nevada reports 1935-1937 (57 nev.).pdf

7/28/2019 Nevada Reports 1935-1937 (57 Nev.).pdf

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57 Nev. 1, 1 (1935)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

VOLUME 57

____________

57 Nev. 1, 1 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.

CITY OF FALLON v. CHURCHILL COUNTY BANK

MORTGAGE CORPORATION

No. 3114

September 12, 1935. 40 P. (2d) 358.

[Reporter's NoteThe following opinion was not reported in Volume 56 for the reason

that it was deemed advisable to await the final disposal of the matter and report all phases of

the case in the same volume.]

1. Appeal and Error.General rule is that it must appear from record that bill of exceptions, if any, has been timely filed, and

unsupported statements as to such filing cannot be considered.

2. Appeal and Error.Where it does not appear that the bill of exceptions was filed in the lower court, motion to strike such bill

of exceptions must be granted.

3. Appeal and Error.Where plaintiff tendered for filing copies designated as Judgment Roll without any showing of any

kind as a basis for such offer, and only showing as to when appeal was perfected was in so-called Bill of

Exceptions which, if accepted, showed that time for filing a judgment roll had expired long prior to offer,

judgment roll was not before court (Supreme Court Rule II).

4. Appeal and Error.


2/359

Supreme court rule relative to the correction of errors or defects in transcript on file clearly contemplates

correction of defects and errors of transcript properly filed, and filed within time limit, and when there is no

bill of exceptions or judgment UROOVRILOHGWKHUHLVQRWKLQJWRFRUUHFWRUDPHQG6XSUHPH

&RXUW5XOH9,,


roll so filed there is nothing to correct or amend (Supreme Court Rule VII).

5. Courts.Although the supreme court is reluctant to make any order which will prevent hearing of an appeal on its

merits, it cannot ignore rules of procedure in doing so.

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

Action by the City of Fallon against the Churchill County Bank Mortgage Corporation.

From a judgment in favor of defendant, plaintiff appealed. On defendant's motion to strikefrom the files and records of the court the document filed by plaintiff and designated Bill of

Exceptions. Bill of exceptions stricken, and appellant's tender of judgment roll denied.

George J. Kenny andH. R. Cooke, for Respondent:

The proposed bill of exceptions was not served on respondent until April 15, 1935, at least

fifteen days after expiration of the twenty days allowed by law therefor. Section 9398 N. C. L.

And it was never filed in the court below.

Obviously, section 9386 N. C. L. relied upon by respondent does not apply to a case where

a proposed bill is not filed in the trial court at all, and does not apply to a case where such bill

is served after expiration of the time allowed therefor, but applies only where the proposedbill is filed and served within time, but omits material facts, etc., in which case the adverse

party may object on such grounds. Johnson v. Johnson, 54 Nev. 453 [433], 22 P. (2d) 128.

Tendered bills of exceptions not filed within the time allowed by statute (section 9398 N.

C. L.) will be stricken on motion. Comstock Phoenix Mining Co. v. Lazzeri, 55 Nev. 421,

36 P. (2d) 360.

The time for filing a bill of exceptions having expired, the failure to file it in time was

jurisdictional, and there could be no waiver. Johnson v. Johnson, supra.

Appellant's alternative request for leave to file herein DFHUWLILHGFRS\RIWKHMXGJPHQWUROOLVSUHPDWXUHLQWKHDEVHQFHRIWKHSURSHUPRWLRQZLWKQRWLFHRIJURXQGWKHUHIRUHWFDQG

LQDQ\HYHQWWKHUHTXHVWLVZLWKRXWOHJDOEDVLVXQGHUUXOH,,RIWKLVFRXUW


a certified copy of the judgment roll is premature, in the absence of the proper motion with

notice of ground therefor, etc., and in any event the request is without legal basis, under rule

II of this court. Treating the instant case as one where there is no bill of exceptions, the


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transcript of the record here could consist only in a certified copy of the judgment roll. It is

clear that the thirty days time for filing such judgment roll transcript has long ago expired, as

the appeal was perfected by filing and serving notice of appeal on April 15, 1935.

Eli Cann, for Appellant:

The 1935 Statutes, p. 205, sec. 32, sets forth the procedure defendant shall follow to make

its objections to a proposed bill of exceptions; and section 36 of the same act states that if a

party shall fail to make objections as required to such bill of exceptions within the time

limited he shall be deemed to have waived his right thereto.

Section 9386 N. C. L. requires the adverse party, if he wishes to object to the allowance

and settlement of a bill of exceptions, to serve and file a statement specifically pointing out

wherein said bill is defective. State ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363.

Counsel not having pursued the statutory method of offering amendments, if the proposed

bill of exceptions were not correct, and having permitted the court to settle and authenticate it

as it was presented, they are now bound by the same as it was settled, and so is this court.

Karemius v. Merchants' Protective Association (Utah), 235 P. 881.It is the policy of the law that cases should be disposed of in this court on their merits

when possible. Section 9401 N. C. L.; Orleans H. M. Co. v. Le Champ, etc. M. Co., 52 Nev.

85, 280 P. 887; Shirk v. Palmer, 48 Nev. 449, 232 P. 1083; Johns-Manville v. Lander County,

48 Nev. 244, 239 P. 387; Lindley & Co. v. Piggly Wiggly Nev. Co. (Nev.), 22 P. (2d) 355;

Coykendall v. Gray, 53 Nev. 113, 293 P. 436; Stats. 1935, p. 202, sec. 27.


However, if this court shall deem that the bill of exceptions should be stricken because itwas not filed within twenty days of the entry of judgment in the district court, and further

deem that the judgment roll as the same appears in such bill of exceptions is not properly or

sufficiently certified, appellant prays that the notice of appeal attached to the bill of

exceptions be not struck, but be retained by this court, and that appellant be permitted to file

herein a certified copy of the judgment roll.

OPINION

By the Court, Coleman, J.:

This matter is before the court on the motion of respondent to strike from the files and

records of the court the document filed by appellant and designated Bill of Exceptions,

upon the ground that the same was never filed in the lower court.

Section 9398 N. C. L. provides that a party to an action may serve and file a bill of

exceptions. The same section contemplates that a transcript of the proceedings, certified, may

be filed in lieu of a bill of exceptions. Paragraph 2, section 8829 N. C. L. also contemplates

the filing of a bill of exceptions. Counsel for appellant, upon the hearing, did not contend that


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it is not necessary that a document, to become a bill of exceptions, be filed. It was his

contention that the document in question was in fact filed with the clerk of the lower court,

and that it remained in his possession until about the time it was filed in this court.

1. It is the universal practice in this jurisdiction, so far as we recall, for the clerk of the trial

court to indorse upon a bill of exceptions, when filed, a memorandum of its filing and the

date thereof, and sign it as such clerk. There is no such indorsement upon the document inquestion, and there is no showing of any kind, except the bare statement above mentioned, of

such filing. In RSSRVLWLRQWRWKHVWDWHPHQWPDGHFRXQVHOIRUUHVSRQGHQWH[KLELWHGDOHWWHUIURPWKHFOHUNRIWKHORZHUFRXUWVWDWLQJWKDWQRELOORIH[FHSWLRQVKDGEHHQILOHGLQKLV

RIILFHLQWKHPDWWHU


opposition to the statement made, counsel for respondent exhibited a letter from the clerk of

the lower court stating that no bill of exceptions had been filed in his office in the matter.

Neither of these unsupported statements can be considered. It is the general rule that it must

appear from the record that the bill of exceptions, if any, is filed within the time fixed by law.

4 C. J. 61.

2. It not appearing that the bill of exceptions was filed in the lower court, it necessarily

follows that the motion to strike must be granted.

3. Upon the hearing of the above matter counsel for appellant tendered for filing two

copies designated Judgment Roll. No notice was given of the proposed offer, nor was any

showing made as a basis for such offer, and counsel for respondent objected thereto. Rule II

of this court provides that transcript of record on appeal, when there is no bill of exceptions in

the case, shall be filed within thirty days after the appeal is perfected. There is no showing

when the appeal was perfected, other than what appears in the so-called Bill of Exceptions,nor any showing of any kind as a basis even for the consideration of the offer by the court. If

we accept the showing in the so-called Bill of Exceptions, the time for filing a judgment

roll had expired long prior to the making of the tender mentioned.

4. Counsel for appellant direct our attention to rule VII of this court relative to the

correction of errors or defects in the transcript on file; also to numerous decisions of the

court. Neither the rule nor any of the decisions are in point. The rule in question clearly

contemplates the correction of defects and errors of a transcript properly filed, and filed

within the time limit. There being no bill of exceptions before us, nor a judgment roll, there is

nothing to correct or amend. Had there been a motion, on due notice, to file the judgment roll,

supported by an affidavit showing excusable neglect, or other satisfactory grounds, a differentsituation would be presented.

Counsel call our attention, also, to Shirk v. Palmer, 48 1HY3


Nev. 449-451, 232 P. 1083, 236 P. 678, 239 P. 1000. In that case there was a motion to


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dismiss the appeal, but there was not attack upon the bill of exceptions when that motion was

made, and the first opinion in that case treated the record as having a bill of exceptions,

properly settled, containing all of the pleadings, judgment, notice of motion for a new trial,

etc. Hence that opinion is not in point here. It will appear from a later opinion in that case (48

Nev. 451 to 457, 236 P. 678) that after the first opinion was filed a motion was made to strike

the bill of exceptions. The distinguishing feature between the situation presented on the firsthearing in the Shirk-Palmer case, and in this matter, is that in it counsel for respondent treated

the so-called bill of exceptions, which contained all the pleadings, etc., as being properly

before the court, whereas in this matter respondent attacks the only document on file, which

we hold has no place in the record, hence the appellant is in default and has nothing here as a

basis for correction or amendment. In the Shirk-Palmer case we took the position that since

there was a bill of exceptions in the record, there was a record that might be amended

pursuant to the statute mentioned, but we cannot correct or amend a record which must be

stricken.

5. It is true, as contended by counsel, that the court is reluctant to make any order which

will prevent the hearing of an appeal upon its merits, but we cannot go to the length of

ignoring the rules of procedure in doing so.There being no showing, the offer must be denied.

It is ordered that the Bill of Exceptions be stricken. It is also ordered that appellant's

tender of the judgment roll be denied.

On Motion to Permit Appellant to File Certified

Copy of Judgment Roll

November 5, 1935. 50 P. (2d) 944.

1. Appeal and Error.Appeal can be taken on judgment roll alone, or on both MXGJPHQWUROODQGELOORI

H[FHSWLRQVRURQVXFKRWKHUUHFRUGDVPD\EHDSSURSULDWHLQSDUWLFXODUFDVH6WDWV


judgment roll and bill of exceptions, or on such other record as may be appropriate in

particular case (Stats. 1935, c. 90).


Reasons allegedly excusing appellant for not properly preparing bill of exceptionswould not permit filing ofcertified copy of judgment roll after time for filing had

expired.


Supreme court would not permit certified copy of judgment roll to be filed after time

for filing had expired in absence of showing of excusable neglect for failure to file

judgment roll in time.



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Excusable neglect for failure to timely file judgment roll should have been urged on due

notice supported by proper showing at time motion to strike bill of exceptions was made.

Motion denied.


We contend that rule VII of the supreme court expressly permits us to produce a copy of

the judgment roll, duly certified, and under this rule we have asked this court's permission to

file it. State v. Hill, 32 Nev. 185, 105 P. 1025; Botsford v. Van Riper, 32 Nev. 214, 106 P.

440; State v. Bonton, 26 Nev. 34, 62 P. 595; Kirman v. Johnson, 30 Nev. 146, 93 P. 500;

Shirk v. Palmer, 48 Nev. 449, 457, 232 P. 1083, 239 P. 1000; Segale v. Pagni, 49 Nev. 313,

244 P. 1010; Orleans Hornsilver M. Co. v. Le Champ D'Or French G. M. Co., 52 Nev. 85,

280 P. 887.

George J. Kenny andH. R. Cooke, for Respondent:

We contend that respondent's objection to appellant's offer of the judgment roll as the

transcript on appeal is well taken and should be sustained, and appellant's appeal herein

should be dismissed. Supreme Court Rules II and III; 4 C. J. secs. 1991, 2189, 2191, 2195,

pp. 350, 460 and 463; Hayes v. Davis, 23 Nev. 233, 45 P. 466; Sullivan v. Nevada Ind.

Comm., 54 Nev. 301, 14 P. (2d) 262; Baer v. Lilenfeld, 55 Nev. 194, 28 P. (2d) 1038; Bottini

v. Mongolo, 45 Nev. 252, 197 P. 702; Skaggs v. Bridgman, 39 Nev. 310, 154 P. 77; Haley v.

Eureka County Bank, 20 Nev. 410, 22 P. 1102.


OPINION


This case is now before us on a motion, duly noticed, to permit appellant to file herein a

certified copy of the judgment roll. Heretofore we ordered stricken from the files a purported

bill of exceptions. On the hearing of the motion to strike the bill of exceptions, counsel for

appellant tendered for filing a certified copy of the judgment roll. This was after the time

allowed for the filing thereof had expired. Such tender was not based upon a motion dulynoticed and supported by any showing whatever of excusable neglect. We refused to permit it

to be filed. 57 Nev. 1, 49 P. (2d) 358.

1. The affidavit in support of the present motion sets forth why the purported bill of

exceptions, ordered stricken, was not filed as provided by law. No fact, or purported fact, is

set forth in said affidavit tending to excuse appellant for not filing the judgment roll within

the time fixed by law. An appeal may be taken on the judgment roll alone, or upon both the

judgment roll and the bill of exceptions, or upon such other record as may be appropriate in a


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particular case, as provided by chapter 90, Stats. 1935.

2-4. We do not understand just why we should now permit the filing of the judgment roll

because of reasons excusing appellant, if such be the case, for not properly preparing its bill

of exceptions. In fact, no showing of excusable neglect having been made for failure to file

the judgment roll in time, it is clear that the motion must be denied. Had there been excusable

neglect for not filing the judgment roll, that should have been urged, on due notice, supportedby a proper showing, at the time the motion to strike the bill of exceptions was made.

Other questions are discussed, but it is not necessary to consider them.

For the reason given, the motion is denied.


On Appellant's Motion for an Order Extending the Time in Which to File

and Serve a Bill of Exceptions, and a Counter Motion of

Respondent to Dismiss the Appeal.

February 4, 1936. 54 P. (2d) 273.

1. Exceptions, Bill Of.

Clerk need not make notation offiling to constitute filing of bill of exceptions, since all

that litigant can do in filing document is to deposit it with proper official and pay or

tender fee therefor.


Supreme court is reluctant to dispose of case except upon merits.


Spirit of law is liberal in matter of amending record on appeal (Stats. 1935, c. 90, sec.45).


Where plaintiff had deposited bill of exceptions in clerk's office, had served copy upon

defendant's counsel, and bill had been duly settled by trial judge, but it did not appear

from bill that it had been filed in trial court, plaintiffheldentitled to have bill remanded

to clerk for amendment to show filing (Stats. 1935, c. 90, sec. 45).

Order in accordance with opinion.


Appellant contends that if a document is presented to the clerk for filing, and the fees, if

demanded, are paid, the document is by that act filed, whether it is marked filed or not; that

the act of placing the file number or mark upon the instrument, the placing of it in the proper

file, or doing whatever else that may be necessary devolves upon the clerk, who is elected and

paid to perform the duties of his office, and he is presumed to do this duty; that when a

person desiring to have a document filed has done all he can do to accomplish that purpose,


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and the officer actually accepts the document for filing, it would be contrary to public policy

to hold that the document is not filed. Golden v. McKim, 45 Nev. 350, 204 P. 602.

From the date of the decision by Bigelow, J., in 21 1HY3


Nev. 184, 27 P. 376, 1018, to the last expression of this court in In re McGregor, 46 Nev.

407, 48 P. (2d) 418, this court has, so far as I can learn, always held to the proposition that

cases must be decided on their merits when possible, unless prevented by mandatory statutes

or mandatory rules of court. And this court has stated that it is indulgent in setting aside such

defaults. Guardia v. Guardia, 48 Nev. 230, 229 P. 386.

George J. Kenny, andH. R. Cooke, for Respondent:

It is submitted that this court would not consider making any order extending time for anact to be done, not in this court, but in a separate tribunal, viz, the trial court. Particularly so

where the proposed extension would (as here) have to relate back to April 1, 1935, and prior

to this court having any jurisdiction whatsoever over the case. The default for which relief is

sought is appellant's failure to file its bill of exceptions with the clerk of the trial court.

Joudas v. Squire, 50 Nev. 42, 249 P. 1068.

The so-called bill, filed in this court, never having been filed in the trial court, of course

never became a part of the record of that court. To allow appellant's application would be the

making of a new record; would be making up a record on appeal in this court, instead of in

the trial court. This court has repeatedly held that the bill of exceptions must be made up,

perfected, filed, etc., in the trial court, and that this court has no power to permit the making

up of such record, or entertain the same, when it was not made up, filed, etc., as required bylaw, in the trial court. Water Company v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079;

Caldwell v. Wedekind M. Co., 50 Nev. 366, 261 P. 652; Lamb v. Lamb, 55 Nev. 437, 38 P.

(2d) 659; Capurro v. Dist. Court, 54 Nev. 371, 17 P. (2d) 695; Quinn v. Quinn, 53 Nev. 68,

292 P. 620.

It is not the duty of the clerk of the court below, or of the trial judge, but it is the duty of

appellant to see WRLWWKDWKLVELOOLVVHDVRQDEO\DQGSURSHUO\ILOHGLQWKHWULDOFRXUW


to it that his bill is seasonably and properly filed in the trial court. 4 C. J. pp. 298, 299, 302,

secs. 1913, 1915, nn. 64, 65, 71, 72, 73.

OPINION



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This the third time this matter has been before us; the first time on a motion to strike the

bill of exceptions [49 P. (2d) 358], the second time on a motion for an order granting leave to

appellant to file a copy of the judgment roll [50 P. (2d) 944], and now on motion of appellant

for an order extending the time in which to file and serve a bill of exceptions, and a counter

motion of respondent to dismiss the appeal.

Counsel for appellant has filed in this matter, in support of this application, an affidavitand a supplemental affidavit, from which it appears that the tendered bill of exceptions was,

on April 15, 1935, deposited in the office of the clerk of the trial court, and immediately

thereafter a copy was served upon counsel for the respondent. It appears from a certificate of

the trial judge that the tendered bill of exceptions was duly settled by the trial judge on April

22, 1935, but it does not appear from the bill of exceptions itself that it was filed in the lower

court. This failure may be due to an oversight on the part of the clerk of the trial court. If this

be true, an opportunity should be given to rectify the oversight.

1. To constitute filing it is not necessary that the clerk make the notation of filing, for all

that a litigant can do in the matter of filing a document is to deposit it with the proper official

and pay or tender the fee therefor, if there be any. Hook v. Fenner, 18 Colo. 283, 32 P. 614,

36 Am. St. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 P. 697; Wilkinson v. Elliott, 43 Kan. 590,23 P. 614, 19 Am. St. Rep.158; President, etc., Manhattan &RY/DLPEHHU1


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On Appellant's Motion for an Order Vacating an Order Striking the

Bill of Exceptions, and Remanding the Bill of Exceptions to

Clerk of Trial Court for Amendment.

April 29, 1936. 56 P. (2d) 1211.


Where it did not appear from bill of exceptions that it had EHHQILOHGLQWULDOFRXUWEXWDIILGDYLWRIDSSHOODQWVFRXQVHOVHWIRUWKWKDWELOOZDVGHSRVLWHGZLWKFOHUNRIWULDOFRXUWIRUILOLQJDQGWKDWDWWLPHRIVXFKGHSRVLWFOHUNZDVSDLGIHHIRUILOLQJWKHUHRIDSSHOODQWKHOGHQWLWOHGWRKDYHELOOUHWXUQHGWRFOHUNIRUDPHQGPHQWLQFRPSOLDQFHZLWKIDFWV


been filed in trial court,but affidavit of appellant's counsel set forth that bill was

deposited with clerk of trial court for filing, and that at time of such deposit clerk was

paid fee for filing thereof, appellant heldentitled to have bill returned to clerk for

amendment in compliance with facts.

Motions granted.

OPINION


Appellant has applied for an order vacating the order heretofore made herein striking the

bill of exceptions. It has also moved that the bill of exceptions be remanded to the clerk of the

trial court for amendment. Both of the motions are in pursuance of our opinion and order

made herein on February 4, 1936. 54 P. (2d) 273.

Both motions are supported by the affidavit of counsel for appellant, wherein he states that

the bill of exceptions was deposited with the clerk of the trial court for filing, and that at the

time of such deposit he paid the clerk the fee for the filing thereof.

In the opinion above mentioned we pointed out what is necessary to constitute a filing of a

bill of exceptions with the clerk of a trial court. The showing made on this hearing is ample to

justify orders favorable to appellant.No counter showing has been made by respondent. In fact, no appearance was made by

respondent when the notice of motion was called up for hearing.

Good cause appearing therefor, it is ordered that the order heretofore made herein, striking

the bill of exceptions, be, and the same is hereby, vacated. It is further ordered that the clerk

of this court forthwith return to the clerk of the lower court said bill of exceptions for

amendment in compliance with the facts, and that the clerk of said lower court return the

same to the clerk of this court without delay after the amendment is made, if any.


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On Second Motion to Strike Bill of Exceptions

July 7, 1936. 56 P. (2d) 18.


Motion to strike bill of exceptions, on ground it had not been filed within twenty days,

as provided by statute where appeal is from final judgment, was granted where there was

clear conflict between affidavits of parties as to whether respondent had waived time

requirement of statute (Comp. Laws, secs. 9392, 9398).


On motion by respondent to strike bill of exceptions, on ground it had not been filed

within twenty days, as provided by statute where appeal is from final judgment, burdenwas on appellant to show respondent waived time requirement (Comp. Laws, secs. 9392,

9398).


Where there was no judgment roll on file, and bill of exceptions had been struck

because filed too late, judgment was affirmed since there was nothing supreme court

could consider (Comp. Laws, secs. 9392, 9398).

Motion granted and judgment affirmed.

OPINION


This matter is again before us on motion of respondent to strike the bill of exceptions. In

an opinion heretofore filed (57 Nev. 12, 56 P.(2d) 1211), we ordered that the bill of

exceptions be remanded to the trial court for amendment and return to the clerk of this court.

Pursuant to that order, it was endorsed as filed by the clerk of the trial court as of April 15,

1935. The motion now under consideration is based upon the ground that the final judgment

appealed from was entered on March 11, 1935, whereas the bill of exceptions was not filed

until after the time allowed therefor had expired.

Section 9398 N. C. L. fixes the time within which a bill of exceptions may be filed wherethe appeal is from a final judgment, as in this case, at within twenty (20) days. The final

judgment having been rendered on 0DUFKDQGWKHELOORIH[FHSWLRQVQRWKDYLQJEHHQILOHGXQWLO$SULOLWLVFOHDUWKDWLWZDVQRWILOHGZLWKLQWZHQW\GD\VDIWHUWKH

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12/359

March 11, 1935, and the bill of exceptions not having been filed until April 15, 1935, it is

clear that it was not filed within twenty days after the entry of the final judgment.

Section 9392 N. C. L. expressly provides that if a party shall omit or fail to serve and file

his bill of exceptions within the time limited by law, he shall be deemed to have waived his

right thereto. We so held in Nellis v. Johnson et al., 57 Nev. 17, 53 P. (2d) 1192.

Counsel for appellant does not contend that a failure to file a bill of exceptions within the

time fixed by law, if there be no order of court or stipulation of the parties extending the time,

does not constitute a waiver, but contends there was a stipulation extending the time, and has

offered his affidavit which he claims shows that there was a stipulation between himself and

G. J. Kenny, Esq., the attorney for the respondent in the court below, and one of its attorneys

here, waiving the statutory requirement. Though counsel for appellant relies on three separate

affidavits in support of his contention, we will refer to the one of November 12, 1935, only,

since the other two restate the same matter. The affidavit mentioned states that Mr. Kenny

said to him: * * * You prepare your bill of exceptions and your brief and give me a copy of

each; that I will then prepare my answering brief, and give you a copy of my brief; that you in

turn will then prepare and give me a copy of your reply brief; that then we will send the bill ofexceptions, and the briefs all together to the supreme court and let the supreme court pass on

the legal questions presented in these briefs without oral argument.

In opposition to the above affidavit respondent offered in evidence the counter affidavit of

G. J. Kenny, Esq., which states, in substance, that as attorney for the respondent in the lower

court, he discussed with the attorney for appellant the possibility of presenting the case to the

supreme court upon a statement of facts; that he told attorney for appellant, before judgmentZDVUHQGHUHGWKDWLQFDVHRIDQDSSHDO+5&RRNH(VTZRXOGEHDVVRFLDWHGZLWKKLPLQSUHVHQWLQJWKHPDWWHUWRWKHVXSUHPHFRXUWDQGWKDWDIILDQWZRXOGEHJXLGHGLQDOO

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was rendered, that in case of an appeal H. R. Cooke, Esq., would be associated with him in

presenting the matter to the supreme court, and that affiant would be guided, in all matters

concerning the appeal, by Mr. Cooke; that following the rendition of the judgment in the

lower court, affiant discussed with Mr. Cooke the matter of presenting the case on appeal on a

statement of facts, and was informed that he, said Cooke, was not in favor of such a course,

and thereupon affiant promptly notified the attorney for appellant accordingly, in the latter

part of March 1935; that he then and there stated to counsel for appellant that the wish of Mr.

Cooke was binding upon him in the matter.From the affidavit of counsel for appellant, it appears that Mr. Kenny suggested that he

prepare your bill of exceptions. If we give this language the usual interpretation, it could

only mean that Mr. Kenny suggested the embodying in the record of a bill of exceptions, as

contemplated by statute. This was not done. If we accept Mr. Kenny's version, there was talk

about submitting the matter to this court upon an agreed statement of facts, but that the

attorney for appellant was simultaneously informed that Mr. Cooke would be associated with


13/359

Mr. Kenny, in case of an appeal, and that Mr. Cooke's wishes in the matter would control.

1, 2. There is a clear conflict between the affidavits. Mr. Kenny states that he informed

counsel for appellant that he could not bind the respondent in the matter, but that Mr. Cooke's

word would control, and that Mr. Cooke would not consent to any stipulation. The burden is

upon appellant to show a waiver. We do not think it is shown, hence the motion to strike the

bill of exceptions should be granted. It is so ordered.3. There being no judgment roll in the case on file, there remains nothing which the court

can consider. In this situation the judgment appealed from should be affirmed.

It is so ordered.

____________

57 Nev. 17, 17 (1936) Nellis v. Johnson Et Al.

NELLIS v. JOHNSON Et Al.

No. 3129

ON MOTION TO REMAND BILL OF EXCEPTIONS

February 4, 1936. 53 P. (2d) 1192.

1. Appeal and Error.Respondent who failed to file timely objections to allowance and settlement of bill of exceptions waived

objections thereto, notwithstanding that he failed to object because of absence of his attorney (Stats. 1935,c. 90, sec. 36).

Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.

Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and

S. E. Calvin claimed liens. From the judgment, the defendants appeal. On motion to remand

bill of exceptions for amendment and correction. Motion denied.

T. A. Wells andLouis Cohen, for Appellants.

J. R. Lewis, for Respondent.

OPINION


Respondent has moved the court to remand the bill of exceptions to the trial court for

amendment and correction.


14/359

It is the contention of respondent, supported by affidavit, that the testimony of three certain

witnesses, as set forth in the bill of exceptions, is contrary to the testimony of each of said

witnesses given upon the trial; that the testimony of two other witnesses as set forth in the bill

of exceptions is incomplete and does not set forth the true facts as testified to by the

witnesses.

In support of the motion, counsel for the respondent has filed an affidavit wherein it isstated that on the WKRI-XO\FRXQVHOIRUDSSHOODQWOHIWLQKLVRIILFHKLVSURSRVHGELOORIH[FHSWLRQVWKDWDWWKDWWLPHDIILDQWZDVDEVHQWIURP/DV9HJDV1HYDGDZKHUHKLVRIILFHLVPDLQWDLQHGDQGGLGQRWUHWXUQXQWLODIWHUWKHWLPHKDGHODSVHGLQZKLFKWRILOHREMHFWLRQVWRWKHDOORZDQFHDQGVHWWOHPHQWRIWKHELOORIH[FHSWLRQVRUWRVXJJHVW

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12th of July 1935, counsel for appellant left in his office his proposed bill of exceptions; that

at that time affiant was absent from Las Vegas, Nevada, where his office is maintained, anddid not return until after the time had elapsed in which to file objections to the allowance and

settlement of the bill of exceptions, or to suggest amendments thereto. It is further stated in

said affidavit that the trial judge was of the opinion that he was without authority to change or

correct said proposed bill of exceptions, in view of the fact that no objections were made or

amendments proposed by respondent to said proposed bill of exceptions, and that it was his

duty to sign said bill of exceptions as proposed.

No counter affidavit was filed by appellant.

Whether the application, if granted, would result in an amendment and correction of the

bill of exceptions, or a new bill of exceptions, should the trial court conform to the views of

respondent, we need not determine.Section 36, chapter 90 of Statutes of 1935, provides: If a party shall omit or fail to serve

and file his bill of exceptions within the time limited he shall be deemed to have waived his

right thereto, and if a party shall omit to make objections as required to such bill of

exceptions within the time limited he shall be deemed to have waived his right thereto.

This section is clear, and, as we view it, no discretion is vested in the court. Having failed

to make objections to the bill of exceptions as served, though as a result of the absence of

respondent's attorney, respondent must be held to have waived all objections thereto, and to

be foreclosed from objecting to it thereafter. Sutherland v. Round et al. (C. C. A.), 57 F. 467.

The motion is denied.

On the Merits

May 1, 1936. 57 P. (2d) 392.

1. Mechanic's Liens.

Where statute relating to filing of labor lien claims is XQFHUWDLQLWPXVWUHFHLYHD

OLEHUDOFRQVWUXFWLRQ&RPS


15/359


uncertain, it must receive a liberal construction (Comp. Laws, sec. 3739).

2. Mechanics' Liens.Statute heldto permit filing of labor claims within ninety days after performance of

labor (Comp. Laws, sec. 3739).

3. Mechanics' Liens.

Trial court in suit to foreclose labor lien claims has wide discretion in permitting

amendments to claims to conform to proof (Comp. Laws, sec. 3739).


Motion to amend claim of lien filed against one group of mining claims so as to cover

all mining claims of defendant in another group after defendant had offered evidence thatwork had been performed by claimants on certain claims of other group should have been

denied since motion was not to conform pleadings to proof (Comp. Laws, sec. 3739).


In suit to foreclose labor liens, denial of application of party claiming a one-half

undivided interest in property subject to claims under an assignment prior to filing of

original lien claims to be made a party defendant to suit heldreversible error (Comp.

Laws, sec. 8556).


Whether person seeking to be made a party defendant in suit to foreclose labor liens onproperty in which he claimed an undivided one-half interest by assignment prior to filing

original labor claims was not an innocent purchaser because title was obtained through a

quitclaim deed could not be determined on appeal in absence of record showing character

of deed (Comp. Laws, sec. 8556).


Recovery could not be had under labor lien claim in absence of evidence that claim was

unpaid (Comp. Laws, sec.3739).

8. Costs.Where transcript on appeal contained many carbon copies, some of which were very

poor, successful appellant was limited in recovery of costs, since typewritten transcripts

on appeal must be of first impression, clearly and legibly done (Rules of Supreme Court,

rule 4, par. 3).

Appeal from Eighth Judicial District Court, Clark County, Wm. E. Orr, Judge.


16/359

Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and

S. E. Calvin claimed liens. From an adverse judgment, defendants appeal. Reversed and new

trial granted.


T. A. Wells, andLouis Cohen, for Appellant:

Section 3739 N. C. L. allows only the person furnishing material ninety days in which to

file statement of and notice of lien claim, all others mentioned not more than sixty days. The

laboring man performing labor certainly cannot be classed with or as a materialman

furnishing material. The laboring man is more properly affiliated with the subcontractor.

Hihn-Hamond Lumb. Co. v. Elson, 154 P. 12; Rankin v. Rankin, 122 P.1120.

If the laborer cannot be classified with the subcontractor as specified in the above section,

then it will be necessary and proper to go back to the Statute of 1917, p. 63, being section2217 Rev. Laws 1919, which reads: and not later than fifty days after such completion of

contract or the delivery of material or performance of labor by him, file for record with the

county recorder, etc. Section 3739 N. C. L. was an act to amend the statute of 1917, and only

adds to the provisions thereof to the extent of the conflict, repugnancy or inconsistency

between the wording of the two statutes. 59 C. J. pp. 912 to 916, secs. 515 to 517, and cases

cited. And a repeal is effected only to the extent of the repugnancy, etc. State v. Donnelly, 20

Nev. 214, 19 P. 680; State v. Daugherty, 47 Nev. 415, 224 P. 615; In re Walley, 11 Nev. 260.

The amendment of the statute in 1925 (p.264) contains no repealing clause in the act or in the

title. Courts do not favor repeal by implication. 59 C. J. 905, sec. 510, n. 22; State v. Scott, 52

Nev. 232, 286 P. 119; Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080; State v.

Daugherty, supra; State v. Ducker, 35 Nev. 214, 127 P. 990.The court erred in allowing amendments to the lien claims to include the Spokane claims,

entirely different land. Plaintiff's and lien claimant's motion to amend their lien statements

were insufficient and without proper showing, and were not for the purpose of making the

amendment conform to the proof, but for PDNLQJDPRUHVSHFLILFGHVFULSWLRQRIWKHPLQLQJ

FODLPVXSRQZKLFKOLHQZDVFODLPHG


making a more specific description of the mining claims upon which lien was claimed.No testimony was offered or introduced by plaintiff or lien claimants to show that they or

any of them rendered services or performed labor upon or in the mill mentioned in plaintiff's

complaint and the statement of said lien claims. 40 C. J. 462, sec. 658.

The court erred in refusing and failing to order T. A. Wells to be made a party defendant in

the action, after it was shown that said Wells was a purchaser of an undivided one-half

interest in the Spokane mining claims and at a time when no lien claims were made or filed of

record, including said claims, since the inclusion of said Spokane claims prejudiced the


17/359

interest of said Wells. Sections 3739 and 8565 N. C. L.; Robinson v. Kind, 23 Nev. 330, 47

P. 1, 977; Bliss v. Grayson, 24 Nev. 422, 56 P. 231; Rutherford v. Union Land and Cattle

Co., 47 Nev. 22, 213 P. 1045.

The testimony of respondent Cale fails to state that the money was due or owing or had not

been paid.

There was no evidence adduced at the trial that the transfer of the half interest to Mr.Wells was by quitclaim deed.

J. R. Lewis, for Respondents:

While section 3739 N. C. L. is not as explicit as it might be, it is absurd to contend that the

legislature intended to discriminate between laborers, and give a person who furnished

material and also performed labor ninety days in which to file his lien claim, while a laborer

who did not furnish material in addition to his labor performed was to come under the old

statute and have but fifty days in which to file his claim of lien.

It is true that when this section was amended by the legislature in 1925 no repeal clause

was attached thereto. This, however, is immaterial, as the act speaks for itself. 25 R. C. L.secs. 167, 168, 171, pp. 914, 917, 922; State Mutual Ins. Co. v. Clevenger, 87 P.


583; First Kent Comm., 462; Huston v. Scott, 94 P. 512; Mesher v. Osburn, 134 P. 1092.

The same definiteness and particularity is not required in a description of the location of a

mine or mining claim that is required of a building in a town. It is sufficient if a description of

the property to be charged with the lien may be identified, even where a mistake has been

made in the legal description of the property in the lien statement. Riverside Fixture Co. v.Quigley, 35 Nev. 17, 126 P. 545.

The finding of fact made by the court is that the mill upon which plaintiff worked was

known as the Charles Johnson mill and was located in the Searchlight district and same was

the only mill belonging to the said defendant, Charles Johnson, in the said mining district.

The mill sufficiently identifies the property upon which the respondents severally claimed a

lien. Teredinick v. Red Cloud Con. Min. Co. (Cal.), 13 P. 152; McIntyre v. Montana Gold

Mountain Mg. Co. (Mont.), 108 P. 353; Thompson v. Wise Boy Min. & Mill Co. et al., 74 P.

958.

The mechanic's lien law is to be liberally construed so as to give lien claimants the benefits

intended by the legislature. Shryme v. Occidental Mill & Mining Co., 8 Nev. 221. See, also,Salt Lake Hardware Co. v. Chainman Mng. & Elect. Co., 137 Fed. 632; Maynard v. Ivey, 21

Nev. 241, 29 P. 1090; Lamb v. Goldfield Lucky Boy Mng. Co., 37 Nev. 9, 138 P. 902; Luigi

Ferro v. Bargo M. & M. Co., 37 Nev. 139, 140 P. 527; Hunter and Co. v. Truckee Lodge No.

14, 14 Nev. 24; 18 R. C. L. 943, secs. 79, 80; Tabor v. Goss & Phillips, 18 P. 535; Harrisburg

Lumber Co. v. Washburn, 44 P. 392; Kezartee v. Marks, 16 P. 411; Tibbetts v. Moore, 23

Cal. 208.

The application of respondents to amend the statements of lien was made in due time and


18/359

for reasons and upon grounds not prohibited by the statute, but specifically provided for when

there was a variance between the lien and the proof, and that the variance should be GHHPHGLPPDWHULDOXQOHVVWKHUHVXOWRIIUDXGRULQWHQWLRQDOO\PDGHRUKDVPLVOHGWKHDGYHUVH

SDUW\WRKLVSUHMXGLFH


deemed immaterial unless the result of fraud or intentionally made, or has misled the adverse

party to his prejudice.

Mr. Wells is not an innocent purchaser for value in any sense of the word. He derived his

title on the morning of the trial of the action, by quitclaim deed from appellant, to one-half

interest in the six mining claims composing the group. Oliver et al. v. Piatt (U. S.), 11 L. Ed.

332; May v. LeClaire et al., 20 L. Ed. 50; Dickerson v. Colgrove et al., 25 L. Ed. 618.

OPINION


This is an appeal from a judgment and decree foreclosing lien claims, and from an order

denying a motion for a new trial.

1, 2. The first point made is that the lien claims were not filed for record within the time

prescribed by law. The suit is to foreclose three lien claims for work and labor performed

upon mining claims. The lien claims show that each claimant ceased to work not later than

November 4, 1933, and that each lien claim was filed January 6, 1934.

Section 3739 N. C. L. relative to the filing of lien claims reads:Every person claiming the benefit of this chapter shall, not earlier than ten days after the

completion of his contract, or the delivery of material by him, or the performance of his labor,

as the case may be, and in the case of every subcontractor not later than fifty days; in the case

of every original contractor, not later than sixty days, and in the case of every person

furnishing materials not later than ninety days, after such completion of his contract or the

delivery of material or performance of labor by him, file for record with the county recorder

of the county where the property or some part thereof is situated, a claim.


Appellant asserts that labor lien claimants must file their claim for record not later than

fifty days after performing their labor, contending that the amendment of 1917 (Stats. 1917,

chap. 41), which limits the time for the filing of labor claims to fifty days, controls.

In 1925 the section just referred to was again amended (Stats. 1925, chap. 169), the act

reading that the section in question is hereby amended so as to read as follows, the

amendment being section 3739 N. C. L., above quoted.


19/359

We held in City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317, that an amending act which

provides that the previous act is hereby amended so as to read as follows, operates to repeal

any provision of the amended act which is not embraced in the amending act. Such is

unquestionably the correct rule. Continental Supply Co. v. White, 92 Mont. 254, 12 P. (2d)

569; 36 Cyc. 1083.

It is also contended that if the act of 1925 controls, the only persons who are entitled toninety days in which to file lien claims are those furnishing materials.

That the legislature of the state has been solicitous of the welfare of the laborer, so far as

protecting his claim for services is concerned, cannot be doubted. The lien law not only gives

him a right to a lien, but gives him a preferred lien of the first rank (section 3745 N. C. L.);

but, unfortunately, the amendatory act of 1925, relative to the time within which such a lien

claim may be filed, is not as clear as it should be. It is evident, however, that it does not

contemplate the filing of a lien claim for labor within fifty days after the completion of the

labor. The lien law is clear as to certain things; and where it is uncertain it must receive a

liberal construction. Skyrme v. Occidental M. & M. Co., 8 Nev. 219, 221. And, as said in

Maynard v. Johnson (on rehearing), 2 Nev. 25, at page 33:

Where the words of a statute are obscure or doubtful, the intention of the legislature is tobe resorted to in order to discover their meaning. A thing within the LQWHQWLRQLVDVPXFKZLWKLQWKHVWDWXWHDVLILWZHUHZLWKLQWKHOHWWHUDQGDWKLQJZLWKLQWKHOHWWHULVQRWZLWKLQ

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intention is as much within the statute as if it were within the letter; and a thing within the

letter is not within the statute if contrary to the intention of it.

In State v. Ross, 20 Nev. 61, 14 P. 827, it was held, in construing a statute, that the intentwill prevail over the literal sense. To the same effect, State ex rel. v. Sixth Judicial District

Court, 53 Nev. 343, 1 P. (2d) 105.

From a reading of the first part of the section, down to the semicolon, it will indisputedly

appear that it contemplates that persons who may claim a benefit under the lien act are

classified either as contractor, subcontractor, materialman, or laborer. This much is certain. It

is furthermore clear from that portion of the section that neither can file a lien claim within a

stated time, but that a subcontractor must file his claim not later than fifty days from the

completion of his contract. Under the act amended (1917 act), all claimants had to file their

claims within fifty days; but under the amendment of 1925, it is clear that the original

contractor has sixty days within which to file, and the materialmen have ninety days. It seemsthe sole purpose of the amendment of 1925 was to give certain claimants longer time within

which to file than was given by the 1917 act. Since it is clear the amendment of 1925

contemplates the filing of claims for labor, the most logical and reasonable construction of

the section is that such claimants have ninety days, in view of the fact that the words or

performance of labor come after the statement of the ninety-day limitation. It is clear it is not

contemplated labor claimants must file within fifty or sixty days, and the only other period

mentioned within which a claim may be filed being ninety days, we can reach no other


20/359

conclusion than that it was the intention of the legislature that labor claims may be filed

within ninety days.

3, 4. It appears from the record that at the time the work in question was done the

defendant Johnson owned the Eureka No. 1, Eureka No. 2, and Eureka No. 3, the Spokane

No. 1, Spokane No. 2, and Spokane No. 3 lode PLQLQJFODLPVDQGWKDWWKHWZRVHWVRI

FODLPVZHUHORFDWHGQRWIDUGLVWDQWIURPHDFKRWKHU


mining claims, and that the two sets of claims were located not far distant from each other.

Claimant filed their lien claims against the Eureka group. Upon the trial defendant offered

evidence showing that the work performed by the plaintiffs was upon certain claims of the

Spokane group. Thereupon the plaintiff moved to amend his claim of lien so as to cover the

Spokane claims. The court made an order granting the motion, over the objection of

defendant. This ruling is assigned as error.Section 3739 N. C. L. reads in part:

Upon the trial of any action or suit to foreclose such lien no variance between the lien and

the proof shall defeat the lien or be deemed material unless the same shall result from fraud or

be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases

of immaterial variance the claim of lien may be amended, by amendment duly recorded, to

conform to the proof.

This provision is very broad, and there are no facts or circumstances in the record tending

to show that the variance resulted from fraud, or was intentional, or that the defendant was

misled to his prejudice. This provision relative to amending a lien claim was first

incorporated in our lien act in 1911 (Stats. 1911, chap. 160), but notwithstanding this fact,

this court, in the case of Riverside Fixture Co. v. Quigley, 35 Nev. 17, 126 P. 545, in whichthe rights of claimant evidently accrued prior to the 1911 amendment, held that where the

rights of third parties had not intervened, an amendment would be allowed. In that case the

court reviewed the authorities at some length. In the instant case there is statutory authority

for the allowance of an amendment to conform to the proof. Courts have wide discretion in

such matters. In this connection, it is contended by appellant that the motion to amend was

not to conform to the proof. This contention seems well founded.

5. After the order allowing the amendment of the lien claims in this case, and before

judgment, T. A.


Wells filed a sworn petition reciting that prior to the filing of the original lien claims in

question he became the bona fide purchaser, for value, of an undivided half interest of the

Spokane claims, from defendant Johnson, and asked to be made a party defendant to the

action. This application was denied. This ruling is also assigned as error.


21/359

Section 8556 N. C. L. reads:

Any person may be made a defendant, who has or claims an interest in the controversy

adverse to the plaintiff, or who is a necessary party to a complete determination or settlement

of the question involved therein.

This court in Robinson v. Kind, 23 Nev. 330, 47 P. 1, 977, held that where a party has a

direct interest in the subject matter of the suit, he is a necessary party.It appears from the incontradicted evidence in the record that the defendant Johnson, prior

to the filing of the lien claims in question, for a valuable consideration, conveyed an

undivided half interest in the Spokane claims to Wells. From this it appears that Wells has a

direct interest in the subject matter of the suit. We think the court committed reversible error,

for which the judgment and order should be reversed.

It is not contended on this appeal that the half interest retained by Johnson is not subject to

a lien claim simply because of the conveyance of an interest.

It is said in the brief of appellant that lien claimants have not attempted to file lien claims

against the mill, and do not allege that they worked in the mill. We do not quite understand

the purpose of this statement. As to the right of persons erecting improvements upon public

land of the United States, we refer to Lindley on Mines, sec. 409; Treadway v. Sharon, 7 Nev.37, 38; Arnold v. Goldfield Third Chance Mining Co., 32 Nev. 447-455, 109 P. 718.

6. Counsel for respondent states in his brief that Wells is not an innocent purchaser for

value, for the reason, as he says, that he obtained his title through a quitclaim deed. To

support his contention, he cites the IROORZLQJFDVHV2OLYHUY3LDWW+RZ/(G'LFNHUVRQY&ROJURYH862WWR/(G


following cases: Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Dickerson v. Colgrove, 100 U. S.(10 Otto) 578, 25 L. Ed. 618.

We do not consider it necessary to determine this question, if for no other reason than that

the record does not show the character of the deed. However, we direct counsel's attention to

the case of Moelle v. Sherwood, 148 U. S. 21, 13 S. Ct. 426, 37 L. Ed. 350.

7. It is also contended by appellant that the evidence does not show that the claim of Cale

was owing and unpaid, hence the judgment as to this claim should be reversed. An

examination of the testimony of this claimant does not show that the claim was unpaid, hence

the judgment as to it must be reversed.

We have substantially disposed of every question raised on this appeal. We may say that

the evidence in the record is very skimpy, due, no doubt, to an unfortunate circumstanceheretofore considered in this case. 57 Nev. 53 P. (2d) 1192.

8. Paragraph 3, rule IV, of this court, provides that when transcripts of the record in any

action are typewritten, they must be of the first impression, clearly and legibly done, etc. The

transcript of the record in this case contains many carbon copies, some of which are very

poor. We feel that appellant should be limited in the matter of the recovery of costs herein.

It is ordered that the judgment and order appealed from be reversed, and that a new trial be

granted, appellant to recover two-thirds of his expenses in preparing the transcript on appeal.


22/359

____________

57 Nev. 29, 29 (1936) Minden Butter Mfg. Co. v. District Court

MINDEN BUTTER MFG. CO. v. FIRST JUDICIAL DISTRICT COURT IN

AND FOR DOUGLAS COUNTY Et Al.

No. 3141

May 1, 1936. 56 P. (2d) 1209.

1. Justices of the Peace.Under statute authorizing deposit of money in place of undertaking on appeal from justice's court, deposit

of $100 at time of filing undertaking with one surety on appeal from justice's court wherein no stay ofproceedings was claimed heldto confer jurisdiction upon district court (Comp. Laws, secs. 9339, 9363).

2. Statutes.Court presumed that section of statute taken from code of another state was adopted by legislature with

construction given it by supreme court of other state (Comp. Laws, sec. 9363).

3. Justices of the Peace.Failure to give written notice of filing of undertaking or of deposit made in lieu of undertaking on appeal

from justice's court heldnot to defeat jurisdiction of district court, since notice was not required where

deposit was made (Comp. Laws, secs. 9339, 9363).

Original proceeding in certiorari by the Minden Butter Manufacturing Company and

another against the First Judicial District Court, in and for Douglas County, Hon. Clark J.Guild, presiding, and another. Writ dismissed.

Morley Griswoldand George L. Vargas, for Petitioners:

Your petitioners contend that the First judicial district court, the respondent herein, never

acquired jurisdiction of the civil action of Carl Syll v. Minden Butter Manufacturing

Company and W. H. Pearson, on appeal, basing their contention upon two major

propositions, namely:

(a) That no legal bond was given, as required by section 9339 N. C. L. as constituting an

essential step to clothe the district court with jurisdiction, and that that part of the section

which provides what shall be the equivalent of the undertaking required applies in a FDVHZKHUHQRVWD\RISURFHHGLQJVLVDVNHGIRUVXFKDVWKHFDVHDWEDUDVLVFOHDUO\VKRZQLQ

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23/359

case where no stay of proceedings is asked for, such as the case at bar, as is clearly shown in

the decision of this court in Floyd v. District Court, 36 Nev. 349, 135 P. 922. Section 9339 is

clearly inconsistent with section 9363 N. C. L., and in such a case the special statute, or the

one dealing with the common subject matter in a minute way, will prevail over the general

statute. 59 C. J. 1056; Oklahoma Natural Gas Co. v. McFarland, 288 P. 471; United States

v. Lapp, 244 Fed. 377. This court, in the Floyd case, supra, also refers to section 3679Cutting's Comp. Laws (same as section 9339 N. C. L.) as being the applicable statute at the

time this appeal was taken. Consequently, it appears that under the Nevada law, in order for

an appeal to be perfected, or the district court to acquire jurisdiction, where a deposit, instead

of an undertaking with two sureties is used, it must be a deposit in the amount of the

judgment, including all costs. The California case of Laws v. Troutt, 147 Cal. 172, 81 P. 401,

is not in point, for the reason that the California courts have taken a different view of their

section, which is similar to section 9339 N. C. L., and have held that that portion of the

section which provides that a deposit of the amount of the judgment appealed from, including

all costs, applies only where a stay of proceedings is claimed. Pacific Window Glass Co. v.

Smith (Cal. App.), 97 P. 899. Consequently, under their interpretation, there is no specific

statute prescribing the requirement for a money deposit in lieu of the undertaking, in a casewhere no stay of proceedings is claimed, and there is then no applicable statute left but the

general statute, which corresponds to our section 9363 N. C. L.

(b) That no written notice of the filing of an undertaking on appeal from the justice's court

was ever given to your petitioners, or to their attorneys, and that this constitutes failure to take

an essential step necessary to give the district court jurisdiction. Section 9339 N. C. L.; State

v. Eighth Judicial District Court, 54 Nev. 404, 20 P. (2d) 655.


Geo A. Montrose, for Respondents:

The courts have construed the sections concerned many times. It will be noted that section

968 of the Code of Civil Procedure of the State of California is almost identical with section

9339 of the Nevada code, and section 967 of the California code is identical with section

9363 N. C. L. Laws v. Troutt, 147 Cal. 172, 81 P. 401; Floyd v. Sixth Judicial District Court,

36 Nev. 349, 135 P. 922; State v. Brown, 30 Nev. 495, 98 P. 871.

Where no stay of proceedings is asked, section 9339 N. C. L. in no place provides that

notice should be given the defendant of the filing of a bond. The very fact that the notice of

appeal is filed with the justice of the peace is, in itself, notice that a bond has been given, asthe justice of the peace would not be at liberty to file a notice of appeal if it were not

accompanied by a bond as the section provides. Alt v. California Fig Syrup Co., 18 Nev. 423,

4 P. 743; Floyd v. Sixth Judicial District Court, supra.

The statute in relation to the giving of notice was written to cover surety bonds, a promise

to pay, but not a bond where the good, solid money of our country was deposited.

OPINION


24/359

By the Court, Ducker, C. J.:

This an original proceeding in certiorari. The petition and supporting affidavits disclose

that petitioners were defendants in a civil action in the justice's court of East Fork township,

State of Nevada, in which judgment was rendered in their favor. Plaintiff therein on the 8thday of August 1935, filed in said justice's court, and served on petitioners, a notice of appeal

to the district court of the First judicial district of said county. At the same time plaintiff also

filed in said justice's court a written document purporting to be an undertaking on appeal,

with one August Syll being the sole surety thereon. This undertaking recites as follows: $VVXUHW\RIVDLGXQGHUWDNLQJ,KHUHZLWKGHSRVLWZLWKWKHFRXUWWKHVXPRIRQHKXQGUHG

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As surety of said undertaking I herewith deposit with the court the sum of one hundred

dollars, legal money of the United States. The document was sworn to by the surety.

It is admitted that the deposit of money was made as stated. Neither petitioners nor their

attorneys were apprised of the filing of the undertaking or of the deposit of the money, and

had no knowledge thereof. On the 22d day of October 1935, the case was tried de novo in

said district court, and judgment rendered in favor of plaintiff in the amount of $275 and

costs. On the 3d day of December 1935, a motion made by petitioners in said district court for

an order vacating the judgment on appeal and dismissing the same on the ground that the

court was without jurisdiction to entertain the appeal was denied. Hence the proceeding for a

review in this court.

Petitioners contend that jurisdiction was wanting in the district court (1) because no legalbond was ever given to perfect the appeal, and (2) because no written notice of the filing of an

undertaking was ever given.

Concerning an appeal from a justice's court, section 9339 N. C. L. provides in part as

follows:

An appeal from a justice's court where no stay of proceedings is claimed is not effectual

for any purpose unless an undertaking is filed, with two or more sureties, in the sum of one

hundred dollars, for the payment of the costs on the appeal. If a stay of proceedings is

claimed, the appellant must file an additional undertaking, in a sum equal to twice the amount

of the judgment, including costs, when the judgment is for the payment of money. * * *

A deposit of the amount of the judgment, including all costs, appealed from or of the

value of the property, including all costs in actions for the recovery of specific personal

property, with the justice, is equivalent to the filing of the undertaking.

1. It is insisted by petitioners that these provisions are controlling, and that under them, as

to the first SRLQWWKHJLYLQJHLWKHURIDQXQGHUWDNLQJLQWZLFHWKHDPRXQWRIWKHMXGJPHQWLQFOXGLQJFRVWVRUDGHSRVLWLQWKHDPRXQWRIWKHMXGJPHQWDQGFRVWVZDVDQHVVHQWLDO

VWHSWRJLYHWKHGLVWULFWFRXUWMXULVGLFWLRQ


25/359


point, the giving either of an undertaking in twice the amount of the judgment, including

costs, or a deposit in the amount of the judgment and costs, was an essential step to give the

district court jurisdiction. No stay of proceedings was claimed. Consequently an undertaking

with two or more sureties in the sum of $100 would have satisfied the statute. There is

nothing uncertain about this. The first part of said section so prescribes in precise terms. As

we have seen, such an undertaking was not given, but the sum of $100 was deposited in the

justice's court at the time the undertaking, with one surety, was filed. We think the deposit

was sufficient to confer jurisdiction by virtue of section 9363 N. C. L., which provides: In all

civil cases arising in justice's courts, wherein an undertaking is required as prescribed in this

act, the plaintiff or defendant may deposit with said justice a sum of money in United States

gold coin equal to the amount required by the said undertaking, which said sum of money

shall be taken as security in place of said undertaking.

2. This was the effect given to a statute of California (section 926 Cal. Code Civ. Proc.)

identical with section 9363, by the supreme court of that state, in Laws v. Troutt, 147 Cal.172, 81 P. 401. When that case was decided, the California statute (section 978 Code Civ.

Proc.) providing for appeal bonds in cases arising in justice's courts was practically the same

as section 9339 N. C. L. Our statutes were taken from the California code. So we presume

that section 9363 N. C. L. was adopted by the legislature with the construction given it by the

supreme court of the parent state. Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49.

We are told by petitioners that the case of Floyd v. District Court, 36 Nev. 349, 351, 135

P. 922, 4 A. L. R. 646, supports their contention. The law has been changed since the appeal

was taken in that case. Section 9363 N. C. L. was not then, as now, a part of the law

governing the taking of appeals in cases arising in justices' courts.


Counsel for petitioners describe this section as a general or catch-all provision of no

application. It was not considered so in the state from which it was adopted, Laws v. Trout,

supra, nor are we of that opinion. The language of the section does not leave any room for

construction in line with petitioner's contention. It reads: In all civil cases arising in justices'

court, etc.

3. The point that the court was without jurisdiction because no notice of the undertaking or

deposit was given must also be decided adversely to petitioners. They rely on the last part of

section 9339, which reads: The adverse party may except to the sufficiency of the sureties

within five days after written notice of the filing the undertaking, and unless they or other

sureties justify before the justice within five days thereafter, upon notice to the adverse party,

to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking

had been given. (The italicizing is ours.)

It is not there or elsewhere required that notice of a deposit made in lieu of an undertaking

be given to a respondent, and with reason. The very purpose to be served in requiring written


26/359

notice of an undertaking is effected by a deposit in lieu thereof; namely, adequate security.

The law does not require vain acts. State ex rel. Collins v. District Court, 54 Nev. 404, 20 P.

(2d) 655, cited by petitioners, is therefore not in point.

The writ must be dismissed.

It is so ordered.

____________

57 Nev. 35, 35 (1936) State v. Seymour

STATE v. SEYMOUR

No. 3133

May 7, 1936. 57 P. (2d) 390.

1. Incest.Testimony of prosecutrix, an accomplice, heldsufficiently corroborated to sustain conviction for incest

(Comp. Laws, sec. 10978).

2. Criminal Law.Evidence that accused committed act of incest in county of prosecution heldsufficient to sustain

conviction therefor.

3. Incest.Accomplice is sufficiently corroborated to sustain conviction for incest, where circumstances in evidence

from sources other than accomplice's testimony tend on the whole to connect accused with crime charged

(Comp. Laws, sec. 10978).

4. Criminal Law.Weight of evidence was for jury.

5. Criminal Law.In incest prosecution, prosecutrix' testimony as to acts of sexual intercourse with accused before and after

date of act charged heldadmissible as tending to show relation and incestuous disposition of accused and

prosecutrix.

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

Arthur B. Seymour was convicted of incest, and he appeals. Affirmed.

John W. Burrows, for Appellant:

The verdict of the jury in the above-entitled case was contrary to the law as defined in the

instructions given the jury by the court; and the verdict of the jury so rendered was contrary to

the evidence presented in the case, and said evidence was insufficient to sustain such verdict.

There was nothing to prove that the adultry was not committed in California, and if so, the

courts of Nevada had no jurisdiction in the case. Ruth Seymour was a self-confessed


27/359

accomplice, and it is the law of this state that no person can be convicted on the

uncorroborated testimony of such an accomplice. There ZDVQRRQHHOVHZKRVD\VWKDWWKHUHZDVDQDFWRILQWHUFRXUVHFRPPLWWHGLQ1HYDGD


was no one else who says that there was an act of intercourse committed in Nevada. Gertrude

Seymour testified that she knew of the trip to Sacramento, California; Ruth Seymour testified

that they went to Sacramento; Arthur Seymour, who did not deny the paternity, said: We

committed adultery in Sacramento; Frank Seymour, who was in the car at the time, was not

put on the stand; 266 days from September 9, 1934, the time they were at Sacramento, to June

1, 1935, is a normal time for the birth of full-term baby; Gertrude Seymour said that the baby

was a strong, normal baby. There was no corroboration of Ruth Seymour's testimony that the

conception of the baby was not the happening of the events at Sacramento, California.

It is not sufficient corroboration merely to show generally that the defendant was anassociate of the accomplice. Peo. v. Koening, 99 Cal. 574, 34 P. 238; Peo. v. Larsen, 4 Cal.

Unrep. Cas. 286, 34 P. 514; Peo. v. Butler, 71 N. Y. S. 129; Smith v. State (Tex. App.), 38 S.

W. 200; State v. Lay, 38 Utah 143, 110 P. 286; Peo. v. Morton, 139 Cal. 139, 73 P. 609.

Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy

Attorneys-General; andErnest S. Brown, District Attorney, for the State:

Where one act of incestuous intercourse is elected for prosecution, testimony of either

prior or subsequent acts is admissible as evidence of an incestuous disposition, and as

corroboration of the testimony as to the one act. People v. Koller (Cal.), 76 P. 500.

The corroboration necessary and required by section 10978 N. C. L. is simply sufficientcorroboration which tends to connect the defendant with the crime. State v. Streeter, 20 Nev.

403, 22 P. 758; 31 C. J. 388. Ruth Seymour, the prosecutrix, testified definitely to the place

and time and to the crime charged in the information. Her mother testified that the defendant

himself had confessed that the girl's pregnancy was due to his fault. The mother further

testified that she had noticed WKHDIIHFWLRQDWHDWWLWXGHRQWKHSDUWRIWKHGHIHQGDQWWRZDUGKHUGDXJKWHUIURPWKHSHULRGFRPPHQFLQJZLWK-XQHXQWLO)HEUXDU\


the affectionate attitude on the part of the defendant toward her daughter from the period

commencing with June 1934 until February 1935. Furthermore, the defendant himself

admitted on examination that he had had sexual intercourse at least on one occasion with

Ruth Seymour, and that he constantly kept company with her from June 1934 until February

1935, and that he had seen her nearly every day; that he had spent a night in a hotel in Reno,

Washoe County, Nevada, with her; that he had engaged in petting parties frequently with

her; had addressed her affectionately. He testified positively that he loved the girl, that he


28/359

wanted to marry her, that he intended to marry her when he had secured his divorce from his

wife. We believe, from the opinion in the case of State v. Streeter, supra, that under this

evidence it was entirely for the jury to decide as to its weight.

OPINION

By the Court, Ducker, C. J.:

The defendant, Arthur B. Seymour, was convicted of the crime of incest. He has appealed

from the judgment and the order denying his motion for a new trial.

It is alleged in the information that the offense was committed in the county of Washoe,

State of Nevada, on or about October 1, 1934. The mother of the female with whom the

defendant is alleged to have committed the crime instituted the prosecution, but for

convenience we will refer to the daughter as the prosecutrix.

1-3. Defendant insists that the evidence is insufficient to justify the verdict, and that the

verdict is contrary to the evidence, in this, that the evidence fails to show that he committed

an offense of incest in Washoe County, Nevada. He contends also that there is not sufficientcorroboration of the testimony of the prosecutrix, an accomplice. The following facts wereSUHVHQWHGLQHYLGHQFH'HIHQGDQWDQGSURVHFXWUL[DUHUHODWHGDVILUVWFRXVLQV


presented in evidence: Defendant and prosecutrix are related as first cousins. The latter was

eighteen years of age on the former's trial in July 1935. She had lived with her parents in said

city of Sparks all of her life and was never married. Defendant has also lived in that city for a

number of years. His parents separated when he was quite young and thereafter he lived atdifferent times with his mother, father, and grandmother. He lived for a while at the home of

the prosecutrix. Defendant was married in April 1928. He and his wife separated in April

1934, and she left Sparks and went to Oakland, Calif., taking their young daughter with her.

The separation was caused by defendant's attentions to the prosecutrix. The latter testified that

between June 1, 1934, and February 15, 1935, she saw defendant quite often in the city of

Sparks, county of Washoe, State of Nevada. He came to her home frequently and they were

much together within that period. She testified that she had sexual intercourse with him

during that time about twice a week, all of which occurred in said city of Sparks. They had

such intercourse on one occasion on or about October 1, 1934, in that city at a place where

defendant was living, known as the Deer Park Grocery Store. She continued having theserelations with him in Sparks until about February 15, 1935, when her mother, who became

aware of her pregnancy, took her to a hospital in Oakland, Calif., where she gave birth to a

child on June 1, 1935. Defendant is the father of that child.

The testimony of the prosecutrix summarized above, together with other evidence, reveals

enough of the legal evidence adduced to support the verdict and judgment.

The mother of the prosecutrix was a witness for the state. She testified that she had been

residing with her husband in the city of Sparks for a number of years. She testified that


29/359

prosecutrix was their daughter, and defendant's father was a brother of her husband. The

witness had known defendant for a long time and knew WKDWKHZDVDPDUULHGPDQGXULQJWKH\HDU


that he was a married man during the year 1934. He became unduly attentive to her daughter

and this was more apparent after witness returned from Lake Tahoe to her home in Sparks on

September 14, 1934. She testified that he was in her company frequently; addressed her as

sweetie, and all those affectionate words that lovers use. This unusual conduct between

cousins caused the witness to admonish defendant to cease visiting her daughter. He resented

her interference and did not discontinue his attentions. She saw defendant in company with

her daughter quite often after that. Whenever the daughter went to school, he would

accompany her. In February 1935, witness went to the school and found them near there is an

automobile. At this time they admitted to her that prosecutrix was pregnant, and defendantconfessed to her that he was the cause of it. He said he would marry prosecutrix after he got a

divorce. The witness then took her daughter to a hospital in Oakland, Calif., where she gave

birth to a child on June 1, 1935, as also testified to by the daughter.

But evidence of defendant's intimacy with the prosecutrix on or about the date alleged in

the information is also supplied by the defendant himself. He was a witness in his own behalf.

In his testimony he admitted that he was the father of the child, and his knowledge of his

relation with prosecutrix as her cousin. After he took his wife to San Francisco on April 27,

1934, he commenced keeping company with prosecutrix. He commenced to love her in 1931

and loved her ever afterwards.

He admitted having sexual intercourse with her in Sacramento, Calif., in September 1934.

Later in that year he took her to a hotel in Reno where he engaged a room and signed thehotel register as husband and wife. They remained in that room all night and he sought to

relieve her of pregnancy by having her drink a quantity of gin.

The testimony of the mother and defendant does not GLVFORVHDQ\RQHFLUFXPVWDQFHWHQGLQJGLUHFWO\WRFRUURERUDWHWKHWHVWLPRQ\RIWKHSURVHFXWUL[LWLVWUXHEXWWKLVLV

XQQHFHVVDU\


disclose any one circumstance tending directly to corroborate the testimony of theprosecutrix, it is true, but this is unnecessary. If circumstances in evidence from sources other

than the testimony of the accomplice tend on the whole to connect the accused with the crime

charged, it is enough. State v. Streeter, 20 Nev. 403, 22 P. 758; 31 C. J. 388, and cases cited

in note 55 supporting the text. The testimony of the mother and the defendant shows a

conjunction of opportunity and intimacy extending over a period of time, both before and

after the act charged. This led, as appears by his admission, to an act of sexual intercourse

shortly prior to the time specified in the information. Not long after that time, as likewise


30/359

appears from his admission, followed the clandestine association as husband and wife in the

room of the hotel in Reno. These circumstances are of sufficient probative force to satisfy the

statute as to the corroboration of an accomplice. Collectively, they tend to connect the

defendant with the commission of the offense. Section 10978 N. C. L.

4. The weight of the evidence was for the jury. The prosecutrix was also corroborated by

the testimony of the mother and defendant as to the other sexual acts.5. It was objected by the defendant that the testimony of prosecutrix as to such other acts

with defendant was inadmissible. We are not of that opinion. Those acts occurring, as she

testified, about twice a week, commencing around the 1st of June 1934, and continuing until

February of the following year, tended to show the relation and incestuous disposition of the

parties, which had a probative bearing upon the probability of the crime having been

committed as charged. Prior acts of sexual intercourse are admissible in this class of cases,

according to the great weight of authority. People v. Stratton, 141 Cal. 604, 75 P. 166;

Lipham v. State, 125 Ga. 52, 53 S. E. 817, 114 Am. St. Rep. 181, 5 Ann. Cas. 66; State v.

Pruitt, 202 Mo. 49, 100 S. W. 431, 10 Ann. Cas. 654; Thayer v. Thayer, 101 Mass. 111, 100

Am. Dec. 110; State v. Wallen, 123 0LQQ


Minn. 128, 143 N. W. 119; People v. Skutt, 96 Mich. 449, 56 N. W. 11; 16 C. J. p. 602; 14 R.

C. L. p. 38; Wigmore on Evidence (2d ed.) sec. 398. Subsequent acts are within the rule.

Thayer v. Thayer, supra; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Witham, 72

Me. 531; Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47; State v. Bridgman, 49 Vt. 202, 24

Am. Rep. 124; State v. Reineke, 89 Ohio St. 390, 106 N. E. 52, L. R. A. 1915a, 138; People

v. Koller, 142 Cal. 621, 76 P. 500; Wigmore on Evidence, sec. 398; Bishop on Statutory

Crimes, sec. 682. Especially are such acts admissible when, as here, they are connected withanterior acts, thus showing a continuousness of illicit relations.

We have considered all other claims of error made by defendant and find them to be

without merit.

The judgment and order denying the motion for a new trial should be affirmed.

It is so ordered.

____________

57 Nev. 41, 41 (1936) Lyon County Bank v. Lyon County Bank

LYON COUNTY BANK Et Al. v. LYON COUNTYBANK Et Al.

No. 3135

June 16, 1936. 58 P. (2d) 803.

1. Parties.


31/359

Statutory ground of demurrer that plaintiff has not legal capacity to sue heldto refer to persons who

cannot sue except by guardians, next friends, committees, or, in case of married women, by joining their

husbands in certain cases (Comp. Laws, sec. 8596).

2. Action.In action by bank as trustee of railroad to recover trust fund in bank at time bank was taken over by bank

examiner, complaint heldnot demurrable on ground that plaintiff was without legal capacity to sue, in that

same person could not control both prosecution and defense of action (Comp. Laws, secs. 747 et seq.,8596).

Complaint alleged that suit was brought for benefit of bondholders of railroad of which bank was

WUXVWHHXQGHUWUXVWGHHGSXUVXDQWWRZKLFKEDQNKDGIRUHFORVHGWUXVWGHHGDQGSURFXUHGDSSRLQWPHQWDVUHFHLYHUHPSRZHUHGWRFROOHFWDQGGLVEXUVHWUXVWIXQGIRUERQGKROGHUVRIUDLOURDGWKDWEDQNH[DPLQHUWRRNFKDUJHRIEDQNSXUVXDQWWREDQNLQJODZVDQGWKHUHDIWHUVWDWHVXSHULQWHQGHQWRIEDQNVWRRNFKDUJHRIEDQNDQGLWVDVVHWVSXUVXDQWWRVWDWXWHDQGWKDWFHUWDLQWUXVWIXQGVZHUHLQKDQGVRIVXSHULQWHQGHQWRIEDQNVSXUVXDQWWRVWDWXWHDQGWKDWEDQNH[DPLQHUKDGGLVDOORZHGFODLPVIRUVXFKIXQGVDVSUHIHUUHGFODLPV

57 Nev. 41, 42 (1936) Lyon County Bank v. Lyon County Bank

trustee under trust deed pursuant to which bank had foreclosed trust deed and procured appointment as

receiver empowered to collect and disburse trust fund for bondholders of railroad; that bank examiner

took charge of bank pursuant to banking laws, and thereafter state superintendent of banks took charge

of bank and its assets pursuant to statute; and that certain trust funds were in hands of superintendent of

banks pursuant to statute, and that bank examiner had disallowed claims for such funds as preferred

claims.

3. Banks and Banking.In suit by bank as trustee of railroad against bank and state superintendent of bank, supreme court held

required to presume that state bank examiner had good and sufficient reasons under statute to take

possession of property and business of bank and administer affairs thereof, where complaint alleged thatstate ba

nevada reports 1935-1937 (57 nev.).pdf

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