemen have duty to keep vigilant lookout while approaching town railroad crossings.

4. Negligence.Negligence of plaintiff which is so remote that he would still have suffered injuries without it will not

bar recovery.

“Contributory negligence” is such an act, or omission of precaution, on part of plaintiff,

amounting in circumstances to such want of ordinary care as, taken in connection with negligentact, or omission of precaution, on part of defendant, proximately contributes to injury complained

of.

5. Negligence.Plaintiff's negligence need not have been sole proximate cause of injury to bar his recovery.


6. Railroads.

Negligence of truck driver, whose truck was struck by train at grade crossing, in not stopping truck and listening and in not looking in direction from which train came immediately before reaching track,

held a proximate cause of his injuries, so as to bar his recovery against railroad.

7. Negligence.Negligence of railroad in allowing freight cars to remain on two of four tracks crossed by highway

without taking extra precautions to safeguard persons using crossing held not so willful or wanton as to

preclude railroad from setting up contributory negligence of truck driver as defense to his action for

injuries received when his truck was struck by train at such crossing.


Action by Elson H. Cox against the Los Angeles & Salt Lake Railroad Company and

another. Judgment for plaintiff, and defendants appeal. Reversed.

Leo A. McNamee, Frank McNamee, Jr., Brown & Belford, and Malcolm Davis, for

Appellants:

The evidence is insufficient to justify the decision that defendants' were negligent. Such

decision is against law. The cases uniformly support the rule to the effect that the leaving of

cars by a railroad company on its tracks in such a position as to obstruct the view of a traveler

at a crossing is not negligence per se. Headnote to 47 A. L. R. 287. Nor does such leaving of

cars constitute negligence even though the same be left there unnecessarily and for an

unreasonable length of time. Adams v. Missouri, K. & T. R. Co. (Kans.), 241 P. 1086;

Missouri, K. & T. R. Co. v. Perino (Okla.), 247 P. 41.Moreover, there is no evidence to support the finding that the cars were so left upon the

tracks unnecessarily or for an unreasonable length of time. From all that appears from the

evidence it may have been necessary to have spotted and kept the cars where they were at the

time in question so that they could be loaded or unloaded, or for other reasons. The burden of

proving this unnecessity and unreasonableness was upon the plaintiff. All other circumstances

being the same, the DFFLGHQWZRXOGKDYHKDSSHQHGZKHWKHUWKHFDUVZHUHOHIWWKHUH QHFHVVDULO\RUXQQHFHVVDULO\RUZKHWKHUWKH\KDGEHHQOHIWWKHUHIRUDUHDVRQDEOHRUDQ



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accident would have happened whether the cars were left there necessarily or unnecessarily orwhether they had been left there for a reasonable or an unreasonable length of time. The cars

upon the sidetracks were merely a condition, not the proximate cause, of plaintiff's injury.

And there is nothing in the evidence to show what extra precautions the defendants could or

should have taken to have avoided the accident.

Plaintiff's negligence was the sole proximate cause of his injury, or, if there was any

negligence on the part of defendants, then the contributory negligence of plaintiff bars his

recovery. Under the circumstances found by the court to have existed in this case, it was

plaintiff's duty to stop so that he could listen before venturing across any of the tracks,

inasmuch as his vision was obscured and his truck was making such a noise that he evidently

could not hear the approaching train; it was also his duty to look in both directions frompoints from which an effective observation could be had; and on account of his obstructed

view it was his duty to increase his vigilence, and to decrease instead of increasing his speed

as he started across the tracks, so as to be able to stop, if necessary, when his view became

unobstructed. Young v. Pacific electric Railway Co. (Cal.), 283 P. 61; Griffin v. San Pedro,

L. A. & S. L. R. R. Co., 151 P. 282, L. R. A. 1916a, 842; Eddelmon v. S. P. R. R. Co. (Cal.

App.), 182 P. 811.

We submit that the conduct of the plaintiff in crossing the tracks without looking in both

directions, from a point where he could get an effective view—driving onto the first and

second tracks without even looking to the north—a distance of ten and one-half feet—then

looking to north continuously for a distance of more than thirty-four feet—more than four and

one-half seconds, when only a glance assured him that there was no danger from thatdirection—never looking to the south at all until the train was upon him, when a glance in

that direction would have disclosed the approaching train, was not the conduct of an ordinary

prudent man who has any regard for his own safety or the safety RIDWUDLQWKDWPLJKWEH ZUHFNHGE\UXQQLQJLQWRDKXJHWUXFNILOOHGZLWKJUDYHO


of a train that might be wrecked by running into a huge truck filled with gravel. Wehe v.

Atchison, T. & S. F. R. Co. (Kans.), 156 P. 742.

Chas. Lee Horsey, for Respondent:

The evidence is sufficient to justify the decision that defendants were negligent, and such

decision is not against law. At the trial the plaintiff proved that: (1) the defendants left the

freight cars upon tracks No. 1 and No. 2 unnecessarily and for an unreasonable length of

time; (2) the defendants failed to take any extra precautions to warn travelers of the

approaching train; (3) the defendants' train, which collided with the truck driven by the



plaintiff, was traveling at excessive speed.

The pernicious effect of permitting a railroad company to leave cars near a highway

unnecessarily is made clear by the facts in the case at bar. The plaintiff was deprived, almost

entirely, by the presence of the cars on tracks No. 1 and No. 2, the opportunity to see a train

coming from the south toward the crossing. He listened intently and carefully, but if warning

signals were given, he failed to hear them. The trainmen admit that no extra precautions weretaken—that no more warnings were given than usual, and that the speed of the train was as

usual. If, however, the cars had not been left there unnecessarily, the plaintiff, in the time

which he would have had in which to see the train, would undoubtedly have been able to have

observed the same and stopped the truck in time to have avoided the accident. Chicago, B. &

Q. R. Co. v. Roberts (Neb.), 91 N. W. 707; Galveston H. & S. A. Ry. Co. v. Michalke, 38 S.

W. 31; Reed v. Chicago, St. P. & O. Ry. Co., 37 N. W. 149.

The authorities are uniform in holding that when the view of a railroad crossing is

obstructed by the fault of the railroad company it is incumbent upon the company to take

extra precautions for the safety of travelers compelled to use the crossing. Pennsylvania R.

Co. v. Moffitt, 1 Fed. (2d) 276; 12 L. R. A. (n. s.) 1067 at p.


1069 (note); Ham v. Maine Cent. R. Co., 116 Atl. 261; 22 R. C. L. 990.

It would have been an easy matter for the engineer of the train to have blown the whistle

almost continuously for a distance of about half a mile. Only slight extra exertion on the part

of the engineer, for about seventy-five seconds more than he actually consumed in performing

the task, would have been necessary, and there would then have been about eighteen blasts of

the whistle, instead of nine blasts, thereby doubling the amount of warning that was given.

Plaintiff was not negligent. Bearing in mind the frequency with which, before reaching therailroad tracks, the plaintiff had looked and listened for an approaching train, and that, when

about twenty feet east of the tracks, he brought his truck to an almost complete stop, and, as

far as the physical conditions would permit, looked and listened carefully, the plaintiff had

fully complied with the requirements of the “Stop, Look and Listen Law,” even of those few

states which require stopping, as well as looking and listening, before reaching the first of the

tracks. In order to satisfy the requirements of such a law, it is not necessary that the vehicle be

brought to a complete stop. Aymond v. Western Union Telegraph Co. (La.), 91 So. 671. Even

in Pennsylvania, where the requirement of stopping is more rigidly adhered to than in any

other state, the driver of a vehicle is not required to stop, after having done so before reaching

the first track and while proceeding across the tracks, unless the circumstances are such thatone exercising the care of an ordinarily careful, prudent person would do so. Wingert v.

Philadelphia & Reading Ry. Co., 104 Atl. 859; Benner v. Philadelphia & R. Ry. Co. 105 Atl.

283.

Viewing the situation as an ordinarily prudent person, without time or opportunity to

figure the exact distances, it reasonably and correctly appeared to the plaintiff that there was

no reasonable opportunity to stop after he commenced to cross the tracks. One is not required

to stop in a position dangerous in itself. Chesapeake & O.




Ry. Co. v. Steele, 84 Fed. 93; note 37, L. R. A. (n. s.) 138.

After commencing to cross the second track, the plaintiff very rightfully looked toward thenorth, as he was prevented from looking to the south by the fault of the railroad company. His

duty to look in both directions was qualified by the attendant circumstances. He could not

look in both directions at one and the same time. Chisholm v. Seaboard Air Line Ry. (S. C.),

114 S. E. 500; Kenney v. Hannibal & St. J. R. Co., 15 S. W. 983; Goff v. Atlantic Coast Line

R. Co., 102 S. E. 320.

OPINION


Plaintiff was injured when a loaded truck driven by him was struck by one of defendantcompany's freight trains on a crossing at Moapa, Clark County, on the 22d day of February,

1933. Claiming that his injuries were the result of defendants' negligence, plaintiff brought

this action in the Eighth judicial district court, praying judgment, (a) for $25,200 as actual

damages for loss of earning power due to permanent partial disability, (b) for $15,000 as

actual damages for physical pain and distress and mental anguish, and (c) for $10,000 as

punitive damages. Defendants denied that they were guilty of any negligence, and defended

further upon the alleged ground that plaintiff's own negligence was the proximate cause of his

injuries, or that if there were any negligence on the part of defendants, any recovery by

plaintiff was barred by reason of his contributory negligence. After a trial by the court, sitting

without a jury, judgment was rendered in favor of plaintiff, awarding him $5,880 as actual

damages for loss of earning power. Defendants have appealed from said judgment, and froman order denying a new trial.

Moapa is a town on the main line of defendant company's railroad between Las Vegas,

Clark County, Nevada, and Caliente, Lincoln County, Nevada. It is QRWDODUJHWRZQ FRQVLVWLQJWRMXGJHIURPWKHSKRWRJUDSKVLQHYLGHQFHRIVRPHWZHQW\ILYHRUWKLUW\

EXLOGLQJV


not a large town, consisting, to judge from the photographs in evidence, of some twenty-fiveor thirty buildings. The direction of the railroad is such that for convenience we will say it

runs north and south through Moapa. The passenger depot is on the west side of the tracks,

and state highway No. 7A grade crossing, where the accident happened, is slightly more than

50 feet from the north end of the depot platform. Said highway crosses the railroad tracks at

right angles, east and west. To the east of the depot are four railroad tracks. Commencing at

the east, we shall designate these tracks, in accordance with the numbers used at the trial and

in the briefs and arguments in this court, as 1, 2, 3, and 4. Tracks 1 and 2 are house tracks,



track 3 a passing track, and track 4 the main line. The accident occurred on track 4, nearest

the depot. Each one of these tracks is 4 feet 8 1/2 inches wide. From the west rail of track 1 to

the east rail of tract 2 is 6 feet. From the west rail of track 2 to the east rail of track 3 is 10 1/2

feet. From the west rail of track 3 to the east rail of track 4 is 12 feet 3 inches. The overhang

of a railroad freight car is 2 1/2 feet, and that of a locomotive, 3 feet. The truck driven by

plaintiff was about 20 feet long, and its front end was 6 feet from the place where plaintiff satwhile driving. Going towards Las Vegas, and about a half mile south of the depot at Moapa,

the railroad curves to the westward around some low hills. The engine and cars of a train

coming into Moapa from the south cannot be seen from there until they emerge from behind

said hills in rounding the curve. Going northwards out of Moapa the railroad makes a similar

curve, to the left, around low-lying hills, and the engine and cars of a train coming from the

north cannot be seen from Moapa until they emerge from behind these hills in rounding said

curve. Track 3, though not a main line track, extends as far as the eye can see from the depot

around both of said curves. Track 1 is the shortest of the four tracks, track 2 being next

shortest. The two points where track 1 joins track 2 and the two points where track 2 joins

track 3 are within the range RIYLVLRQERWKZD\VIURPWKHGHSRWEXWWUDFNVDQGERWK

H[WHQGDFRQVLGHUDEOHGLVWDQFHIXUWKHUWRWKHVRXWKWKDQWRWKHQRUWKIURPWKHSODFH ZKHUHWKHKLJKZD\FURVVHVDOORIVDLGWUDFNV


of vision both ways from the depot, but tracks 1 and 2 both extend a considerable distance

further to the south than to the north from the place where the highway crosses all of said

tracks.

About 10 feet north of said crossing, on the east side of all said tracks, is a warehouse, the

nearest corner of which is about 6 feet from the east rail of track 1. At the time of theaccident, and for at least two and one-half days immediately prior thereto, there were two

lines of freight cars standing on tracks 1 and 2—about eight or nine of such cars on each of

said tracks. Most of them were box cars. The car nearest the highway on track 1 was about 10

feet from the road, and the car nearest the highway on track 2 about 15 feet from the road.

There were no cars on track 3 and none on track 4, except those on the train which struck

plaintiff's truck. To a person approaching the crossing from the east or northeast, the view to

the south was obstructed to a large extent by various buildings and trees. The effect of

def endants' allowing the cars to stand on tracks 1 and 2 was to further obstruct the view to the

south to such an extent that one crossing the tracks from east to west could not have a view

along the tracks to the south until arriving at a point 2 1/2 feet west of the west rail of track 2.Notwithstanding this added hazard, defendants did nothing whatever in the way of taking

extra precautions to safeguard persons using said crossing. Among the many safeguards that

might have been adopted by defendants was to decrease the speed of northbound trains,

particularly those passing through Moapa without stopping. There was no automatic electric

wig-wag or bell at said crossing, nor any gates or watchman.

We quote the following from the trial court's findings of fact:

“On the 22d day of February, 1933, the plaintiff, Elson H. Cox, was driving a Mack auto



truck, construction No. 11, and, pursuant to his employment by Nevada Contracting

Company, was engaged in hauling a load of gravel from the certain gravel pits situated DERXW WKUHHTXDUWHUVRIDPLOHQRUWKHDVWHUO\IURPWKH7RZQRI0RDSD&ODUN&RXQW\6WDWHRI

1HYDGDWRDSODFHRQWKHQHZ6WDWH+LJKZD\1R


about three-quarters of a mile northeasterly from the Town of Moapa, Clark County, State of

Nevada, to a place on the new State Highway No. 7A, then under construction, such place to

which the plaintiff was hauling being about two and one-quarter miles from said gravel pits.

“Plaintiff, traveling from said gravel pits, traveled upon a temporary gravel haul road until

he reached the point where same joined or led into temporary State Highway No. 7A, about

550 feet from the place of intersection of said temporary State Highway No. 7A with the

tracks of the Los Angeles & Salt Lake Railroad Company in the railroad yards at the said

Town of Moapa, Clark County, Nevada.

“Plaintiff, thereupon, passed from said gravel haul road onto said temporary State

Highway No. 7A. Said gravel haul road, upon which plaintiff was traveling, passed over a hill

near such place of joinder with said temporary State Highway No. 7A. When the plaintiff

traveled over said hill, he was traveling about 10 or 12 miles per hour, but as he started down

said hill he applied brakes to his truck and gradually reduced the speed thereof until, when he

reached the point where said temporary State Highway No. 7A merges with, or joins, the old

Moapa-Glendale-St. Thomas High Road, about 75 feet from the railroad tracks, he was

traveling about 3 miles per hour. The plaintiff continued traveling about 3 miles per hour

until he was about 20 feet east of the most easterly of the railroad tracks of the defendant

corporation, at which point he shifted gears.

“The old Moapa-Glendale-St. Thomas High Road is an old road which has been usedgenerally by the traveling public for many years, and from such place of joinder with said

temporary State Highway No. 7A., such two roads continued on together to their place of

intersection with the railroad tracks. The view of the railroad tracks to the south of Moapa, to

one traveling as plaintiff was traveling, from the top of said hill, in a JHQHUDOZHVWHUO\RU VOLJKWO\VRXWKZHVWHUO\GLUHFWLRQWRZDUGVDLGUDLOURDGWUDF NVZDVYHU\PXFKREVFXUHGE\ EXLOGLQJVDQGWUHHVDORQJQHDUDQGHDVWRIWKHUDLOURDGULJKWRIZD\DQGE\WKH

WRSRJUDSK\RIWKHFRXQWU\


general westerly, or slightly southwesterly direction, toward said railroad tracks, was very

much obscured by buildings and trees along, near and east of the railroad right-of-way, and by

the topography of the country. From the top of said hill, it was plaintiff's experience,

according to the evidence, that he could see a train, when same rounded the curve of the

railroad, about one-half mile from Moapa, and emerged from behind the hills there situated,

but as he descended from said hill, and traveled toward the railroad tracks, it became



increasingly difficult to see the railroad, as his line of vision became lower than the height of

the obstructions.

“On the trip mentioned, on February 22, 1933, the plaintiff, when at the top of the hill,

looked and listened for a train, and continued to do so from time to time until he reached the

railroad tracks. * * *

“Upon approaching the first, or most easterly track, the plaintiff looked toward the southand listened for a train, but did not see or hear any. Plaintiff's view toward the south was then

very much obstructed by the intervening structures and trees, and by the freight cars upon said

tracks, Nos. 1 and 2, that had been left so near the highway.

“That thus leaving said cars so parked upon said tracks Nos. 1 and 2 was unnecessary and

not required by the exigencies of the railroad operations of the defendant corporation, there

then being ample track space within the yard limits of said defendant corporation for the

leaving of said cars elsewhere; furthermore, said cars were thus left upon said tracks for an

unnecessary and unreasonable length of time not required by the exigencies of the business of

the said defendant corporation.

“Plaintiff, being required by his employment to proceed with his load of gravel, and his

view to the south being obstructed by said freight cars, relied, according to the evidence, uponhis sense of hearing, and upon the Railroad Company performing its duty by giving him SURSHUZDUQLQJRIDQDSSURDFKLQJWUDLQIURPWKDWGLUHFWLRQ


proper warning of an approaching train from that direction. He looked again to the south, and

listened carefully, as he crossed track No. 1, and, not being able to see more than 25 feet in

that direction, because of said freight cars, and not seeing or hearing any approaching train,

proceeded to cross the second track. When he reached said second track, his view to the northbecame more free from obstruction than it had been for some time, his view in that direction,

until after passing the first track, having been obstructed by the angle of the Sloan Warehouse

and due to the curve of the railroad toward the north, and after again looking south, he looked

toward the north, along the railroad tracks, for any train that might be approaching from that

direction. Plaintiff commenced looking north when he was crossing track No. 2, and

continued to look in that direction until he was crossing track No. 4.

“According to the evidence, plaintiff, when he was about 20 feet east of the tracks, and had

shifted gears, had brought his truck almost to a stop. After shifting gears, and when crossing

the tracks, the plaintiff, according to the evidence, was traveling not more than 5 miles an

hour. * * *“From the point on track No. 2 from which plaintiff started to look to the north, along the

tracks, when he was crossing track No. 2, to the place where he was when the collision

occurred, which he testified was when his seat was just over the west rail of track No. 4,

would be a distance of about 34 feet, and as he was traveling about 5 miles per hour, he

would have consumed, in thus looking toward the north, about 4.63 seconds.

“The Court believes, from the evidence, and hereby finds, that thus looking to the north for

said 4.63 seconds was not, under the circumstances then and there existing, an unreasonably



long time for him to be looking in that direction, and that the plaintiff, in approaching said

railroad tracks, in crossing same, and in looking and listening for approaching trains, to the

extent and in the manner that he did, exercised the degree of care WKDWDQRUGLQDULO\FDUHIXO SUXGHQWSHUVRQZRXOGKDYHH[HUFLVHGXQGHUOLNHFLUFXPVWDQFHV


that an ordinarily careful, prudent person would have exercised under like circumstances. * *

*

“From the evidence, the Court finds, that only the usual blasts of the whistle of said train

were blown, upon said 22d day of February, 1933, in approaching said highway crossing; that

is, after rounding the curve, about one-half mile west of the Moapa station, there were four

short blasts, then an interval of time, and then the crossing signal of two long blasts and two

shorts was given. The time which elapsed from the blowing of the first blast of the whistle

about a mile west of the depot and crossing, until the said train arrived at said last mentionedplace, was approximately two and one-half minutes, or 150 seconds. During such period of

about 150 seconds there were intervals of time aggregating about 75 seconds, or 50% of the

total time thus consumed, during which no blasts of the whistle were blown.

“The Court further finds that, upon said train approaching said crossing, on the 22d day of

February, 1933, the bell of the locomotive was rung no more than same was usually rung at

said place upon other trips when the view of travelers was unobstructed by freight cars left

upon said side tracks near said highway crossing. * * *

“The Court further finds, from the evidence, that, when the train passed the “S” board,

approximately one-half mile west of the west switch, same was traveling about 32 or 33 miles

an hour, and that when the train crossed in front of the depot, and reached the highway

crossing, where the collision occurred, it was traveling at least 20 miles an hour. The Courtfinds further, from the evidence, that the engineer of engine No. 8809, which struck plaintiff,

could not, when approaching said highway crossing, because of being on a curve (the front of

the engine obstructing his view), see the highway crossing until within about 340 to 350 feet

of same, and that it would have required only 10 or 11 seconds, traveling at 20 miles an hour,WRWUDYHOWKDWGLVWDQFHEXWWKDWWUDYHOLQJDWWKDWUDWHLWZRXOGKDYHUHTXLUHGDERXW

VHFRQGVWREULQJWKHWUDLQWRDVWRS


to travel that distance, but that, traveling at that rate, it would have required about 40 seconds

to bring the train to a stop. The Court finds further, from the evidence, that the engineer of

said train, in order to have been able to stop in the 340 to 350 feet, after said highway became

visible, would have had to reduce the speed of the engine to not exceeding 8 miles an hour.

* * *”

1, 2. We agree with the trial court that defendants were negligent in allowing the cars on

tracks 1 and 2 to remain there for an unreasonable length of time without taking any extra



precautions to safeguard persons who might use the crossing; but we are clearly convinced

that plaintiff was also negligent in not stopping his truck or motor at any time, and in

proceeding from a point 2 1/2 feet west of the west rail of track 2 onto track 4 without once

looking to the south.

The trial court found that the customary whistle signals were given, also that the bell on

the locomotive was ringing while the train was approaching the station. The testimony clearlyshows there can be no reasonable doubt that plaintiff would have heard some of the whistling,

if not also the bell and the rumble of the train, had he stopped his truck and its motor and

listened, either before going onto the tracks, or while crossing them. He certainly would have

heard what a number of other witnesses did hear. One of plaintiff's witnesses testified at the

trial that he heard four short blasts; on cross-examination he admitted that in a statement

made shortly after the accident he said: “I recall very distinctly that there were two long and

two short blasts of the whistle, and that this whistle ended when the train was right back of

the depot building.” That plaintiff would have heard some of the warning signals, had he

stopped and listened, is borne out by his own testimony to the effect that if there had been any

whistling he would have heard it without stopping. Anna C. Killeen, postmistress at Moapa,

heard the engine whistle just prior to the accident, although she was in the room back of thepost office, ZKLFKLVORFDWHGRQWKHVWUHHWZHVWRIWKHWUDFNVLQWKHEORFNQRUWKRIWKH

FURVVLQJ


which is located on the street west of the tracks, in the block north of the crossing. Plaintiff

gave the following testimony concerning his truck and the noise made by it: “Coming down

the hill my truck was making the ordinary noise of a truck, and the truck was in fairly good

shape.“Q. There was a kind of a rumble in your seat? A. Any truck there is a certain amount of

noise, yes.

“Q. Quite a bit of noise? A. Not out of the ordinary for a truck of that type.

“Q. You testified when you gave your deposition it made quite a bit of noise. A. Quite a

bit of noise, yes.

“Q. Well, that's correct, isn't it, it made noise? A. For a truck, yes.

“Q. Considerably more noise going than when it is standing still? A. Oh, yes. The truck

had a muffler on it. It was a Mack truck. It had a six yard body on it, and I think it was rated

either 2 1/2 or 3 ton truck. It carried 6 cubic yards of gravel. We were hauling 5 yards on

them at that time.”Mr. Loughley, one of plaintiff's witnesses, testified, like plaintiff, that he did not hear any

whistle, but that he would more than likely have heard a blast from where he was if there had

been one. As a matter of fact there were nine blasts—a long one about a mile from the station,

four short ones as the train rounded the curve, and two long and two short ones as a crossing

signal—the last one ending just as the engine reached the depot.

Besides being negligent in not stopping his truck or its motor at all so that he could listen

effectively, the evidence also clearly shows that plaintiff did not act as a reasonably prudent



man when he traversed the space from track 2 to track 4 without so much as glancing to the

south after passing a point 2 1/2 feet west of the west rail of track 2. From the time when

plaintiff arrived at track 1, his view to the north was clear and unobstructed. Looking to the

south before arriving at a point 2 1/2 feet west of the west rail of track 2 was useless.

According to plaintiff's own testimony, he did not ORRNVRXWKDWDQ\WLPHDIWHUSDVVLQJWUDFN

XQWLOKHZDVSDUWZD\DFURVVWUDFN


look south at any time after passing track 2 until he was part way across track 4. Emerging

from the west overhang of track 2, plaintiff traveled 16 feet before reaching a place where the

front end of his truck would enter the east overhang of track 4.

Plaintiff did not at any time stop his truck and its motor so he could listen effectively, nor

did he, after coming down off the hill, look to the south before crossing track 4 at any time,

except when his view in that direction was obstructed. Thus there was a failure to look asrequired by law, as well as a failure to stop and listen. If plaintiff had acted with ordinary

prudence he would have had time to see the train coming from the south, and to stop before

the front of his truck arrived at a point three feet east of the east rail of track 4.

It is to be borne in mind that plaintiff was familiar with this crossing and had passed it

going back and forth a number of times on each of the two days immediately preceding the

day of the accident, as well as on the morning of that day. The cars standing on tracks 1 and 2

had not been moved since plaintiff went to work at Moapa 2 1/2 days before.

In support of our view that plaintiff was negligent in neither listening nor looking

effectively as a person of ordinary prudence, under all the circumstances should have done,

we cite the following authorities: Hartl v. Chicago, M., St. P. & P. R. Co. (C. C. A.) 73 F.

(2d) 875; California Rendering Co. v. Pacific Electric R. Co., 205 Cal. 73, 269 P. 922;Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R.

645 (as modified by Pokora v. Wabash R. Co., 292 U. S. 98, 54 S. Ct. 580, 78 L. Ed. 1149,

91 A. L. R. 1049); Lockett v. Grand Trunk Western R. Co., 272 Mich. 219, 261 N. W. 306;

Stephenson v. Northwestern Pac. R. Co., 208 Cal. 749, 284 P. 913; Johnson v. Missouri Pac.

R. Co. (Mo. App.) 72 S. W. (2d) 889; Eddlemon v. Southern Pac. Co., 41 Cal. App. 340, 182

P. 811; Golay v. Northern Pac. R. Co., 105 Wash. 132, 177 P. 804, 181 P. 700; Jones v.

Southern Pac. Co., 34 Cal. App. 629, 168 P. 586; &DWKFDUWY2UHJRQ:DVKLQJWRQ51

&R2UH


Cathcart v. Oregon-Washington R. & N. Co., 86 Ore. 250, 168 P. 308; Wehe v. Atchison, T.

& S. F. R. Co., 97 Kans. 794, 156 P. 742, L. R. A. 1916e, 455; Farden v. Great Northern R.

Co., 189 Minn. 17, 248 N. W. 284.

We are not to be understood as holding that drivers of motor vehicles must always stop

before going upon railroad crossings; nor do we hold that in the instant case it was plaintiff's



duty to first stop the truck, and then get out and walk forward to a point where he could have

a clear view in both directions.

3. With respect to the question as to defendants' negligence, we deem it pertinent to further

observe that although defendant engineer had clear view of the crossing for at least 340 or

350 feet, he did not, according to his own statement, know there had been an accident until

informed by the fireman that the train had struck a truck. It is the duty of enginemen to keep avigilant lookout while approaching town railroad crossings. Deiss v. Southern Pac. Co., 56

Nev. 151, 47 P. (2d) 928. The evidence shows that if the engineer had been vigilantly looking

along the track he would certainly have seen the truck for some distance before reaching the

crossing, and might have been able, by applying the emergency brakes, to retard the speed of

the train sufficiently to lessen the seriousness of the accident, if not prevent it.

4-6. Returning now to the matter of plaintiff's negligence: A recovery will not be barred if

such negligence was not a proximate cause of the injury. If his negligence was remote, and

without it he still would have suffered the injuries, then it was not contributory in the sense of

the law. O'Connor v. North Truckee D. Co., 17 Nev. 245, 30 P. 882. In Musser v. Los

Angeles & S. L. R. Co., 53 Nev. 304, 299 P. 1020, 1024, this court defined “contributory

negligence” as “such an act, or omission of precaution, on the part of the plaintiff, amounting

in the circumstances to such want of ordinary care as, taken in connection with the negligent

act, or omission of precaution, on the part of the defendant proximately contributes to the

injury complained of.”


It is not necessary that the plaintiff's negligence shall have been the sole proximate cause of

the injury. 1 Thompson on Negligence, sec. 217; Pinson v. Young, 100 Kans. 452, 164 P.

1102, L. R. A. 1917f, 621. In the instant case, plaintiff's contributory negligence was clearly aproximate cause of the injuries.

7. If in this case the injuries had been willfully, wantonly, or recklessly inflicted, plaintiff's

contributory negligence would be no defense. Crosman v. Southern Pac. Co., 44 Nev. 286,

194 P. 839; Restatement of the Law of Torts, vol. 2, secs. 481, 482. But, while defendants

were guilty of negligence, we are satisfied that they did not intend that plaintiff or anyone else

should be injured as a result of their negligence, nor do we believe that plaintiff's injuries

were the result of defendants' wanton or reckless disregard of his safety.

The judgment, and the order denying a new trial, are reversed.


Coleman, J.: I concur in the order.

(Petition for rehearing pending.)

____________



ÐÐÐÐ56 Nev. 489, 489 (1936) First National Bank v. AbelÐÐÐÐ

FIRST NATIONAL BANK OF WINNEMUCCA

v. ABEL Et Al.

No. 3086

April 10, 1936. 56 P. (2d) 148.

1. Pleading.

Prayer of complaint is no part of statement of cause of action (Comp. Laws, sec. 8594).

2. Appeal and Error.Order striking amended complaint which contained no prayer and dismissing suit was reversed, and

case was remanded, with leave to plaintiff to apply to trial court for order allowing amendment to

amended complaint as plaintiff might deem proper (Comp. Laws, sec. 8594).

Appeal from Sixth Judicial District Court, Humboldt County; E. P. Carville, Judge,presiding.

Suit by the First National Bank of Winnemucca, a corporation, against Daisy K. Abel, as

administratrix of the estate of W. H. Abel, deceased, and another. From an order striking its

amended complaint and dismissing the suit as to the named defendant, plaintiff appeals.

Order reversed, and case remanded.

C. E. Robins and Thos. J. Salter, for Appellant:

The prayer in the first amended complaint demands judgment against the defendant, Daisy

K. Abel, as administratrix of the estate of W. H. Abel, deceased, and against the defendantEmery Riff, and it is unnecessary, of course, to set out in the prayer in so many words what

the effect of the judgment will be, as the matter is covered by the statute (sec. 9717 N. C. L.).

If the judgment to be entered in this case follows the law, it is of no moment what was in the

mind of the pleader when he made his prayer.

Hawkins, Mayotte & Hawkins, for Respondents:

The prayer of the complaint is for a personal judgment against both defendants named, and

there is no prayer in accordance with sec. 9717 N. C. L. It is plain, therefore, that the

judgment sought in said complaint by the plaintiff, had it been entered as asked for, would be

a void judgment as to the defendant Abel, assuming her WREHVXHGDVDGPLQLVWUDWUL[


to be sued as administratrix. Butzbach v. Siri et al., 53 Nev. 453, 454, 5 P. (2d) 533. It is,

therefore, apparent that the judgment which could be entered upon either of the complaints

herein (for they are identical as to the prayer) is a simple judgment for money, in ordinary



sequence to be followed by an execution, levy and sale.

OPINION


The plaintiff brought suit against the defendants to recover upon promissory notes in thesum of $44,068.40, together with interest and attorney's fees. The complaint contains a prayer

for judgment for principal, interest, and attorney's fees, and for general equitable relief. A

demurrer was sustained to the said complaint, whereupon, with leave of court, the plaintiff

filed an amended complaint. On motion, the amended complaint was stricken and the suit

was ordered dismissed as to Daisy K. Abel, administratrix, etc., from which order an appeal

was taken.

After the record on appeal was filed herein, counsel for respondent made several motions

in this court. The opinion denying the same, which states the facts which are involved on this

hearing, is reported in 56 Nev. 6, 41 P. (2d) 1061, where the law of this case is stated. The

said opinion was filed March 6, 1935. Theretofore and on February 6, 1935, counsel for

appellant filed their brief on the merits; and on June 25, 1935, counsel for respondent filedtheir brief, the opening paragraph of which reads: “The appellant has filed herein its opening

brief and therein has argued and resubmitted to this court questions which, as it seems to us,

were passed upon by the court in that certain opinion filed herein March 6, 1935, under and

upon a motion to strike the notice of appeal, the undertaking on appeal, the bill of exceptions,

to dismiss the appeal, and to affirm the order or judgment of dismissal.” Counsel follows up

this statement with a brief of 27 pages.


The opinion heretofore filed in this matter being the law of the case on the point therein

considered, we need not consider the question of the correctness of the order striking and

dismissing the suit. Wright v. Carson Water Co., 22 Nev. 304, 39 P. 872; Id., 23 Nev. 39, 42

P. 196; 4 C. J., p. 1093.

1. There is, however, one point urged by respondent which we may allude to, namely, that

there is no prayer to the complaint, in accordance with section 8594 N. C. L. We have held, in

keeping with the well-recognized rule that the prayer of a complaint is no part of the

statement of a cause of action. Keyes v. Nevada Gas Co., Ltd., 55 Nev. 431, 38 P. (2d) 661.

In the same case we touched upon the function of the prayer to a complaint.

2. It is ordered that the orders appealed from be and hereby are reversed, and the case isremanded to the lower court, with leave to plaintiff to apply to the lower court within ten days

from the receipt of a copy hereof for an order to allow it to amend its amended complaint in

such respects as it may deem proper.

____________



ÐÐÐÐ56 Nev. 492, 492 (1936) In Re Paroni's EstateÐÐÐÐ

In Re PARONI'S ESTATE

No. 2992

April 10, 1936. 56 P. (2d) 754.

1. Wills.Testator's intention controls in interpretation of will.

2. Wills.In ascertaining testator's intention, recourse may be had, in doubtful case, to surrounding

circumstances.

3. Wills.Testimony that Italian word “fra” sometimes means “among,” instead of “between,” and that general

accepted meaning thereof in testator's community was “among,” held to warrant court's holding that

testator did not intend to bequeath his estate to two units of beneficiaries by provision in will for division

thereof “fra nepotti” and his sisters, but intended to distribute estate equally among his surviving nieces,nephews, and sisters.

4. Wills.Italian word “nepotti,” followed by statement in Italian that there were five of them in certain state

and two in foreign country, in will providing for division of testator's estate “fra nepotti” and his sisters,

held to mean nephews and nieces, as witnesses testified, though one of such nephews lived in another

state, without testator's knowledge, when will was drawn.

5. Wills.“Class gift” is gift of aggregate sum to body of persons, uncertain in number at time thereof, to be

ascertained at future time.

6. Wills.

Testamentary gift to designated nephews and nieces of testator held not “class gift” as gift touncertain number which might fluctuate and did fluctuate as result of one nephew's death during testator's

lifetime.

7. Executors and Administrators.Counsel, contending unsuccessfully on his client's appeal from order for partial distribution of

testator's estate among eight devisees, including appellant, equally, that gift was to composite class of two

units, one of which consisted of appellant, so as to entitle her to half of estate, held not entitled to

allowance of fee for prosecuting appeal.

Appeal from Third Judicial District Court, Eureka County; L. O. Hawkins, Judge,

presiding.

In the matter of the estate of Phillip Paroni, deceased. From an order of partial distribution,Marie Paroni appeals. Affirmed.


W. R. Reynolds, for Appellant:



The rules of law laid down in Re King's Estate, 200 N. Y. 189, 93 N. E. 484, insofar as

class gifts are concerned, is the law applicable to this case, in the event the court should

decide that the case at bar was a class gift. It is stated in that opinion that a gift to nephews

and nieces without designation, restriction or limitation is a gift to a class. In the case at bar

the nephews and nieces are not named, or otherwise designated, nor is the gift restricted or

limited to any particular nephews or nieces, or to any particular number of them. Thereference in the latter part of the will, wherein it is stated “the nepotti are 5 in California and

2 in Switzerland” does not have the effect of limiting the gift to the seven “nepotti,” for the

testator did not say so. “A clear gift in one clause cannot be taken away or cut down by

doubtful expressions in another clause.” 40 Cyc. 1413. Further, this clause in the latter part of

the will must be disregarded for the reason that the evidence shows that at the date of the will

there were four in California, one in Oregon, and two in Switzerland. Therefore, if the clause

had the effect of restricting and limiting the gift to the nieces and nephews in California and

Switzerland, then the nephew in Oregon would be left out, which was not the intention of the

testator as declared in the fore part of the will.

The gift is an immediate gift, to take effect at the death of the testator, and since

membership of the class of nephews and nieces is subject to fluctuation, it must necessarilybe a class gift.

Geo. P. Annand, for Respondents:

The naming in the will of the nephews first, adding, “and my sister Maria,” taken in

connection with the word “fra,” seems to strengthen the interpretation that “fra” used with the

word “divice,” puts the sister in the same class as the nephews, thus expressing the general

relation of connection or addition, as the word “and” is defined by Webster. Rogers v.

Morrell et al. (S. C.), 64 S. E. 143.


The “nepotti” were designated and identified as five in California and two in Switzerland,

which is a definite limitation. The number was not increased before the death of the testator.

The court is not called upon to decide what was possible, but to decide what is probable

under existing facts. In re Morrison's Estate (Cal.), 71 P. 473.

The words in the will of Phillip Paroni: “all my property to my seven nephews and my one

sister Maria,” whose married name is not given, indicate that he regarded all them equally. In

re Davis' Estate (Pa.), 179 Atl. 73.

So, whatever the interpretation of the Italian words “fra” and “nepotti” may be, the clearand obvious intention to distribute to nephews, nieces and sister in equal shares should

control the legal operation of the technical words. In re Hartung's Estate, 40 Nev. 262, 160 P.

782.

The request of counsel for an allowance of attorney's fee cannot be for additional fee in the

matter of the appeal only, but must be for services rendered the estate in the probate

proceedings. The request of such fee should be made in the probate court, where that court

could determine the services rendered and what in the discretion of the court is a reasonable



fee. There is nothing of record before this court to indicate the services rendered, nor to

acquaint the court with the value of the estate.

OPINION

By the Court, Coleman, J.:This is an appeal from an order of partial distribution of an estate, and involves the

interpretation of a will.

Phillip Paroni, the testator, was born in the Italian canton in Switzerland, and came to this

country when about sixteen years old. He settled in Eureka, in this state, where he died when

about sixty-seven years of age, leaving neither widow, offspring, father, or mother.

By the terms of the will, deceased provided that all WKDWEHORQJHGWRKLPVKDOOEHGLYLGHG ³IUDQHSRWWL´DQGP\VLVWHU0DULH


that belonged to him shall be divided “fra nepotti” and my sister Marie.

The words in the will over which there is some controversy are “fra” and “nepotti,” though

the chief contention relates to the interpretation to be given to “fra.” The appellant contends

this word should be interpreted to mean “between,” whereas respondents contend that it

should be interpreted to mean “among.”

At the time the will was written the testator had a sister Mary or Marie, and as nephew and

niece, the two children of his sister Marie, all of whom resided, and now reside, in

Switzerland, and three nieces and two nephews, the children of his sister Rose, four of whom

were living in California and one in Oregon. Subsequent to the making of the will, but prior

to the death of testator, one of the California nephews, Walter Paroni, died, leaving a son,Walter Paroni, Jr., who is still living.

The theory of Counsel for appellant, as expressed in his brief, is as follows:

“The questions on appeal are limited to two main points. The appellant claiming that the

gift is one to a composite class of two units, one unit consisting of the nephews and nieces,

and the other the sister, Marie Paroni, the appellant herein, and that the whole estate should

be divided equally between the two units. That is, one half to each unit.

“2. That the grandnephew takes nothing, because of the class character of the gift, and that

our statute, section 9922 N. C. L., is inapplicable to class gifts.”

The lower court rejected the theory of appellant, and held, in substance, that had Walter

Paroni survived the testator the estate should be distributed equally among the nieces,nephews, and Marie, the sister; but since testator survived Walter Paroni, that Walter Paroni,

Jr., was entitled to one-eighth of the real estate, but that as to one-eighth of the personalty the

testator died intestate—this being the portion which would have gone to Walter Paroni, the

nephew, had he survived the testator.

The appellant, to sustain her contention, called as DZLWQHVV' U




a witness Dr. Benjamin F. Chappelle, professor of Romance languages at the University of

Nevada, who, after taking degrees at universities in America, studied extensively in Europe.

He is unquestionable eminently qualified as a translator from Italian into English. Relative to

the use of the word “fra,” Dr. Chappelle testified:

“Primarily ‘fra' would be ‘between.' Sometimes it is used to translate the idea where we

say among. * * *

“Q. The word may mean within, it may mean between, and it may mean among? A. The

primary meaning is between.

“Q. But it may mean among? A. It may mean among.”

Paul DeMartini, a witness called in behalf of respondents, testified as to his qualifications

as an interpreter. It appears from his testimony that he is a man of limited education; that he is

a publisher of an Italian paper; that he had been the official Italian interpreter of the superior

courts of San Francisco for twelve years. He testified:

“Q. What did you interpret the word ‘fra' as used in that will to mean? A. Among.“Q. May it be between? A. I don't believe so from the context of the document and

because it speaks of a class and not of two.

“Q. Are the Italian words ‘fra' ‘tra' and ‘infra' interchangeable in their use? A. They are to

a great extent. ‘Fra' and ‘tra' are. ‘Infra' is also by many people who are not educated. ‘Infra' is

more in the sense of within than between. But ‘fra' and ‘tra' are interchangeable.

“Q. What may the word ‘fra' mean? A. It may mean between and among depending upon

its use in the sentence, the context of the sentence.

“Q. The word ‘tra' what does that mean? A. The same thing would apply.

“Q. The words ‘infra,' ‘fra' and ‘tra' are synonymous? A. Yes.

“Q. During your official position as Italian interpreter for the Superior Courts in the

County of the Pacific, &LW\RI6DQ)UDQFLVFR6WDWHRI&DOLIRUQLD\RXKDYHKDGRFFDVLRQWR FRPHLQFRQWDFWZLWKDJUHDWPDQ\,WDOLDQSHRSOHKDYH\RXQRW"$0DQ\PDQ\RIWKHP

HYHU\GD\


City of San Francisco, State of California you have had occasion to come in contact with a

great many Italian people, have you not? A. Many, many of them every day.

“Q. Has it been your experience that they are very careful in the discrimination, in the use

of their words? A. They are not, absolutely not.“Q. Have you ever heard an Italian speaking concerning more than two people use the

word ‘fra'? A. Yes, sir. Often, very often.

“Q. Have you heard an Italian when speaking of more than two people use the word ‘tra'?

A. Occasionally but not as a rule.

“Q. Which would you say was most frequently used among the middle class of Italian

people? A. ‘Fra'.



“Q. What language would an Italian be likely to use when disposing of his property to a

sister and his nephews, one-half to his sister and one-half to his nephews? A. It would be in

specific terms.

“Q. Would you state it in Italian? A. I would have to write it.

“Attorney Vargis: Write in and then read your translation. A. The property of which I

possess should be divided, one-half to my nephews and one-half to my sister Maria.“Attorney Vargis: Suppose you wanted to divide it between all of them. A. My property

should be divided among my nephews and my sister.”

J. B. Biale, a prominent merchant of Eureka, was also called as a witness in behalf of

respondents. He testified that he was from Genoa, Italy; that he had known testator for more

than forty years, and was employed by him for some time as a clerk in a general store; that he

kept the books and transf erred the entries in the daybook into the journal; that often deceased

made entries in the daybook in Italian; and that he entered them in the journal in English. He

also testified that the deceased spoke a Swiss dialect; that he would not think deceased had

very much schooling; and WKDWWKHJHQHUDOO\DFFHSWHGPHDQLQJRI³IUD´LQWKH(XUHND FRPPXQLW\LV³DPRQJ´


that the generally accepted meaning of “fra” in the Eureka community is “among.”

As to the translation of “nepotti,” Dr. Chappelle testified that it means nephews, nieces,

grandchildren, descendants. De Martini testified that it means nephews and may include

nieces, and that the dictionary says it includes grandchildren.

1, 2. It is a cardinal rule governing the interpretation of wills that the intention of the

testator controls, and that in ascertaining such intention recourse may be had, in a doubtful

case, to the surrounding circumstances. In re Hartung's Estate, 40 Nev. 262, 160 P. 782, 161P. 715; 69 C. J., p. 63.

3. We are not justified in saying that the lower court erred in holding that it was not the

intention of the testator to bequeath his estate to two units, as contended by the appellant. In

fact, the testimony of Dr. Chappelle, the witness called in behalf of the appellant, does not

call for a conclusion contrary to that reached by the court. He testified that “fra” is sometimes

“used to translate the idea where we say among.” This testimony, standing alone, would have

justified the court in holding as it did as to the two units theory urged by appellant. De

Martini strengthens the conclusion. Mr. Biale, who had known the deceased for many years

and who had been employed by him in his store, testified that the deceased spoke a Swiss

dialect, and that he thought testator did not have very much schooling. He also testified thatthe generally accepted meaning of “fra” in the Eureka community was “among.” We do not

see how the lower court could have reached any other conclusion than it did on the point

above mentioned.

In view of the fact that the evidence warranted the trial court in assuming that the testator

might have used the word “fra” to mean among, we feel that we need not determine if the

circumstances justified the court in giving “fra” that construction.

4. No serious point is made here as to the interpretation of “nepotti,” for it is admitted that



following this ZRUGWKHUHDUH,WDOLDQZ RUGVVWDWLQJWKHUHDUHILYHLQ&DOLIRUQLDDQGWZRLQ 6ZLW]HUODQG²UHIHUULQJWRILYHFKLOGUHQRIWHVWDWRUVVLVWHU5RVHDQGWKHWZRFKLOGUHQRIKLV

VLVWHU0DULH


word there are Italian words stating there are five in California and two in

Switzerland—referring to five children of testator's sister Rose and the two children of his

sister Marie. There can be no contention on this point, in view of the facts.

Counsel for appellant seeks to make a point of the fact that one of the children of testator's

deceased sister Rose was living in Oregon at the time the will was drawn. It seems to us there

can be no merit in this contention. It is conceded that the one who lived in Oregon at the time

was a son of Rose. In fact, he is the administrator, with the will annexed, of testator. It is

evident testator did not know when he wrote the will that this nephew had moved to Oregon.

5, 6. Counsel contends that the gift to the nephews and nieces was a class gift. He says it

was a class gift because the number of nephews and nieces might fluctuate, and in fact did

fluctuate as the result of the death of his nephew Walter Paroni. We think counsel is in error.

1 Jarman on Wills (7th ed., Sanger), at p. 310, defines a class gift as being “a gift of an

aggregate sum to a body of persons uncertain in number at the time of the gift, to be

ascertained at a future time. * * *” Such is the well-recognized rule. In re Murphy's Estate,

157 Cal. 63, 106 P. 230, 137 Am. St. Rep. 110; 28 R. C. L., p. 260, and authorities cited to

note 8.

In the instant matter the will did not contemplate a gift to an uncertain number—to a

number which might fluctuate—but to a definite number—eight in all; hence it clearly

appears that it was not a class gift.

The other point made being bottomed upon the “class gift” contention, which we haverejected, needs no consideration.

7. Counsel for appellant asked, in his oral argument, that this court make an order allowing

him a fee for prosecuting this appeal. He cited no authority justifying such an order, and we

know of none. The application is denied.

No error appearing, the orders appealed from are affirmed.

____________


In Re WILSON'S ESTATE

TAYLOR v. WILSON

No. 3121

ON PETITION FOR REHEARING



May 1, 1936. 56 P. (2d) 1207.

1. Appeal and Error.In contest between husband and wife's daughter over distribution of property on wife's death, daughter

held not entitled to urge on appeal objection to competency of husband as witness where objection

thereto had been withdrawn at trial in order to enable daughter to keep her own testimony in record

(Comp. Laws. sec. 8966).

2. Vendor and Purchaser.Recording of deed or other instrument does not impart notice other than to subsequent purchasers and

mortgagees (Comp. Laws, sec. 1497).

3. Husband and Wife.Recording of deed in wife's name held not notice to husband that deed had been taken in wife's name

as regards husband's right in property as community property (Comp. Laws, sec. 1497).

4. Affidavits.In contest between husband and wife's daughter over distribution of property on wife's death,

husband's affidavit for change of venue in wife's divorce suit that suit did not affect real property in

county other than that of husband's residence held admissible, since statements might have been intended

as statements of fact.5. Appeal and Error.

In contest between husband and wife's daughter over distribution of property on wife's death, weight

to be accorded husband's affidavit for change of venue in wife's divorce suit alleging that suit did not

affect real property in county other than that of his residence was for trial court.


On petition for rehearing. Petition denied.


F. Raffetto and J. M. Frame, for Appellant.

George L. Sanford, for Respondent.


OPINION

By the Court, Taber, J.:1. In our former opinion nothing was said concerning the competency of respondent as a

witness. In appellant's petition for rehearing it is asserted that, because Mrs. Wilson was dead,

respondent was not a competent witness, because of the provisions of section 8966 N. C. L.

At the hearing in the district court, appellant found herself in a position where she must either

have a material portion of her testimony stricken under the provisions of said section, or

withdraw her objection to respondent's competency. She chose to have her own testimony

remain, and expressly withdrew her objection to respondent's competency. She is not,



therefore, in a position to now urge upon this court any objection to the competency of

respondent as a witness in the lower court.

2, 3. Respondent testified that the first time he knew of Mrs. Wilson's having taken the

deed to the Marsh avenue property in her own name as the wife of George P. Wilson, was

after she commenced suit against him for divorce in the fall of 1933. Appellant contends that

even if said testimony was true as to actual knowledge, which she denies, he must beregarded in the law as having had knowledge after the recording of the deed in 1926. Section

1497 N. C. L. reads: “Every such conveyance or instrument of writing acknowledged or

proved and certified, and recorded in the manner prescribed in this act, shall, from the time of

filing the same with the recorder for record, impart notice to all persons of the contents

thereof; and subsequent purchasers and mortgagees shall be deemed to purchase and take

with notice.” In her petition for rehearing appellant says that the recorded deed “noticed the

whole world, including the respondent, George Wilson, and stands as a conclusive

presumption that respondent did have such knowledge.” It is not our understanding, however,

that the statute gives notice to all persons in DOOVLWXDWLRQV


all situations. As was said by this court in the case of Wilson v. Wilson, 23 Nev. 267, 45 P.

1009, 1010, “We are satisfied, however, that the statute of this state concerning records

(section 2594, Gen. St.) is not intended to impart notice other than to subsequent purchasers

and mortgagees. McCabe v. Grey, 20 Cal. [509] 516.”

As one fact tending to prove that the Marsh avenue property in Reno was separate

property, petitioner points out that the taxes on said property were assessed to Mrs. Wilson.

But while it is true that the property was assessed in her name, the record shows that the taxes

were actually paid out of the funds of N. C. Prater Company, and, as stated in our formeropinion, the Marsh avenue property was purchased, not with the separate funds of Mrs.

Wilson, but with funds from the two joint savings account deposits in the names of Mr. and

Mrs. Wilson.

4, 5. Petitioner contends that the statement quoted in our former opinion from Mr.

Wilson's affidavit, filed in support of his application f or change of place of trial in the divorce

suit commenced by Mrs. Wilson in October, 1933, is a statement of fact and not merely the

opinion of the affiant. The statement in question is in the following words: “That the said

action is for divorce and does not affect any real property or estate right or interest therein in

Washoe County or in any other county other than Storey County, Nevada.” When the

affidavit containing said statement was offered in evidence, respondent's counsel objected toits admission in these words: “That is a conclusion and we object to that statement.” If

respondent, as a witness, had been asked by his counsel, “Mr. Wilson, does this action for

divorce now before the court affect any real property or estate right or interest therein in

Washoe County or in any county other than Storey County?” the court would undoubtedly

have sustained an objection to such question upon the ground that it calls for a legal

conclusion. However, the statement in question was presented to the lower court, and comes

before us now, in an affidavit, and it is impossible for us, as it PXVWKDYHEHHQIRUWKH



GLVWULFWFRXUWWRNQRZMXVWZKDWUHVSRQGHQWKDGLQPLQGZKHQKHPDGHWKHVWDWHPHQW


must have been for the district court, to know just what respondent had in mind when hemade the statement. He may have meant, as contended by petitioner, that the divorce action

did not affect any real estate in Washoe County, for the reason that the Marsh avenue property

was the separate property of Mrs. Wilson; or because (as he testified he thought) said property

stood in the name of N. C. Prater Company, as did the dozen or more other pieces of real

property in Virginia City; or for some other reason. The affidavit did not make any direct or

positive statement as to whether any property in Washoe County was community property,

separate property, property held in joint tenancy, or property belonging to N. C. Prater

Company. Statements, apparently legal conclusions or opinions, sometimes include implied

statements of fact. But in our opinion the statement under discussion does not, by necessary

implication, include any factual statement to the effect that there was no community propertyin Washoe County, or that the Marsh avenue property was the separate property of Mrs.

Wilson. Inasmuch, however, as it is not clear that the statement in question was merely an

opinion or legal conclusion, but might have been intended as a statement of fact, we think the

aff idavit was properly admitted in evidence. The lower court had the right to consider it in

connection with all the other evidence, and to determine the weight to be given it. The

statement in our former opinion to the effect that it would have constituted reversible error

had the court excluded said affidavit, is to be disregarded, since, as the affidavit was

admitted, it is unnecessary to decide whether its exclusion would have called for a reversal.

While the views here set forth modify to some extent those in our former opinion relating

to respondent's affidavit, they do not, in our opinion, justify a rehearing in this case.

Other points presented by the petition for rehearing have been carefully considered, but weare still satisfied that the court would not be justified in setting aside DWKHILQGLQJRIWKH ORZHUFRXUWWKDWQRFRPPXQLW\SURSHUW\ZDVFRQYHUWHGLQWRVHSDUDWHSURSHUW\RUEWKH ILQGLQJWKDWUHVSRQGHQWGLGQRWIRUIHLWDQ\ULJKWVXQGHUWKHSURYLVLRQVRIVHFWLRQ1

&/


(a) the finding of the lower court that no community property was converted into separate

property, or (b) the finding that respondent did not forfeit any rights under the provisions of section 3364 N. C. L.

The petition for rehearing is denied.

____________




In Re MacDONNELL'S ESTATE

MacDONNELL v. ARNOTT Et Al.

No. 3130

March 13, 1936. 55 P. (2d) 834.



L. D. Summerfield, for Appellants.

Joseph P. Haller and Albert Hilliard, for Respondent.

Per Curiam:

It is ordered that a rehearing be granted in the above-entitled matter as to the claim of Ross

Burke Co. only.

It is further ordered that upon the argument on rehearing counsel discuss the effect of the

failure of appellants to urge estoppel in the lower court, in view of the rule in Paterson v.

Condos, 55 Nev. 260, 30 P. (2d) 383, and also the question of how the conduct of the widow,

even if sufficient to estop her, can affect the matter in view of the existence of a minor child.

On Rehearing

May 2, 1936. 57 P. (2d) 695.

1. Executors and Administrators.

Statute providing that allowance made by court in settling estate should be paid in

preference to all other charges except funeral charges held not to authorize payment of

funeral charges out of exempt insurance money, since “allowance” under statute

providing therefor was something to be set aside in certain circumstance in addition to

exempt property (Comp. Laws, secs. 9701, 9702).

2. Estoppel.

To constitute “estoppel,” it must be clearly shown that party relying upon it was

induced by adverse party to change KLVSRVLWLRQWRKLVGHWULPHQWDQGEXUGHQRI

SURYLQJWKLVLVXSRQRQHDVVHUWLQJHVWRSSHO


his position to his detriment, and burden of proving this is upon one asserting estoppel.

3. Exemption.



Widow held not estopped from claiming exempt insurance money and preventing

claim for funeral charges being paid therefrom, by reply to telegram sent by party

claiming funeral charges asking instructions as to disposition of deceased's body, and

stating “economy your bill essential,” where no act was done by widow indicating

intent to have claimant believe she would not claim exemption (Comp. Laws, sec.

9701, 9702).


On rehearing. Judgment and order of lower court as to claim in question affirmed.


L. D. Summerfield, for Appellant, Ross Burke Co.:

As a matter of fact appellant, Ross Burke Co., did urge the ground of estoppel in the lower

court. It was there presented, argued, briefed and submitted. That this was done in the lower

court will doubtless be conceded by respondent.When exempt property is set aside under the provisions of sec. 9700 N. C. L., it does not

go to the family in common or undivided shares. Each member of the family takes a definite

and specific portion. Sec. 9703 N. C. L. Hence, in the case at bar one half of the exempt

property so set aside would belong to the widow, and the other half to the minor child. On the

estoppel of the widow, therefore, the amount of the Ross Burke Co. claim should be declared

deducted from her half of the exempt property, and the other half to go in full to the minor

child. This is true, because sec. 9702 N. C. L. makes special provision for the payment of

funeral charges, even where property is set apart to the family. It is also true in this case

because Ross Burke Co. negotiated with the widow, and the expenses were incurred at her

direction and with her sanction. She is, therefore, estopped to take any share of the insurancemoney which would leave Ross Burke Co. unpaid.


That estoppel applies in a proper case under sec. 9700 N. C. L., is shown by the statement of

the court in Hunter et al. v. Downs et al., 53 Nev. 132, 295 P. 438.

Joseph P. Haller and Albert Hilliard, for Respondent:

Respondent concedes, as is the fact, that appellants did urge estoppel in the lower court.

Sec. 9703 N. C. L. sets up two distinct classes of people, the widow on the one hand, and

the child or children on the other; neither is the privy of the other; if an act of the widow can

estop the child, the act of the child could estop the widow. If the minor child is not estopped,

the sum in dispute is one half of the claim, or $135.85. Is the widow estopped by her actions

from receiving the said sum of $135.85? She has made application for it; it is part of a life



insurance policy, the annual premium on which was less than $500; it is by law exempt from

execution. Sec. 9700 N. C. L., and subsection 14 of sec. 8844 N. C. L.; Estate of David

Walley, 11 Nev. 260; In re Lavendol's Estate, 46 Nev. 182, 209 P. 237; In re Foster's Estate,

47 Nev. 297, 220 P. 734; Hunter et al. v. Downs et al., 53 Nev. 132, 295 P. 438.

Should this honorable court take the view that Mrs. MacDonnell did take actions that

caused Ross Burke Co. to change their position to their detriment, they have a legitimatecharge against Mrs. MacDonnell, and one which they may proceed to collect in the usual

way. But the insurance funds are not ear-marked for Ross Burke Co. unless Mrs. MacDonnell

expressly stated to them that they would be paid from the insurance, an action impossible at

the time inasmuch as the entire insurance had by will been left to another party.

OPINION


1. We granted a rehearing to consider the contention that even if the lower court had no

discretion in the PDWWHURIPDNLQJWKHDOORZDQFHWRWKHIDPLO\WKHFODLPRI5RVV%XUNH

&RPSDQ\IRUIXQHUDOFKDUJHVVKRXOGEHSDLG


matter of making the allowance to the family, the claim of Ross Burke Company for funeral

charges should be paid.

Section 9702 N. C. L. reads: “Any allowance made by the court or judge in accordance

with the provisions of this act shall be paid by the executor or administrator in preference to

all other charges, except funeral charges.”

It is said that this section expressly contemplates payment of funeral charges out of exemptproperty. We do not think so. It contemplates payment of such charges out of an “allowance.”

An “allowance” is what may be set aside pursuant to section 9701 N. C. L., which reads: “If

the whole property exempt by law be set apart, and should not be sufficient for the support of

the widow, child or children, the district court or judge shall make such reasonable allowance

out of the estate as shall be necessary for the maintenance of the family.”

The “allowance” is something to be set aside, in certain circumstances, in addition to the

exempt property. It is this property or money that shall be subject to funeral charges. In re

Still's Estate, 117 Cal. 509, 49 P. 463, 464.

But it is said that the widow should be estopped to claim an exemption, because of the fact

that she obligated herself to pay the item in question. In support of this contention ourattention is directed to what was said in Hunter v. Downs, 53 Nev. 132, 295 P. 438, 440,

which is as follows: “An application and order for an allowance made first out of general

assets could not operate to deprive a family of the privilege conferred by section 101 unless

on some principle of estoppel, which is not applicable here.”

This falls far short of a statement to the effect that a member of a family could be estopped

from claiming property as exempt. It was nothing more than a mere reservation of the point.

In fact, that question was not involved in that case, and anything we might have said would



have been merely obiter dictum.


2. No other authority is cited in support of the contention that estoppel can apply whereexempt property is involved, though there are authorities in which there is an intimation that a

widow might be estopped; but none of those cases consider the question of public policy

involved. The question of public policy relating to estoppel in claiming an exemption is well

put in the case of Phelps v. Phelps, 72 Ill. 545, 22 Am. Rep. 149; but it is not necessary that

we decide the question of public policy, for if a widow can be held to be estopped from

claiming such an exemption in any case, there is no estoppel in this matter. It does not appear

from the record that this question was raised in the lower court, and that court did not

expressly pass upon the question; but it was stipulated on the argument on rehearing that the

question was urged upon the lower court. If any presumption follows, it is that the court

found the facts did not justify an estoppel. However this may be, it clearly appears that therecould have been no estoppel. To constitute estoppel, it must be clearly shown that the party

relying upon it was induced by the adverse party to change his position to his detriment, and

the burden of proving this is upon the one asserting estoppel. Sharon v. Minnock, 6 Nev. 377,

at page 389; Farmers & Merchants Bank v. Eureka L. & S. Co., 56 Nev. 218, 49 P. (2d) 354.

3. The evidence shows that on May 25, 1935, claimant wired the widow at La Jolla, Calif.,

as follows: “Major John Grant MacDonnell passed away this morning stop Wire instructions

as to disposition of body.”

Claimant received the following reply: “Ship remains Major John G. MacDonnell via

Railway Express collect to Washington, D. C., in care War Department. Wire date probable

arrival to Miss Mary MacDonnell, Spencer, Massachusetts. Use uniform for clothing.

Economy your bill essential.”Thereafter claimant wired the widow that the government would not advance

transportation charges, and that it could not advance them. To which Mrs.


MacDonnell replied that Washington relatives would wire Reno agent express charges.

The foregoing covers in substance all of the telegrams which passed between the parties,

affecting this matter.

A witness in behalf of claimant was asked: “Would you have incurred those expenses andshipped that body to Washington if it had not been for these telegrams from Marguerite C.

MacDonnell?” To which he replied: “I would not.”

What is there in these telegrams which could estop the widow? Nothing. The only words

used which in anyway might be said would tend to indicate an intention on the part of the

widow are the words “economy your bill essential.” These words may indicate an intention to

pay the bill. That is not enough. She must have done some act or said something to indicate



she intended to have the claimant believe she would not claim her exemption under the

statute, thereby preventing the claim being paid out of the insurance money. It is not

contended that anything of this kind was ever thought of or suggested, nor does it appear that

either she or claimant even knew, at the time the telegrams were sent, that the deceased had

the policy of insurance; hence there is no evidence upon which to base an estoppel.

For the reasons stated, the judgment and order of the lower court as to the claim inquestion are sustained.

____________

ÐÐÐÐ56 Nev. 510, 510 (1936) Lee Tire & Rubber Co. v. McCarran et al.ÐÐÐÐ

LEE TIRE & RUBBER COMPANY OF NEW YORK

v. McCARRAN Et Al.

No. 3125 (See 56 Nev. 458)

June 10, 1936.

Per Curiam:

Good cause appearing therefor, it is ordered that the petition for a rehearing filed in the

above-entitled case be denied, and that the case be remanded to the trial court for a new trial.

____________

ÐÐÐÐ56 Nev. 510, 510 (1936) Cox v. Los Angeles & Salt Lake Railroad Company

ÐÐÐÐ

COX v. LOS ANGELES & SALT LAKE RAILROAD

COMPANY Et Al.

No. 3126

ON PETITION FOR REHEARING

June 10, 1936.

1. Railroads.Truck driver, whose truck was struck by train at crossing, held in duty bound, as a man of ordinary

prudence, to bring truck and its motor to a full stop so that he could listen effectively before advancing

upon any of four tracks, notwithstanding rules that burden of proving contributory negligence on part of

plaintiff was upon defendants, that question of plaintiff's negligence is generally one for trial court, and

that finding of lower court will not be disturbed unless it is clear that a wrong conclusion has been

reached.

2 N li

nevada reports 1935-1936 (56 nev.).pdf

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