Nevada Reports 1906-1907 (29 Nev.) PDF

29 Nev.
1, 1 (1906)
RULES OF THE BOARD OF PARDONS.
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1. The regular meetings of the board shall be held on the Wednesday after the first
Monday in January, and on the second Monday of July of each year. As amended, January,
1906.
2. Special meetings may be called by the governor at any time when the exigencies of any
case demand it, notice thereof being given to each member of the board.
3. No application for the remission of a fine or forfeiture, or for a commutation of
sentence, or pardon, shall be considered by the board unless presented in the form and manner
required by the law of the state approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she must
procure a written certificate of his or her conduct during such confinement, from the warden
of said prison, and file the same with the secretary of this board, on or before the day of
hearing.
5. All oral testimony offered upon the hearing of any case must be presented under oath,
unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered by the
consent of all the members present.
7. After a case has once been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case except upon new and regular notice as required by law
in case of original application.
8. In voting upon any application the roll of members shall be called by the secretary of
the board in the following order:
FirstThe Attorney-General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.
FifthThe Governor.
29 Nev. 1, 2 (1908) Rules of Board of Pardons
Each member, when his name is called, shall declare his vote for or against the
remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to
citizenship.
9. No document relating to a pending application for pardon or commutation of sentence,
or to a prior application which has been denied, shall be withdrawn from the custody of the
clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk at
least two days before the regular meeting of the board, at which the application is to be
considered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship, must
be properly indorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the district judge and
district attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record, may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the district
judge and district attorney of the county in which the indictment was found, at least thirty
days before the hearing, unless, for good cause shown, this time be shortened by the board.
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29 Nev. 3, 3 (1906) State Library Regulations
NEVADA STATE LIBRARY.
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Sections of the Law Relating to Use of Books.
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From Compiled Laws of 1900.
Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.
Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state
librarian, shall execute a receipt and deliver the same to the justices of the supreme court for
all books and other property in the state library.
Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come
into possession of this state, by purchase or otherwise; all books, maps, charts, pamphlets,
and other documents, which, by any state officer, may be received in their [his] official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the legislature
during its session, and at any time by the governor and other officers of the executive
department of this state who are required to keep their offices at the seat of government, the
justices of the supreme court, and attorney-general; provided, that no person shall be
permitted to have more than two volumes of miscellaneous works from said library at the
same time.
29 Nev. 3, 4 (1906) State Library Regulations
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except the
laws, journals and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure or fail to return any books taken from the library
within the time prescribed in the foregoing section, he shall forfeit and pay to the librarian,
for the benefit of the library, three times the value thereof, or of the set to which it belongs.
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29 Nev. 5, 5 (1906) Rules of State Library
RULES OF STATE LIBRARY.
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The number of users of the library is so small under the law that it has not heretofore been
considered necessary by those in charge to publish any rules in addition to those included in
the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested not to replace
them on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound magazines
are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and district
courts, when in the capital city.
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29 Nev. 7, 7 (1906) Rules of Supreme Court
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; as amended to July 7, 1908.
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RULE I.
1. Applicants for license to practice as attorneys and counselors will be examined in open
court on the first day of the term.
Examination for Attorneys-at-Law.
2. The supreme court, upon application of the district judge of any judicial district, will
appoint a committee to examine persons applying for admission to practice as attorneys and
counselors-at-law. Such committee will consist of the district judge and at least two attorneys
resident of the district.
The examination by the committee so appointed shall be conducted and certified according
to the following rules:
Examination by Committee.
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any member
of the committee previous to the examination.
Examination to Embrace.
The examination shall embrace the following subjects:

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

2
The constitutional relations of the state and federal governments;

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

4
The various sources of our municipal law;

5
The general principles of the common law relating to property and personal rights and
obligations; 6 The general grounds of equity jurisdiction and principles of equity
jurisprudence;

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

7
Rules and principles of pleadings and evidence;

8
Practice under the civil and criminal codes of Nevada;

9
Remedies in hypothetical cases;

10
The course and duration of the applicant's studies.
3. The examiners will not be expected to go very much at large into the details of these
subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge and the
accuracy of his understanding of those subjects and books which he has studied.
Examination by Committee.
4. When the examination is completed and reduced to writing, the examiners will return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character and has attained his majority, and is a bona fide resident of this state. Such
certificate shall also contain the facts that the applicant was examined in the presence of the
committee; that he had no knowledge or intimation of the nature of any of the questions to be
propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
Fee To be Deposited Before Examination.
5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of
the court before the application is made, to be returned to the applicant in case of rejection.
RULE II.
Filing Transcript.
In all cases where an appeal has been perfected, and the statement settled (if there by one)
thirty days before the commencement of a term, the transcript of the record shall be filed on
or before the first day of such term.
RULE III.
Appeal May Be DismissedCan Be Restored.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and, unless so restored, the dismissal shall be final and a bar to any other
appeal from the same order or judgment.
unless so restored, the dismissal shall be final and a bar to any other appeal from the same
order or judgment.
How Restored.
2. On such motion there shall be presented the certificate of the clerk below, under the
seal of the court, certifying the amount or character of the judgment; the date of its rendition;
the fact and date of the filing of the notice of appeal, together with the fact and date of service
thereof on the adverse party, and the character of the evidence by which said service appears;
the face and date of the filing of the undertaking on appeal; and that the same is in due form;
the fact and time of the settlement of the statement, if there by one; and also that the appellant
has received a duly certified transcript, or that he has not requested the clerk to certify to a
correct transcript of the record; or, if he has made such request, that he has not paid the fees
therefor, if the same have been demanded.
RULE IV.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the other edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten inches each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines.
Nothing smaller than minion type leaded shall be used in printing.
Transcripts in Criminal Cases.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches in width, with a margin of not less than one and one-half
inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so
that the same may be secured, and every part conveniently read. The transcript, if written,
shall be in a fair, legible hand, and each paper or order shall be separately inserted.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness;
and the transcript shall have at least one blank fly-sheet cover.
script shall be prefaced with an alphabetical index, specifying the folio of each separate
paper, order, or proceeding, and of the testimony of each witness; and the transcript shall
have at least one blank fly-sheet cover.
Cannot Be Filed.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record
in original proceedings upon which the case is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by
the clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
opposite party a verified cost bill, setting forth or stating the actual cost of such printing or
typewriting, and no greater amount than such actual cost shall be taxed as costs.
no greater amount than such actual cost shall be taxed as costs.
Mode of Objecting to Costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
Indorsed Upon Remittitur.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order, and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to retaxation in such district court or
other tribunal.
RULE VII.
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record, as may be
required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
RULE VIII.
ExceptionsDiminution of Record.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of
appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term
after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
term after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
RULE IX.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.
Calendar to Consist ofUpon Motion.
1. The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the parties;
provided, that all cases, both civil and criminal, in which the appeal has been perfected and
the statement settled, as provided in Rule II, and the transcript has not been filed before the
first day of the term, may be placed on the calendar, on motion of either party, after ten days'
written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
3. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
RULE XI.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the point made.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points
and authorities or briefs under the provisions of this rule and within the time herein
provided, shall be deemed a waiver by such party of the right to orally argue the case, and
such party shall not recover cost for printing or typewriting any brief or points and
authorities in the case.
ties or briefs filed, and a failure by either party to file points and authorities or briefs under
the provisions of this rule and within the time herein provided, shall be deemed a waiver by
such party of the right to orally argue the case, and such party shall not recover cost for
printing or typewriting any brief or points and authorities in the case.
4. No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII.
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII.
Number of Copies To Be Filed.
Besides the original, there shall be filed ten copies of the transcript, briefs, and points and
authorities, which copies shall be distributed by the clerk.
RULE XIV.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV.
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision.
lication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within
ten days thereafter may file a reply to the petition, and no other argument shall be heard
thereon. No remittitur or mandate to the court below shall be issued until the expiration of the
fifteen days herein provided, and decisions upon the petition, except upon special order. The
times herein provided for may be shortened or extended for good cause shown, by order of
court.
RULE XVI.
Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No Paper To Be Taken Without Order.
No paper shall be taken from the court room or clerk's office, except by order of the court,
or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
RULE XVIII.
Writ of Error, or Certiorari.
No writ of error or certiorari shall be issued, except upon order of the court, upon petition,
showing a proper case for issuing the same.
RULE XIX.
Writ of Error to Operate as Supersedeas.
Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking
with the clerk of the court below, and upon giving notice thereof to the opposite party or his
attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be
substantially the same as required in cases on appeal.
RULE XX.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
RULE XXI.
To Apply.
The rules and practice of this court respecting appeals shall apply, so far as the same may
be applicable, to proceedings upon a writ of error.
RULE XXII.
Time Concerning Writ.
The writ shall not be allowed after the lapse of one year from the date of the judgment,
order, or decree which is sought to be reviewed, except under special circumstances.
RULE XXIII.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles from Carson, an additional day's notice will be required for each fifty miles, or fraction
of fifty miles, from Carson.
RULE XXIV.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the time
is shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the discretion of
the party appealing, need not be printed; but, if printed, all the rules concerning the same shall
still apply thereto.
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy To be ServedTwo Copies To Be Filed.
3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.
Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
RULE XXVII.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
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29 Nev. 17, 17 (1906) Rules of District Court
RULES
OF THE
District Court of the State of Nevada
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RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
Calendars to ContainAttorneys.
The clerk of each county of the state shall make three calendars for the district court of his
county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another of which he shall place all civil causes at issue upon a
question of law, and all motions of every nature, except ex parte motions, as soon as the issue
is made, or as soon as notice of motion is filed; and upon the third of which he shall place all
criminal business of every kind. The names of the attorneys of the respective parties shall be
appropriated placed on such calendars. The clerk shall, on every Saturday, forward to the
presiding judge of the court, and also to the judge who is to sit in his county, a full statement
of the condition of the business of the court as shown by the calendars.
RULE III.
Notice as to Time.
The judge who is to hold court in any county shall give the clerk of such county notice of
the time when court will sit. The clerk shall, immediately upon receiving such notice, give all
the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county seat of his county, provided it can be done without expense.
court, in some newspaper printed and published at the county seat of his county, provided it
can be done without expense.
RULE IV.
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be called
and disposed of. The trial calendar will then be called, and causes at issue upon questions of
fact disposed of. When the calendar is called the causes will be set for a time certain. Parties
are expected to be ready to try their causes, whether at issue upon questions of law or fact,
when the calendar is called, and in the order in which they are set. Parties may, prior to the
meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of
the court or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
RULE V.
Law Day.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, and be heard without previous setting or notice.
RULE VI.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs of such judge, with his consent, and the decision may be filed
thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such
decision, shall receive due written notice thereof from the opposite party.
judge first having jurisdiction of the cause, or such questions of law, or motions, as the case
may be, may be submitted on briefs of such judge, with his consent, and the decision may be
filed thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such decision,
shall receive due written notice thereof from the opposite party. Time for complying with
such decision shall commence to run from the time when service is made in the manner
required by the statutes for service of pleadings in a case; provided, that when the parties are
present by their respective attorneys when the decision is rendered, no notice shall be
required.
RULE VIII.
DemurrerSet Down for Trial.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the
court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit. In cases other than those above mentioned, ten days shall be allowed to amend or
plead, as the case may be, unless the court by its order fix a different time.
RULE IX.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X.
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day
specified for a hearing, and a copy of all papers to be used by the moving party, except
pleadings or other records of the court, shall be served with the notice of motion.
continuance, and motions to amend pleadings pending a trial, shall be noticed at least five
days before the day specified for a hearing, and a copy of all papers to be used by the moving
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
RULE XI.
Hearing of Motions.
Upon reading and filing the notice of motion, with due proof of service of the same, and of
the papers mentioned therein, if no one appears to oppose the motion, the moving party shall
be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either
party shall be endorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
RULE XII.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII.
Attorneys as Witnesses.
If the attorney or counsel of either party offers himself as a witness on behalf of his client,
and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the
jury, without the permission of the court.
RULE XIV.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
DepositionsInterrogatories, How Settled.
A party making application for a commission to take the deposition of a witness out of the
state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,
at least one day before the hearing of the application, the adverse party shall serve upon the
moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be
settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, that parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
application, unless the court or judge otherwise direct; provided, that parties may agree to the
interrogatories without submission to the court or judge, or may stipulate that the depositions
may be taken without written interrogatories.
RULE XVI.
Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
RULE XVIII.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved.
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment
shall be dissolved by reason of any defect in the attachment papers that can be amended
without affecting the substantial rights of the parties.
RULE XXI.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgages premises, and to examine and report whether the
mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage
has not become due.
brancers of the mortgages premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to
compute the amount due on the mortgage, preparatory to the application for decree of
foreclosure.
RULE XXIV.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for new trial, the adverse party shall have the same number of days to propose amendments or
file counter affidavits as was allowed by such order to file such statement or affidavits.
RULE XXV.
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder indorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings.
the stay of execution or other proceedings. The certificate shall state the title of the action, the
order staying the execution or other proceedings, and the date of such order, together with the
filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a vacation of
the order.
RULE XXVII.
Stipulations.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
the proceedings therein, will be regarded, unless the same shall be entered in the minutes in
the form of an order, by consent, or unless the same shall be in writing, subscribed by the
party against whom the same shall be alleged, or by his attorney or counsel.
RULE XXVIII.
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.
Guardians.
No person shall be appointed guardian ad litem, either upon the application of the infant or
otherwise, unless he be the general guardian of the infant, or an attorney or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
RULE XXX.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
RULE XXXI.
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII.
To Furnish to the Clerk.
The counsel obtaining any order, judgment or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII.
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV.
Retax Costs.
The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
Mechanics' Liens.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
RULE XXXVI.
Motions.
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
RULE XXXVII.
Appeal from Justices' CourtDismissed, When.
When an appeal from the justices' court to this court has been perfected, and the papers are
not filed in this court within fifteen days from the day of filing the undertaking on appeal,
this court, on the production of a certificate from the justice to the effect that an appeal
has been ordered up, or the proper costs not paid, or upon showing that any other
necessary steps have not been taken, shall dismiss the appeal at the cost of the appellant.
appeal, this court, on the production of a certificate from the justice to the effect that an
appeal has been ordered up, or the proper costs not paid, or upon showing that any other
necessary steps have not been taken, shall dismiss the appeal at the cost of the appellant.
RULE XXXVIII.
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court within
fifteen days from the day upon which the order of the justice is made directing the transfer of
the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that he has certified the papers as required by said section, but
that the same has not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
RULE XXXIX.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Instructions To Be Settled, When.
Before the argument begins, counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
argument, and permit counsel to use them when addressing the jury.
RULE XLI.
Trials.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless
upon the written request of the judge who shall have first entered upon the trial or
hearing of said cause, proceeding, demurrer or motion.
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing of said
cause, proceeding, demurrer or motion.
RULE XLII.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.
Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
RULE XLIV.
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV.
Vacating Judgments, Orders, Etc.Time to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court, submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,
Committee.
Attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby
adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be
in force in each county thirty days after the date of their filing in the clerk's office of such
counties.
RICHARD RISING,
Presiding District Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
____________
29 Nev. 43, 43 (1906)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1906.
____________
29 Nev. 43, 43 (1906) State v. Lovelace
[No. 1679.]
THE STATE OF NEVADA, Respondent, v. PAUL
LOVELACE, Appellant.
BurglarySufficiency of IndictmentLanguage Thereof.
1. The said Paul Lovelace did in the night time of the 11th day of May, 1904, or in the night time of some day
thereabouts, to the said 11th day of May, 1904, enter, etc., would sufficiently comply with the statute to
constitute the charge of burglary. The authorities show that courts should give a liberal interpretation of
indictments to uphold the same rather than a rigid interpretation.
2. That the mere grammatical, punctuational (if verbal free coinage may be here allowed), rhetorical or
linguistic error does not always vitiate, is fully sustained by decisions of courts and text-writers.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Elko
County; George S. Brown, Judge.
Paul Lovelace was convicted of the crime of burglary, and he appeals. Affirmed.
The facts sufficiently appear in the opinion.
William Woodburn, for Appellant:
I. The indictment is not good at common law. The time of the commission of the crime
charged in the indictment is in the following words: The said Paul Lovelace on the 11th day
of May, 1904, in the night time of said day, or thereabouts, in the County of Elko, State of
Nevada, without authority of law and before the finding of this indictment, did wilfully,
unlawfully and burglariously break and enter the building of one Alexander Burrell.
Appellant claims that this indictment is not good at common law because the words or
thereabouts relate to and qualify the words night time. If the words or thereabouts had
been inserted after the words on the 11th day of May, 1904, the indictment could not be the
subject of criticism or assault. If the indictment read that on the 11th day of May, 1904, in the
night time, or thereabouts, of said day, the fair construction is that the burglary may be
committed near or about the night time, which would make the indictment fatally defective.
The offense of burglary must be committed in the night time, and not near or about the night
time, and should be alleged with certainty. The night time consists of the period from the
termination of daylight to the earliest dawn of the morning. (Whart. Crim. Law, 8th ed. 807;
State v. Bancroft, 10 N. H. 105.) Burglary in the night time does not include burglary in the
daytime. (State v. Behee, 17 Kan. 402; State v. Alexander, 56 Mo. 131; Williams v. State, 46
Ga. 212.) If language employed in charging part of indictment be capable of two
interpretations the indictment is bad. (People v. Williams, 36 Cal. 671.) The words or
thereabouts cannot be rejected as surplusage. (People v. Myers, 20 Cal. 76.)
II. On the trial of appellant the deposition of one Ross, taken at the preliminary
examination, was read in evidence, because he broke jail and escaped before the trial and his
presence could not be procured. He testified that he and appellant entered the store of
Alexander Burrell on the day named in the indictment, stole a lot of amalgam of the value of
about $2,400, and buried it a short distance from the scene of the crime. Appellant claims
there was no testimony corroborative of that of Ross, and that a conviction could not be
had.
mony corroborative of that of Ross, and that a conviction could not be had. (Sec. 4330,
Comp. Laws.)
James G. Sweeney, Attorney-General, and Charles B. Henderson, for Respondent:
I. Section 4206 of the Compiled Laws of Nevada (Section 241 of Criminal Practice Act)
says: The words used in an indictment shall be construed in the usual acceptance in common
language, except such words and phrases as are defined by law, which are to be construed
according to their legal meaning. As the words or thereabouts are not defined by law, we
must therefore construe them in their usual acceptance in common language. It is manifest
that the intention of the pleader was to charge the forcible breaking and entering in the night
time of the 11th day of May, 1904, and that is what any person of common understanding
would construe it to mean, but counsel for appellant contends that, under a strict grammatical
analysis, it means that defendant forcibly broke and entered the building in the night time or
thereabouts. In order to reach this construction, he reads the indictment as if the words or
thereabouts immediately followed the words night time instead of the words said day,
when the words or hereabouts, taken in their usual acceptance in common language, related
to the 11th day of May, 1904, and not to any particular hour or part of that day, for, had the
evidence shown that the forcible breaking and entering was on the 9th day of May, 1904, the
indictment would still have been good, because it would have still been in the night time of
said day.
II. The most that can be said against the use of these in the indictment and in the place that
they are is that it makes the language of the indictment rather awkward, but the criticism that
would deprive it of any meaning whatever or of such a meaning as to wholly destroy the
indictment is too broad. It is a more reasonable construction to simply reject the words or
thereabouts as wholly unnecessary to its sense, or construe them as relating to the 11th day
of May, 1904. There is nothing to perplex one of ordinary understanding, nor to injure this
appellant. If error at all, it is harmless error, and can be treated as mere surplusage, for
this appellant could not have been prejudiced at all.
it is harmless error, and can be treated as mere surplusage, for this appellant could not have
been prejudiced at all.
By the Court, Fitzgerald, C. J.:
Defendant appeals from a judgment rendered against him in the district court in and for
Elko County for the crime of burglary; and he assigns two reasons why, as he claims, the
judgment should be reversed:
First, the insufficiency of the indictment on which the judgment was based; and
Second, the absence of corroboration of the testimony of an accomplice who testified
against the defendant.
Under the first head the point made is on the proper interpretation of the following clause
in the indictment: The said Paul Lovelace on the 11th day of May, 1904, in the night time of
said day, or thereabouts, in the County of Elko, State of Nevada, without authority of law,
and before the finding of this indictment, did wilfully, unlawfully, and burglariously break
and enter the building of one Alexander Burrell.
Counsel for defendant in his or their brief, if an unsigned paper in the usual form of a brief
found among the papers in the case as they appear filed in this court is by us treated as a brief,
say:
Appellant claims that this indictment is not good at common law because the words or
thereabouts' relate to and qualify the words night time.' This question was not raised in the
court below, but is here presented for the first time. The question is not whether this
indictment would be good at common law. It is whether it is good under the statute of
Nevada that governs the subject. The subject is governed by the sections following
concerning indictments:
Section 4199, Comp. Laws, provides that the indictment shall contain a statement of the
acts constituting the offense, in ordinary and concise language, and in such manner as to
enable a person of common understanding to know what is intended.
Section 4206, Comp. Laws, has the following: The words used in an indictment shall be
construed in the usual acceptance in common language, except such words and phrases as
are defined by law, which are to be construed according to their legal meaning."
acceptance in common language, except such words and phrases as are defined by law, which
are to be construed according to their legal meaning.
Section 4208, Comp. Laws, provides: SixthThat the act or omission charged as the
offense is clearly and distinctly set forth in ordinary and concise language, without repetition,
and in such manner as to enable a person of common understanding to know what is
intended.
Section 4209 is as follows: No indictment shall be deemed insufficient, nor shall the trial,
judgment, or other proceeding thereon be affected by reason of any defect or imperfection in
matters of form which shall not tend to the prejudice of the defendant.
The foregoing enactments show that it was the intention of the Legislature of Nevada that
in construing indictments the courts should not indulge in a too exact and over-nice view of
language; but that certainty to a common intent was all that should be required.
True, in the paragraph of the indictment under discussion there is something of a departure
from the best models of grammatical, rhetorical, or linguistic expression. But we think the
paragraph meets the requirement of the statute that the acts constituting the offense should
be charged in ordinary and concise language, and in such manner as to enable a person of
common understanding to know what is intended. To hold the indictment not fatally bad is,
we think, to keep within the statutory command, as expressed above in Section 4206, or at
least not to depart too far from such command, to wit, to construe in the usual acceptance in
common language.
We think the defect of the indictment complained of was such as in the language of
Section 4209, above quoted, was a defect or imperfection in matters of form, which did not
tend to the prejudice of the defendant.
The language of the indictment could doubtless be made more accurate; but we think it is
not fatally defective. In the brief of counsel for defendant the following correction is offered:
If the words or thereabouts' had been inserted after the words 'on the 11th day of May,
1904,' the indictment could not be the subject of criticism or assault."
words on the 11th day of May, 1904,' the indictment could not be the subject of criticism or
assault.
Perhaps the following phraseology might be considered an improvement on the
phraseology of the indictment: The said Paul Lovelace did in the night time of the 11th day
of May, 1904, or in the night time of some day thereabouts, to the said 11th day of May,
1904, enter, etc.
Said Paul Lovelace did, in the night time, on or about the 11th day of May, 1904, * * *
enter, etc., * * * might perhaps be considered a still better collocation of words, although
this is something of a departure from the form suggested in the statute concerning the form of
indictments.
That mere grammatical, punctuational (if verbal free coinage may be here allowed),
rhetorical, or linguistic error does not always vitiate, is fully sustained by decisions of courts
and text-writers. The following notably excellent authority is cited to sustain this doctrine:
Cyclopedia of Law and Procedure (Cyc.) vol. 6, p. 199, and authorities there mentioned.
While this indictment in the respect mentioned is in truth inartistically drawn, yet, under
the statutes and the authorities above stated, we cannot say that it is fatally defective. The
sections of the statute above quoted show the legislative intent was that the courts of the state
should give interpretations liberal to sustain rather than rigid to overthrow indictments, when,
as in this case, substantial rights of defendants are not thereby prejudiced; and, as we have
from the authority mentioned seen, even under the common law to overthrow this indictment
would seem too rigid an interpretation.
Under the second head the error claimed is stated in the brief of counsel for defendant, as
follows:
On the trial of appellant the deposition of one Ross taken at the preliminary examination
was read in evidence, because he broke jail and escaped before the trial, and his presence
could not be procured.
He testified that he and appellant entered the store of Alexander Burrell on the day named
in the indictment, stole a lot of amalgam of the value of about $2,400, and buried it a short
distance from the scene of the crime.
a short distance from the scene of the crime. Appellant claims there was no testimony
corroborative of that of Ross, and that a conviction could not be had.
In this contention counsel is, we think, clearly mistaken. Besides minor points of
corroboration not necessary to mention here, the testimony of the witness W. J. Davidson
corroborates the testimony of the accomplice, Ross. Davidson testifies that defendant
requested him (Davidson) to help him rob the store at Edgemont; that is the store that was
robbed. Davidson further testifies that the defendant told me he would have got the amalgam
if something had not happened; the amalgam was the article stolen in the robbery. Davidson
further testifies that defendant was trying to dispose of the amalgam, the thing stolen; and
asked Davidson this question: What am I going to do about that damned stuff?
If this testimony was true, and its truth was a question entirely for the jury, there was
corroboration of the testimony of the accomplice, Ross.
Defendant fails in sustaining either of his two points urged in argument for reversal of the
judgment.
The judgment is therefore affirmed.
____________
29 Nev. 50, 50 (1906) State v. Grimes
[No. 1683.]
THE STATE OF NEVADA, ex rel. NEVADA TITLE GUARANTY AND TRUST
COMPANY, a Corporation, Relator, v. PUDDY GRIMES, as County Recorder in and
for the County of Nye, State of Nevada, Respondent.
1. RecordsAccess toRights of Abstract Companies. Under sections 2663, 2664, Comp. Laws, providing that
every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any
real estate, or whereby any real estate may be affected, proved, acknowledged, certified, and recorded in
the manner presented, 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, and under other statutes enumerated, as construed in connection with the common
law, a corporation organized for the purpose of furnishing abstracts and guaranteeing titles may, free of
charge, through its agents and employees, during regular business hours, inspect and make memoranda and
copies of all files and records in the office of the county recorder, in so far as they relate to current
transactions in which it is authorized or employed to make searches, furnish abstracts, or guarantee titles by
persons having, or seeking to acquire, an interest in property; the examination to be made at such times and
under such circumstances as will not prevent the recorder or his assistants from discharging their duties,
nor interfere with the right of other persons to have access to the records.
2. SameCompiling Abstract Books. Under the laws mentioned, relator has not the right to copy or inspect all
records for the purpose of compiling an independent set of abstract books, covering all the property to
which the records relate and for use in equipping an office in opposition to the recorder.
(Syllabus by the Court.)
Original Proceeding. Petition by the State, on the relation of The Nevada Title Guaranty
and Trust Company, for writ of mandamus to Puddy Grimes, County Recorder of the County
of Nye. Denied.
George S. Green, Alfred Chartz, and T. A. A. Siegfriedt, for Relator:
I. Moreover, it is well settled in law that, in the absence of a statute declaring the right of
access and inspection, public records are no less subject to such inspection. As said in Lum v.
McCarty, 39 N. J. Law, 289, by the court, which was a case very similar to the one at bar,
and in which there were provisions of statute declaring the right of public inspection of
certain records, and silent as to others, "it is also suggested that the absence of any
provision for access by the public to the records of judgments of the circuit court favors
the charge {by the clerk) so far as the records of those judgments are concerned.
which was a case very similar to the one at bar, and in which there were provisions of statute
declaring the right of public inspection of certain records, and silent as to others, it is also
suggested that the absence of any provision for access by the public to the records of
judgments of the circuit court favors the charge (by the clerk) so far as the records of those
judgments are concerned. The right of the public to free access to the records carries with it
the right to search without charge for the privileges. Nor can a claim on the part of the clerk
to fees for a search not made by himself or his assistant in the records of the judgments of the
circuit court in his office be justified by the fact that no special provision is made for access
by the public to those records. They are no less free to the public by reason of the absence of a
provision declaring the right. They are, in fact, public records, and are public property, kept in
a public place, at the public expense, for the public benefit.
II. As we have said, the statutes of the State of Nevada are sufficient authority upon which
the relator may base its claims to the right of free access and general inspection of all public
records in the office of the respondent. However, independent of any statute declaring such
right or inspection or requiring such record to be kept, the records of a public officer become
such public records as are subject to the free and general inspection by the public. (Brown v.
Knapp, 54 Mich. 132; Coleman v. Commonwealth, 25 Grat. Va. 881; State v. Donovan, 10 N.
D. 209; State v. Smith, 74 Iowa, 583; State v. Cummins, 76 Iowa, 136; Parsons v. Randolph,
21 Mo. App. 359; Nash v. Lathrop, 142 Mass. 35; Banks v. Manchester, 23 Fed. 143; Myers
v. Callahan, 20 Fed. 441; Chase v. Sanborn, 4 Cliff. 306; Little v. Gould, 2 Blatchf. 165;
Banks v. West Pub. Co., 27 Fed. 50; Thompson v. Hoblitzelle, 85 Mo. 624.) See, also, Burton
v. Tuite, 78 Mich. 363, 80 Mich. 218; Lum v. McCarty, 39 N. J. Law, 286; Aitcheson v.
Huebner, 90 Mich. 645; Johnson v. Wakulla, 28 Fla. 731, 733; State v. Meeker, 19 Neb. 106;
Speilman v. Flynn, 19 Neb. 346.
III. It should be observed that inspection is only restricted to a particular proceeding where
it is obtained by rule of the court; otherwise when obtained by mandamus; and we have been
unable to find any case whatsoever, English or American, in which an inspection was
denied to any one who had a special interest in the subject-matter of the record, and we
challenge counsel for the respondent to find any.
and we have been unable to find any case whatsoever, English or American, in which an
inspection was denied to any one who had a special interest in the subject-matter of the
record, and we challenge counsel for the respondent to find any. The right of abstracters to
examine and inspect all the public records was first denied in the case of Webber v. Townley,
43 Mich. 536, which stood as authority for that position for several years, and which was
followed by several decisions in other states. The right was denied in that case,
notwithstanding that the court said: The object sought by the relators may be considered of
such modern origin as not to have been contemplated or covered by the common-law
authorities relating to the inspection of public records. However, in 1889, Webber v.
Townley was considered by the same court in Burton v. Tuite, 78 Mich. 363, 80 Mich. 218,
and expressly overruled. In that opinion the court said: I cannot agree with the opinion of the
court, or the reasons given for it, in Webber v. Townley, supra. I have a right, if I see fit, to
examine the title to my neighbor's property, whether or not I have any interest in it, or intend
ever to have. I also have the right to examine any title that I see fit, recorded in the public
office, for the purpose of selling such information, if I desire. No one has ever disputed the
right of a lawyer to enter the register's office and examine the title of his client to land as
recorded, or the title of opponent of his client, and to charge his client for the information so
obtained. This is done for private gain, as a part of the lawyer's daily business and by means
of which, with others, he earns his bread. Upon what different footing can an abstractercan
Mr. Burtonbe placed within the law, without giving the privilege to one man or class of
men that is denied to another? See authorities therein cited in case of Burton v. Tuite, 78
Mich. 363.
IV. The contention that a seeker after information in the county recorder's office, who
makes his searches for himself, and who obtains his information without the aid of the
recorder or his assistants, must, nevertheless, pay to the recorder the same fees which the
recorder would be entitled to collect, if he had been required to make the searches for the
applicant, is a proposition which even in that form is already one reductio ad absurdum.
to collect, if he had been required to make the searches for the applicant, is a proposition
which even in that form is already one reductio ad absurdum. If it is not, it can easily be
made so. In Re Chambers, 44 Fed. 786, the court held that the fee attaches, not to the fact of
a search, but to the fact that such search is made by the clerk on the requisition of another. It
is his compensation for his services in actually making the search. It is proper to say that the
court has been at some pains to ascertain the views entertained, and the practice that prevailed
in this matter in other circuits and districts. Inquiries for this purpose extended to four circuits
besides the eighth, and the replies show a substantial concensus of opinion and practice in
harmony with the views here expressed.
V. Reference is here especially made to Warvelle on Abstracts (1892), chap. V. par. 3, p.
65. After considering the cases in which the right of title companies and abstracters had been
denied, he says: It is difficult, however, to reconcile the reasoning in some of the cases with
the spirit and general policy of the law, or with the claims of business convenience. The great
utility of the professional examiner is a recognized fact, and, with the constantly increasing
complications of land titles, his assistants in their proper adjustment has, in many localities,
become an absolute necessity.
VI. For consideration of the rights of the public in public offices in extreme cases, see
O'Hara v. King, 52 Ill. 303; Parsons v. Randolph, 21 Mo. App. 353.
William Forman, for Respondent:
I. At common law the right to inspect public records, either in person or by an agent, was
confined to those who had an interest in the subject-matter to which the record related. While
it seems that a person seeking an inspection of public records must have such an interest as
will enable him to maintain and defend an action for which the document can furnish
evidence or necessary information, it is not necessary that a case be pending at the time, nor is
it even essential that the interest of such person be private so that he can maintain an action or
defense on his own personal behalf; but it will be sufficient that he can properly act in
some action in relation to the matter as the representative of the common or public right.
behalf; but it will be sufficient that he can properly act in some action in relation to the matter
as the representative of the common or public right. (Ency. Law, 2d ed. vol. 24, p. 182; Rex v.
Merchant Tailors Co., 2 B. & Ad. 115; Brewer v. Watson, 71 Ala. 299; Daily v. Dimock; 55
Conn. 579; State v. King, 154 Ind. 621; Cormack v. Wolcott, 37 Kan. 391; People v. Walker,
9 Mich. 328; People v. Cornell, 35 How. 31; Owens v. Woolridge, 8 Pa. Dist. 305; Caswell's
Request, 18 R. I. 835.)
II. The right to inspect public records is not absolute and unrestricted, but must be
exercised subject to such reasonable restrictions as may be imposed by statute or by the
custodian of the records. (Stockman v. Brooks, 17 Colo. 248; Upton v. Catlin, 17 Colo. 546;
Buck v. Collins, 51 Ga. 395; Day v. Button, 96 Mich. 600; Burton v. Tuite, 78 Mich. 363;
Burton v. Reynolds, 102 Mich. 55; State v. Rachac, 37 Minn. 372; Hanson v. Eichstaedt, 69
Wis. 538.)
III. The right of an abstracter or abstract company incorporated for the purpose of
preparing abstracts from the various counties of the state does not seem to have ever been
passed upon by the courts of this state, and there is no power conferred by statute directly
authorizing the inspection of the public records and copying the same by such persons or
corporations. In the absence of any statute authorizing the copying of the records by such a
person or company the court must be governed by common-law rule in regard to the same.
Section 3095, Comp. Laws, is as follows: 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 courts of this state.
There are various statutes providing for the inspection of certain records by the public, but no
statute conferring upon an individual the right to inspect, search, or copy the records of the
county, such as is conferred by the statutes of the various states, which have held that an
abstracter corporation chartered for the purpose of making abstracts might examine and copy
the records.
George S. Green, Alfred Chartz, and T. A. A. Siegfriedt, for Relator, in reply:
I. The only statutory provision cited by the respondent in support of his contention is at
the bottom of page 17 and the top of page 18 of his brief, which provides certain fees for
making abstracts of title and searches of the records. Apparently it is not pretended by the
respondent that there are any provisions in the laws of Nevada making it his duty to compile
abstracts of title, and we have failed to find any. The qualifications of searchers of records are
not mean, and a candidate for the office of recorder is not bound to qualify with respect to
them. Recorders are not to be presumed to know the requisites of a sufficient abstract of title;
on the contrary, it is probable that one who enters upon the duties of the office of recorder
would more often not know than know. And not being his duty as required by law, he could
not be compelled to furnish an abstract if he should refuse.
II. Further reference is hereby made to statutes of the State of Nevada allowing the free
inspection of public records. (Stats. 1897, p. 78, sec. 3; Stats. 1891, p. 97, sec. 6; Stats. 1866,
p. 202, sec. 8; Comp. Laws, 1613.) For further support of the doctrine that the fee of an
official attaches only upon having performed some service for the individual, see Williams v.
State, 2 Sneed, 162; Henderson v. State, 96 Ind. 441.
By the Court, Talbot, J.:
To what extent is a company engaged in the business of furnishing abstracts and
guaranteeing titles allowed to inspect, examine, and copy the records in the office of the
county recorder, without the payment of fees, is the question presented.
From the petition, answer, and agreed statement of facts it appears that the respondent, as
county recorder, has refused, and unless ordered by this court will continue to refuse, to allow
the relator, or its duly authorized secretary and general manager, either for itself or as agent
for the owner of the property, to inspect, copy, or make memoranda of the record of a
specified certificate of mining location, and of a certain deed and the other records in the
office of the county recorder of Nye County; that the relator seeks, and has demanded, to
inspect and copy these records free of charge for the purpose of compiling an
independent set of abstract books covering all the property pertaining to these records
with the intention of supplying and selling abstracts to its customers.
of the record of a specified certificate of mining location, and of a certain deed and the other
records in the office of the county recorder of Nye County; that the relator seeks, and has
demanded, to inspect and copy these records free of charge for the purpose of compiling an
independent set of abstract books covering all the property pertaining to these records with
the intention of supplying and selling abstracts to its customers.
Respondent was and is willing to permit relator's agent to inspect the records for his
personal use and information, provided that he does not take any compensation or fees from
any other person for so doing, but refuses to allow him or the relator to inspect or copy the
records or the use of relator in preparing abstracts, except upon payment of the fees allowed
by law for making abstracts.
The relator, in the pursuit of its abstracting, record searching, and title guaranty business,
and for the purpose of preparing a set of abstract books, had engaged one man continuously
for three or four months in searching these records, taking memoranda and making copies,
and, if permitted, will continue for three or four months to keep one or more men engaged in
copying, searching, and taking memoranda, and, when the abstract books of relator are
completed, relator will demand the right to inspect and take memoranda from the records of
all conveyances thereafter filed, for the purpose of keeping up to date its abstract books and
for its use in compiling abstracts of title.
Relator claims that under our statutes and also under the common law it has a right to
examine and copy all these records. Respondent challenges both these contentions, and
asserts that, as no such privilege is conferred by statute, the common law controls and limits
the right of inspection to persons having an interest in the subject-matter to which the record
relates.
In seeking light and authority on these propositions, we first turn to the statutes, and find
provided in the Compiled Laws:
Sections 2663 and 2664: Every conveyance of real estate, and every instrument of writing
setting forth an agreement to convey any real estate, or whereby any real estate may be
affected, proved, acknowledged, certified and recorded in the manner prescribed, "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."
to convey any real estate, or whereby any real estate may be affected, proved, acknowledged,
certified and recorded in the manner prescribed, 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.
Section 2715: A mortgage upon possessory claims to public lands, all buildings and
improvements upon such lands, all quartz and mining claims, and all such personal property
as shall be fixed in its structure to the soil, acknowledged in manner and form as mortgages
upon real estate are required by law to be acknowledged and recorded in the office of the
county recorder in which the property is situated, shall have the same effect against third
persons as mortgages upon real estate.
Section 2705 directs the several county recorders to procure suitable books at the expense
of the county in which all chattel mortgages shall be recorded, and provides that such books
shall, at all times, be open to the public for inspection.
Section 2718: All instruments of writing now copied into the proper books of record of
the office of the county recorders of the several counties of this territory, shall, after the
passage of this act be deemed to impart to subsequent purchasers, and all other persons
whomsoever, notices of all deeds, mortgages, powers of attorney, contracts, conveyances or
other instruments, notwithstanding any defect, omission, or informality existing in the
execution, acknowledgment or certificate of recording the same.
Section 2730 provides that certain officers, including recorders, authorized by law to take
the proof or acknowledgment of the execution of conveyances of real estate or other
instrument required by law to be proved or acknowledged, shall keep a record of all their
official acts in relation thereto in a book to be provided by them for that purpose, in which
shall be entered the date of the proof or acknowledgment thereof, the date of the instrument,
the name or character of the instrument proved or acknowledged, and the names of each of
the parties thereto, as grantor, grantee, or otherwise. Said records shall, during business hours,
be open to public inspection without fee or reward.
Section 2736: All instruments of writing relating to mining claims now copied into books
of mining or other records, now in the office of the county recorders of the several counties of
this state, shall, after the passage of this act, be deemed to impart to subsequent purchasers
and incumbrancers, and all other persons whomsoever, notice of the contents thereof.
Section 3364 provides for notice of the pendency of an action, and that from the time of
the filing it shall be notice to all persons.
Section 3396 makes the record of conveyances in partition suits a bar against persons
interested in the property.
Section 2453 provides that filing with the recorder shall be deemed notice of the
appointments and revocations of deputy county officers.
Section 3304 provides that a transcript of the original docket of judgments in the district
court certified by the clerk may be filed with the recorder of any other county, and from the
time of the filing, the judgment shall become a lien upon the property of the judgment debtor
in such county, but does not direct the method or extent of inspection there; by section 3652
it is enacted that no judgment rendered by a justice of the peace shall create any lien upon
the lands of the defendant unless a transcript of such judgment certified by the justice is filed
and recorded in the office of the county recorder.
Section 2348 directs that certain newspapers be preserved by the recorders, and that
strangers and inhabitants of the county shall have access to the same at all times during
business hours, free of charge.
Section 2776 provides that the record of partnership certificates shall be open to public
inspection, and section 755 that estray notices shall be subject to examination by all
persons making application to the recorder.
Stats. 1905, p. 221, makes it the duty of the county and district recorders to keep a
receiving book in which they shall enter the name of each document in the order in which it is
filed, its number and date of filing, and the amount of fees collected for its recording or filing,
and the same is made the fee book of the recorder open to any one desiring to inspect.
the fee book of the recorder open to any one desiring to inspect.
There are other sections providing for the filing or recording in the office of the county
recorder of mining location notices (210, 232, and 238); proof of annual labor on mines
(217); notice of location of tunnel rights (228); location of mill sites (224); inventories of the
separate property of married women (512 and 513); marriage settlements (539); orders
relating to the rights and property of sole traders (546 and 547); certificates of tax sales
(1112); declarations of homestead (550); decrees setting apart homesteads (3040); copies of
writs of attachment (3223); certificates of sale on execution (3326); certificates for
construction of ditches and flumes (425); affidavits of service of notice to delinquent
cowners of mines (218); liens to mechanics, miners and others (2885); state engineer's list of
priorities of appropriations of water (Stats. 1903, p. 28, c. 4).
Section 1613 provides that certain records, and papers pertaining to elections, shall be
subject to the inspection of any elector.
Section 2483 requires officers to keep fee books open to the inspection of any one
desiring to inspect the same.
Under section 1212 the books of revenue officers are open to any person whomsoever to
inspect or copy, without any fee or charge.
There are provisions relating to other officers, for illustration, section 2110, directing that
the books, records, and accounts of the boards of county commissioners shall be kept by the
clerk, during business hours, open to public inspection free of charge; section 303, providing
that the plats, papers, and documents in the office of the state land register shall be open to
public inspection during office hours without fee therefor, and that county assessors shall
keep copies of township plats subject to the inspection of all persons interested in examining
the same; section 2114, requiring county auditors to keep a complete set of books showing
every money transaction of the county, which shall be open to the inspection of the public
free of charge; section 2148, providing for publicity by publication of the allowance of bills
against the county; section 232S, requiring county treasurers "at all times to keep their
books and office subject to the inspection and examination of the boards of county
commissioners"; section 4177 entitles grand juries "to the examination without charge of
all public records"; section 3303 requires that the docket of judgments in the district
courts "shall be open at all times during office hours for the inspection of the public
without charge," and that the clerk shall arrange the docket in such a manner as to
facilitate inspection.
bills against the county; section 2328, requiring county treasurers at all times to keep their
books and office subject to the inspection and examination of the boards of county
commissioners; section 4177 entitles grand juries to the examination without charge of all
public records; section 3303 requires that the docket of judgments in the district courts
shall be open at all times during office hours for the inspection of the public without
charge, and that the clerk shall arrange the docket in such a manner as to facilitate
inspection.
We have no statute similar to section 131 of the county government act in California
(Stats. 1897, p. 488, c. 277), which provides that all books of record, maps, charts, surveys
and other papers of file in the recorder's office, must, during business hours, be open for
inspection by any person, without charge; and the recorder must arrange the books of record
and indices in his office in such suitable places as to facilitate their inspection. Nor have we
any general act, such as prevails in a number of states, directing that all records in the offices
of county and township officers shall be open for inspection by the public. The provisions
regarding county recorders, sections 2340 to 2344, inclusive, are silent concerning such
examination.
Sections 2459 and 2471 designate the fees for abstracts of title for each document
embraced thereby, and for searching records and files for each document necessarily
examined, but contain no words either authorizing or prohibiting the making of abstracts or
searches by others than the recorder, or specifying whether he shall be entitled to
compensation if the work is not performed by himself or his deputies.
The decisions on similar questions in other jurisdictions rest largely upon statutes not in
uniformity with ours or with each other, and there is a lack of harmony among the opinions
not only in different states, but of the court and judges in the same state. We will consider
some of these cases more particularly, owing to the especial reliance placed by relator upon
Burton v. Tuite and Lum v. McCarty, infra.
In Webber v. Townley, 43 Mich. 534, 5 N. W. 971, 38 Am. Rep. 213, decided in 1880, all
the justices, including those of such high and widely recognized reputations as Cooley and
Campbell, held that there is no common-law right to make copies or abstracts of public
records for speculative purposes, as for the compilation of a set of abstract books for
selling abstracts of title; and that no such right was given by an act providing "that the
registers of deeds shall furnish proper and reasonable facilities for the inspection and
examination of the records and files in their respective offices, and for making
memorandums or transcripts therefrom during the usual business hours, to all persons
having occasion to make examination of them for any lawful purpose; provided, that the
custodian of such records and files may make such reasonable rules and regulations with
reference to the inspection and examination of them as shall be necessary for the
protection of said records and files, and to prevent the interference with the regular
discharge of the duties of said register; and provided further, that said register of deeds
may prohibit the use of pen and ink in making copies of notes of records and files."
such high and widely recognized reputations as Cooley and Campbell, held that there is no
common-law right to make copies or abstracts of public records for speculative purposes, as
for the compilation of a set of abstract books for selling abstracts of title; and that no such
right was given by an act providing that the registers of deeds shall furnish proper and
reasonable facilities for the inspection and examination of the records and files in their
respective offices, and for making memorandums or transcripts therefrom during the usual
business hours, to all persons having occasion to make examination of them for any lawful
purpose; provided, that the custodian of such records and files may make such reasonable
rules and regulations with reference to the inspection and examination of them as shall be
necessary for the protection of said records and files, and to prevent the interference with the
regular discharge of the duties of said register; and provided further, that said register of
deeds may prohibit the use of pen and ink in making copies of notes of records and files.
(Pub. Acts Mich. 1875, p. 51, No. 54.)
In Webber v. Townley, speaking for the court, Marston, C. J., said: We are of the opinion
that under the common law relators have not the right claimed. The right to an inspection and
copy or abstract of a public record is not given indiscriminately to each and all who may,
from curiosity or otherwise, desire the same, but is limited to those who have some interest
therein. What this interest must be we are not called upon in the present case to determine.
The question has usually arisen where the right claimed was to inspect or obtain a copy of
some particular document, or those relating to a given transaction or title. We have not been
referred to any authority which recognizes the right of a person under the common law to a
copy or abstract of the entire records of a public office in which he had no special interest; the
object in view being simply private gain from the possession and use thereof. Relators do not
ask for an inspection of a record or abstract thereof relating to lands in which they claim to
have any title or interest, or concerning which they desire information in contemplation of
acquiring some right or interest, either by purchase or otherwise.
some right or interest, either by purchase or otherwise. It is not as the agents or attorneys of
parties seeking information because interested or likely to become so. On the contrary, the
right is based upon neither a present nor prospective interest in the lands, but is for the future
private gain and emolument of relators in furnishing information therefrom to third parties for
a compensation then to be paid. It is a request for the law to grant them the right to inspect the
record of the title to every person's land in the county, and obtain copies or abstracts thereof,
to enable them hereafter, for a fee or reward, to furnish copies to such as may desire the
same.
Relator contends that this opinion was reversed by the same court in the leading case of
Barton v. Tuite, 78 Mich. 363, 44 N. W. 282, 7 L. R. A. 73, determined in 1889. Such is
conceded to be the effect in the language there, and in a number of decisions made later in
that and other states; but, in reality and stripped of dicta, it was held that salesbooks kept by
the receiver of taxes, containing a statement of the sales of delinquent tax lands, and by him
turned over to the city treasurer, who noted therein redemptions and sales, were public
records, and that relator, who had been employed by the owner of the property to examine in
regard to tax sales, or where these sales were liens upon property to which he was furnishing
abstracts, had the right to make such examinations of the public records as the necessity of his
business might require, and that this right was assured to him under Act No. 205, p. 286,
Laws Mich. 1889, which provides: That the officers having the custody of any county, city,
or town records in this state shall furnish proper and reasonable facilities for the inspection
and examination of the records and files in their respective offices, and for making
memoranda or transcripts therefrom, during the usual business hours, to all persons having
occasion to make examination of them for any lawful purpose, subject to conditions similar
to those quoted in the act of 1875 relating to registers.
In delivering the opinion, Morse, J., said: I do not think that any common law ever
obtained in this free government that would deny to the people thereof the right of free access
to, and public inspection of, public records.
to, and public inspection of, public records. They have an interest always in such records, and
I know of no law, written or unwritten, that provides that, before an inspection or
examination of a public record is made, the citizen who wishes to make it must show some
special interest in such record. I have a right, if I see fit, to examine the title of my neighbor's
property, whether or not I have any interest in it, or intend to have. I have also the right to
examine any title that I see fit, recorded in the public offices, for the purposes of selling such
information, if I desire. No one has ever disputed the right of a lawyer to enter the register's
office and examine the title of his client to land as recorded, or the title of the opponent of his
client, and to charge his client for the information so obtained. This is done for private gain,
as a part of the lawyer's daily business, and by means of which, with other labors, he earns his
bread. Upon what different footing can an abstracter be placed, within the law, without giving
a privilege to one man or class of men that is denied to another? The relator's business is that
of making abstracts of title, and furnishing the same to those wanting them, for a
compensation. In such business it is necessary for him to consult and make memoranda of the
contents of these books. His business is a lawful one, the same as is the lawyer's, and why has
not he the right to inspect and examine public records in his business as well as any other
person? It is plain to me that the legislature intended to assert the right of all citizens, in the
pursuit of a lawful business, to make such examinations of the public records in public offices
as the necessity of their business might require, subject to such rules and restrictions as are
reasonable and proper under the circumstances. The respondent in this case is the lawful
custodian of these salesbooks, and is responsible for their safe-keeping, and he may make and
enforce proper regulations, consistent with the public right, for the use of them. It follows that
he has no right to demand any fee or compensation for the privilege of access to the records,
or for any examination thereof not made by himself or his clerks or deputies. He has no
exclusive right to search the records against any other citizen. (Lum v. McCarty, 39 N. J. Law,
2S7; Boylan v. Warren, 39 Kan.
McCarty, 39 N. J. Law, 287; Boylan v. Warren, 39 Kan. 301, 18 Pac. 174, 7 Am. St. Rep.
551; State v. Rachac, 37 Minn. 372, 35 N. W. 7; People v. Richards, 99 N. Y. 620, 1 N. E.
258; Hanson v. Eichstaedt, 69 Wis. 538, 35 N. W. 30.)
Apparently these remarks met the approval of Chamberlin, J., who concurred without
qualification, but not of the majority of the court, for Campbell, J., whose concurrence in the
judgment made it effective, confined his opinion to the point that the relator had such an
interest under the act mentioned as entitled him to see the books in question. Sherwood, C. J.,
and Long, J., did not sit, and these statements may be considered as sanctioned by only two of
the five justices. The case rested upon the Michigan statute. No English or other decision was
cited that supported the assertion of Justice Morse that he knew of no common law that
denied the right of free inspection or required the citizens desiring to make it to show some
interest in the record. Although this language is interesting as a statement of the opinion of an
able member of a court of high standing, it was not only unnecessary for the determination of
the case as controlled by legislative enactment, and unsupported by any authority excepting
the concurrence of one of the justices, but it was a begging of the question, for, if no common
law prevails in this country which prevents, and there is no decision sustaining the right of an
abstract company or others to inspect or copy all the records in which it, or they, have no
interest as owner or agent, it is evident that no such right exists unless granted by statute.
With no decision conceding or denying such right, nothing appears on which to base the
assumption that it is authorized by common law. The same may be said regarding the force of
similar expressions quoted in the brief from other opinions.
In Day v. Button, 96 Mich. 600, 56 N. W. 3, it was held that the right to examine the
records in the office of the register of deeds, and to make memoranda therefrom, for the
purpose of making a set of abstract books, was established by Burton v. Tuite, supra; but, as
we have seen, the majority of the court did not go so far in the earlier of these cases. This
doctrine as broadened is better warranted by the statute in that state.
Distinguishing those cases and the records in the office of the register from those in suits
between individuals, subsequently, in Burton v. Reynolds, 110 Mich. 354, 68 N. W. 217, the
court refused a writ of mandate to compel the clerk of the circuit court to permit one engaged
in making abstracts of title to examine and copy a file in an action relating to land between
private parties, upon a petition which negatived constructive notice of the pendency of the
action, and did not assert actual notice, nor state that the examination and copying of the file
was necessary to the interest of his employer, although it did state that it was necessary to the
completion of the relator's work.
In Brown v. County Treasurer, 54 Mich. 132, 19 N. W. 778, 52 Am. Rep. 800, the citizen
seeking and refused inspection of liquor bonds filed with the county treasurer, and wishing
information that would aid in a prosecution for an infraction of the law, had a different
interest than one man has in the title to another's property.
In Lum v. McCarty, 39 N. J. Law, 287, a leading case cited to support the opinion in
Burton v. Tuite, above, the court overruled Flemming v. Clerk of Hudson County, 30 N. J.
Law, 280, and held that county clerks were not entitled to fees for searches not made by
themselves or assistants of the records in their offices, of deeds, mortgages, and judgments.
The statute provided for access to the records excepting those of judgments in the circuit
court. The action was for the recovery of fees paid by the plaintiff's attorney under protest,
when he was refused inspection until he paid the same fees for the privilege of examining the
records that the clerk would have been entitled to charge if he had made the examination. In
justification of, and by way of distinguishing, a subsequent decision by the Supreme Court of
New Jersey, to which we shall refer later, it is proper to observe that the issue presented did
not relate to the right of an abstract company or person without interest to copy or examine all
the records. This should be borne in mind in considering the weight to which the opinion is
entitled as bearing on the different issue with which we are confronted.
The case is more directly applicable to the question whether one authorized by statute
under the designation of "all persons" and having an interest in property, may have his
attorney search the records without the payment of fees.
one authorized by statute under the designation of all persons and having an interest in
property, may have his attorney search the records without the payment of fees. The court
said: By the third section of the Act to regulate fees' (Nix. Dig. p. 322) provision is made
for the compensation of county clerks for certain services, among which is the searching of
the records in their offices. The provision cannot be extended by construction, so as to
authorize a demand by the clerk for pay for services not in fact rendered by him or his
assistants. The defendant, therefore, was not entitled to the fees in question, under that
provision. The only other provisions which are claimed to have a bearing on the question are
the ninth section of the Act respecting conveyances,' which, after providing for the recording
of deeds in books to be furnished for the purpose, adds to which books every person shall
have access, at proper seasons, and be entitled to transcripts from the same, on paying the fees
allowed by law' (Nix. Dig. p. 146), and the first section of the Act to register mortgages,'
which, after like provision for registering mortgages of lands in proper books, adds to which
books every person shall have access, at all proper seasons, and may search the same, paying
the fees allowed by law' (Nix. Dig. p. 610). It is also suggested that the absence of any
provision for access by the public to the records of judgments of the circuit courts favors the
charge, so far as the records of those judgments are concerned. No authority for taking fees
for searches not made by himself or his assistants is to be derived by the clerk from either of
the above-quoted provisions. The first, while it provides for compensation for transcripts,
contains no qualification of the right of the public thereby declared to access to the records,
and it authorizes no charge whatever in connection with the exercise of that right. Though the
language of the other may seem to qualify the right to search with the necessity of paying
fees, yet the obvious construction of the provision is that the fees for search are to be paid
only when the search is made by the clerk or his assistants. The right of the public to free
access to the records carries with it the right to search without charge for the privilege. Nor
can a claim on the part of the clerk to fees for a search not made by himself or his
assistants, in the records of the judgments of the circuit court in his office, be justified by
the fact that no special provision is made for access by the public to those records.
part of the clerk to fees for a search not made by himself or his assistants, in the records of the
judgments of the circuit court in his office, be justified by the fact that no special provision is
made for access by the public to those records. They are no less free to the public, by reason
of the absence of a provision declaring the right. They are, in fact, public records, and are
public property, kept in a public place, at the public expense, for the public benefit. For the
convenience of the public in examining them, the law provides for the making of proper
indexes of their contents. (Nix. Dig. Practice Act,' p. 729, par. 77.) The law expressly
provides for free access by the public to the records of attachments, notices of lis pendens,
circuit court judgments docketed in the supreme court, and judgments of justices' courts
docketed in the courts of common pleas. (Nix. Dig. pp. 39, 112, 442, 474.) The clerk is the
lawful custodian of the records, and indexes thereto, and is responsible for the safe-keeping
thereof. His powers over them are such as are necessary for their protection and preservation.
To that end, he may make and enforce proper regulations consistent with the public right for
the use of them. But they are public property, for public use, and he has no lawful authority to
exclude any of the public from access to, and inspection and examination thereof, at proper
seasons and on proper application. The clauses which declare the public right in this behalf
employ the most comprehensive and general language: All persons desiring to examine the
same.' Every person shall have access.' It follows that the clerk has no right to demand any
fee for the privilege of access to the records and indexes, or for any examination thereof not
made by himself or by his assistants.
In Ferry v. Williams, 41 N. J. Law, 332, 32 Am. Rep. 219, it was held that every person is
entitled to the inspection of documents of a public nature, provided he has the requisite
interest. The court enforced by mandamus in favor of a citizen the right of inspection of
letters of recommendation filed as a basis for the issuing of licenses. In principle the case is in
some respects like the one before us, because the New Jersey statutes did not provide for the
examination of these letters, but did for the inspection of many other records as we have
seen.
these letters, but did for the inspection of many other records as we have seen. The following
extracts from the opinion are also instructive regarding the controlling and disputed point in
the common law: The documents in question are of a public nature, and the rule is that every
person is entitled to the inspection of such instruments provided he shows the requisite
interest therein. And as Lord Denman remarks, in Rex v. Justices of Staffordshire, 6 A. & E.
84, the court is by no means disposed to narrow its authority to enforce by mandamus the
production of every document of a public nature in which any citizen can prove himself to be
interested. For such persons, indeed, every officer appointed by law to keep records ought to
deem himself for that purpose a trustee. The relator asserts no interest to be subserved by an
inspection of these letters, except that common interest which every citizen has in the
enforcement of the laws and ordinances of the community wherein he dwells. In England, the
occasions which generally have required the exercise of the power of the court to enforce
inspection of public documents have been those where a party has sought evidence for the
prosecution or defense of his rights in pending litigation. In such cases, when the custodian of
the documents was a party in the cause, the court usually intervened by rule, otherwise by
mandamus. But the existence of a suit was not a sine qua non for the exertion of a power. In
Rex v. Lucas et al., 10 East, 235, a mandamus was sought to compel the steward of a manor
to permit one claiming certain copyhold lands within the manor to inspect the court rolls and
take copies. The lord, claiming himself to be the owner of the lands, resisted, on the ground
that there was no cause depending, but the Court of King's Bench granted the writ,
notwithstanding the opinion before expressed in Rex v. Allgood, 7 T. R. 742; Lord
Ellenborough saying: I do not know why there should be any cause depending in order to
found an application of this sort. This is not the impertinent intrusion of a stranger, but the
application of one who is clearly entitled to the copyhold, unless there be a conveyance of it
by those under whom he claims; he may therefore well require to see whether there appears
upon the rolls to be any such conveyance.' So in Rex v. Tower, 4 M.
whether there appears upon the rolls to be any such conveyance.' So in Rex v. Tower, 4 M. &
S. 162, on a controversy, but without suit, between a tenant of the manor and the lord, as to
cutting underwood, the court granted a mandamus to inspect the court rolls so far as related to
that subject. Likewise in Rex v. Justices of Leicester, 4 B. & C. 891, a mandamus was granted
that certain ratepayers be allowed to inspect and take copies of the proceedings and
documents relating to the parish rates, although no suit was pending; and, while this case is
disapproved in Rex v. Vestryman of St. Marylebone, 5 A. & E. 268, and overruled in Rex v.
Justices of Staffordshire, 6 A. & E. 84, yet in neither case is it suggested that it was erroneous
because no action had been brought. The disapprobation turns upon the principle that the
ratepayers had no interest to be subserved by the inspection, since no information to be
obtained from the documents could aid them in the enforcement or protection of any lawful
claim; Lord Denman saying, in the case last cited, that the subject-matter was not one which
the ratepayer could bring before the court as a litigant, and hence there was not that direct and
tangible interest which is necessary to bring persons within the rule on which the court acts in
granting inspection of public documents. In Rex v. Merchant Tailors' Co., 2 B. & Ad. 115,
although a mandamus was refused to members of the company seeking an inspection of all
the records, books, papers, and muniments of the company, because of the generality of the
application, it was conceded by all the judges that, if the application had been limited to some
legitimate and particular purpose in respect of which the examination became necessary, it
would have been allowed, and that there was no rule that to warrant an order to inspect
corporation documents there must actually have been a suit instituted. But whenever the
subject was, by reason of his relation to the common interest, permitted to litigate for its
protection, the right of inspection was fully secured to him. Thus, in Rex v. Shelley, 3 T. R.
141, where some of the burgage tenants were testing by quo warranto the right of the
defendant to be a burgess, a full inspection of the court rolls, not limited to the evidence of
their own titles, was granted them.
of their own titles, was granted them. In Rex v. Babb, 3 T. R. 579, on an information by three
aldermen to inquire into the right of Woolmer to be mayor of Great Grimsby, the relators had
a rule for the inspection and copies of all the public books, records, and papers of the borough
of Great Grimsby regarding the subject in dispute.
In West Jersey Title and Guaranty Co. v. Barber , 49 N. J. Eq. 474, 24 Atl. 381, it was
held that an abstract company has the same rights as an attorney or individuals to search the
county records for others, and, when employed to examine the title to any particular piece of
property, becomes subrogated to the right of the employer to have access to them,
notwithstanding it contemplates making a contract of guaranty of the title.
In Barber v. West Jersey Title and Guaranty Co., 53 N. J. Eq. 158, 32 Atl. 222, decided in
1894, five years after Burton v. Tuite, the complainant claimed the right to have free access to
the records and files daily during business hours for the purpose of inspecting and making
abstracts and memoranda. It was held that every person has the right to examine the public
records relating to any title in which he is interested, without the payment of fees, subject to
reasonable rules and regulations, and that the abstract company has this privilege when
employed to examine and guarantee the title to a particular piece of property, but has not the
right to occupy the office of the clerk for the purpose of making an abstract of the records in
order to set up a rival business to the clerk. In considering the following portion of the
opinion, it is well to remember the New Jersey statutes providing for inspection, as before
noted: The case of Lum v. McCarty, 39 N. J. Law, 287, is relied upon to support this decree.
In that case Lum was employed to search a specific title, and this court held that he had a
right of access to the records in the clerk's office, for that purpose, without the payment of
fees to the clerk. But that case is not authority for the contention that any one may occupy the
offices of the county clerk until he has made copies of all the records in the care of the clerk
for the purpose of setting up a rival office, whereby he will be deprived of the emoluments of
his office. It is conceded that the corporation complainant is entitled to the same right of
access to, and examination of, the public records of the county as an individual would be.
ceded that the corporation complainant is entitled to the same right of access to, and
examination of, the public records of the county as an individual would be. Our act respecting
conveyances, after providing for the recording of deeds in books to be furnished for that
purpose, adds, to which books every person shall have access at proper seasons, and be
entitled to transcripts from the same on paying the fees allowed by law.' Lum v. McCarty,
supra, construed this provision to mean that fees were to be paid to the clerk only when he
made searches himself, and did not preclude a person interested from making searches for
himself. The law makes it the duty of the clerk to take care of the public records in his office,
but gives him no special fees for such service. The only compensation to him are the fees he
receives in the ordinary course of his business for searches. To extend the right of search by
others beyond this limit will deprive the clerk of the only remuneration he can have for the
performance of this duty. In the absence of clear expression, it should not be so enlarged by
construction. In other states where the statutory provisions are less favorable to the public
officer, the courts have denied the right of any one to make at will an abstract of the official
records. The respondent, by force of its incorporation, has the same right to inspect the public
records which may lawfully be exercised by an individual. Every person, without legislative
authority, may engage in the business of examining and guaranteeing titles as fully as this
company is empowered to do by its act of incorporation. When such a person or a company,
with such authority, is empowered to examine and guarantee a particular title, the clerk, upon
demand, is bound to give access to the records for that purpose, subject to reasonable rules
and regulations.
In Fidelity Trust Co. v. Clerk, 65 N. J. Law, 495, 47 Atl. 451, the court sustained the
refusal of the clerk to permit an examination of certain indices in the supreme court relating
to judgments which were a lien upon lands.
In Newton v. Fisher, 98 N. C. 23, 3 S. E. 823, it was said in the opinion: All persons have
the right to inspect these records freely and without charge, and all persons, who may desire
to do so, can get copies by paying the prescribed fees.
desire to do so, can get copies by paying the prescribed fees. It is the duty of the register to
keep them open to the inspection and examination of all who may desire to inspect and
examine them, and for this there is no fee; it is his duty to furnish copies to all who require
them and will pay the fees allowed. Perhaps, in addition to this, so long and so universal has
been the custom, that it may be said to be the right of lawyers, and others needing them, to
take such reasonable memoranda as may not interfere with the rights and duties of the
register, and we have never known this refused. We know of no law that requires the register,
in this respect, to do more. No one has the right, to use the language of the learned judge in
the court below, to make copies or abstracts of the entire record of the office, including those
instruments in which the person so desiring to make abstracts is not at the time interested, but
simply anticipates that he will at some time be interested, and abstracts of which he desires to
make for merely speculative purposes. In this view the plaintiff would be entitled to every
facility for the legitimate prosecution of his business by access to the records for the
examination of instruments registered, but the court is not satisfied of his right to make an
abstract to all transfers of real and personal property for the year 1886, without having an
interest in the same, for the prosecution of his business, or paying any fee therefor.'
In Randolph v. State ex rel., 82 Ala. 527, 2 South. 714, 60 Am. Rep. 761, following
Brewer v. Watson, 71 Ala. 299, 46 Am. Rep. 318, and Phelan v. State, 76 Ala. 49, it was held
that section 698 of the Code of 1876, providing that the records of the judge of probate's
office must be free for the examination of all persons, when not in use by him, conferred the
right of free examination of the records, by any person having an interest, his agent, or
attorney, and the right to take memoranda or copies, but did not extend to attorneys or other
persons engaged in negotiating loans on real estate, and who desired to make an abstract from
the records of conveyances of the titles to all the lands in the county, for future use when
required in their business. Stone, C. J., speaking for the court, said: It is not the unqualified
right of every citizen to demand access to, and inspection of, the books or documents of a
public office, though they are the property of the public, and preserved for public uses and
purposes.
unqualified right of every citizen to demand access to, and inspection of, the books or
documents of a public office, though they are the property of the public, and preserved for
public uses and purposes. The qualification of the rule is that no person can demand the right
save those who have an interest in the record, their lawful agents, or attorneys. We must not,
however, be understood as intending to abridge the right, conferred by statute, of free
examination,' by all persons having an interest, of the records of the probate judge's office.
Nor will we confine this right to a mere right to inspect. He may make memoranda, or copies,
if he will, and, to this end, may employ an agent or attorney. The limitation is that he must not
obstruct the officers in charge in the performance of their official duties, by withholding
records from them, when needed for the performance of an official function. Nor is this right
of examination confined to persons claiming title, or having a present pecuniary interest in
the subject-matter. It will embrace all persons interested, presently or prospectively, in the
chain of title, or nature of incumbrance, proposed to be investigated. The right of free
examination is the rule, and the inhibition of such privilege, when the purpose is speculative,
or from idle curiosity, is the exception.
In State ex rel. v. King, Auditor, 154 Ind. 621, 57 N. E. 535, it was held that a citizen and
taxpayer of the county has such an interest as entitles him to examine the records and papers
in the county auditor's office for the purpose of ascertaining the condition of the fiscal affairs
of the county. The court stated: The general rule which obtained at common law was that
every person was entitled to an inspection of public records, by himself or agent, provided he
had an interest in the matters to which such records related. Where, however, the inspection
desired was merely to gratify idle curiosity, or motives which were purely speculative, the
right of inspection, under the common law, was denied. The right to inspect the records in
question also impliedly awards to the person entitled to it sufficient time, under the
circumstances, in which to make the inspection for the purpose contemplated. We are
constrained, therefore, to conclude that the relator in this case, under the facts, is entitled
to inspection which he demands, and also entitled to make such copies and abstracts of
the records as may avail him in carrying out the purpose of his examination."
that the relator in this case, under the facts, is entitled to inspection which he demands, and
also entitled to make such copies and abstracts of the records as may avail him in carrying out
the purpose of his examination.
Under the Code of Georgia of 1873 (section 14), declaring that all books kept by any
public officer shall be subject to the inspection of all citizens, within office hours, and the fee
bill (section 3695), providing, for each inspection, when the clerk's aid is required,
twenty-five cents; for examination of books and abstract of result, one dollar, the right to
make an abstract of the books for publication was denied. The court said in Buck v. Collins,
51 Ga. 393, 21 Am. Rep. 236: Under these laws, the complainant insists that he has a right
to go into the clerk's office, during office hours, from day to day and from month to month, at
his pleasure, copy from the books, when they are not in use, at his option, and thus collect
material for a book which he proposes to publish for sale. As he is able, by employing an
expert to do this inspection and compilation himself, without the assistance of the clerk, he
insists that no fee is required, and as the clerk refuses to permit him to go on with his
enterprise, except upon the payment of a fee for each separate investigation of a title, he prays
that the clerk may be enjoined. We agree with Judge Hopkins. We think the complainant has
no such right as he insists upon. The necessities of society, and the protection of those dealing
with property, require that these records shall exist. That the title to land, the fact that
mortgages or judgments exist, shall be capable of being inquired into by those interested. The
character of one's title, and whether one has mortgages or judgments against him, is thus of
necessity open to inquiry, and the public, by providing books and records, meets this
necessity. The object of the record is to furnish to those needing it the information the record
contains. That object is attained when its books are open to inquiries as these occasions
present themselves. All laws are to be reasonably construed in view of the object of them, and
in view of other laws. It is contemplated that lawyers, public officers, and persons familiar
with the books, by having frequent occasion to use them, may not need the clerk's
assistance for the purpose.
them, may not need the clerk's assistance for the purpose. The clerk cannot charge a free for a
mere inspection, where his aid is not required. But no person has a right to examine or inspect
the records of his office, except in his (the clerk's) presence, and under his observation.
In Clay v. Ballard, 87 Va. 787, 13 S. E. 262, the contention was regarding the right of a
citizen to take copies of the registration books under a statute providing for public inspection.
It was held that, although the registrar was allowed no compensation for time lost in so doing,
yet he would be compelled by mandamus to allow any citizen to inspect and take copies of
these books, and that every citizen had an interest in them. The court said: These books,
undoubtedly, are of a public nature, and therefore, upon general principles, independently of
any statute on the subject, any person having an interest in them would have a right to inspect
them. But the legislature, out of abundant caution, and with an unmistakable object in view,
has seen fit to enact expressly that they shall at all times be open to public inspection.' (Code
1887, sec. 84; Va. Code 1904, p. 51.) The case turns upon the construction of this statute. At
common law, the right to inspect public documents is well defined and understood. The
authorities on the subject are very numerous, and they uniformly hold that such a right
includes the right, when necessary to the attainment of justice, to take copies. Greenleaf, than
whom there is no more accurate textwriter in modern times, lays it down that the inspection
and exemplification of the records of the king's court is, and from a very early period has
been, the common right of the subject. And, as to other public documents, the custodian of
them, he says, will, upon proper application, be compelled by mandamus to allow the
applicant to inspect them, and, if desired, to take copies. (1 Greenl. Ev. secs. 471, 478.)
Tidd, in his Practice, gives it as a general rule, well settled, that a party has a right to inspect
and take copies of all such books and records as are of a public nature wherein he has an
interest. (1 Tidd's Pr. 593.)
Under a statute providing that all books and papers required to be in the office of county
officers shall be open for the examination of any person," it was held, in Cormack v.
Wolcott, 37 Kan.
for the examination of any person, it was held, in Cormack v. Wolcott, 37 Kan. 391, 15 Pac.
245, and in Boylan v. Warren, 39 Kan. 304, 18 Pac. 174, 7 Am. St. Rep. 551, that the register
of deeds would not be compelled to permit any person to make copies of the entire records
for the purpose of making a set of abstract books for private use or speculation. A similar
decision was made upon a similar act in Bean v. People ex rel., 7 Colo. 200, 2 Pac. 909, and
later this rule was changed in that state by an explicit statute allowing copies to be so taken.
(Stocknan v. Brooks, 17 Colo. 248, 29 Pac. 746.)
Under chapter 74, Comp. Stats. Neb. 1903, declaring that all citizens of this state and all
other persons interested in the examination of the public records are hereby fully empowered
and authorized to examine the same, free of charge, during office hours, it was held that an
attorney in fact of a party to a suit had a right to examine the entries relating to a judgment of
a justice of the peace, and had such an interest as entitled him to a transcript.
By statute, in New York, abstract companies are entitled to free access to, and to copy, the
records. (People ex rel. Guaranty Co. v. Reilly, 38 Hun, 431; People v. Richards, 99 N. Y.
620, 1 N. E. 258.)
Under section 700, Rev. Stats. Wis. 1898, providing that the register of deeds shall open
to the examination of any person all books and papers required to be kept in his office, and
permit any person so examining to take notes and copies of such books, records or papers, or
minutes therefrom, it was held that this right was not limited to lands in which such person
or his clients were pecuniarily interested, and that any person might examine and take notes
and copies of the record for use in making abstract books. The court said: In so far as the
Alabama and Michigan courts may have indicated that a statute giving certain enumerated
rights respecting records to any person' is a mere confirmation of a rule at common law,
giving similar rights to only a particular class of persons, we must decline to follow them.
State v. Rachac, 37 Minn. 373, 35 N. W. 7, is a fair sample of the class of cases which
uphold the right of abstract companies to copy all the records, and illustrative of the fact that
this privilege is conferred only by plain legislative enactment.
that this privilege is conferred only by plain legislative enactment. The court said: The
counsel for appellant plants himself squarely upon the broad proposition that respondents are
not entitled to any such privileges, because they have no interest in the records which they
desire to examine. His contention may be briefly stated thus: (1) At common law no person
had a right to examine or copy the records in a public office in which he had no interest,
present or prospective; (2) that the statute does not extend this right to others, but merely
regulates its exercise by those who already possessed it at common law. Conceding that the
rule at common law was as stated, the question is, how far has this been changed by Gen.
Stats. 1878, c. 8, sec. 179, as amended by Laws 1885, p. 108, c. 116? We think the matter is
entirely put at rest by the amendment of 1885. It is a matter of common knowledge that, at the
time this amendment was passed, in a large majority of counties in this state, persons had
engaged in the abstract' business, and at much expenditure of time and money had prepared,
or were preparing, these abstract books or tract indexes.' These abstract offices, if properly
conducted, are of great public convenience. Under this state of affairs, the legislature enacted
the amendment referred to, which throughout bears clear evidences of being intended to
define and fix the right of all who might desire to make copies of or abstracts from any of
these records. The original statute gave to every one demanding it the right to inspect' these
records. But, as there might be a doubt as to what the right of inspection included, the
amendment adds either for examination, or for the purpose of making or completing an
abstract or transcript therefrom.'
In Vermont, under a statute providing that the books of record of justices of the peace
should at all times be subject to the inspection of any person interested in such record, it was
held that a citizen was not entitled to see the complaint and warrant in a criminal proceeding.
(Perkins v. Cummings, 66 Vt. 486, 29 Atl. 675.)
By statute, in Connecticut, coroners are required to reduce to writing, and return to the
clerk of the superior court, the testimony of witnesses at inquests, with his findings.
testimony of witnesses at inquests, with his findings. The court held, three of the justices
concurring, and two dissenting, that these documents in the hands of the clerk were open to
inspection by the defendant charged with the crime, and by all persons interested. (Daly v.
Dimock, 55 Conn. 579, 12 Atl. 405.)
In State ex rel. v. Hoblitzelle, 85 Mo. 624, the court stated: While we regard the poll
books as belonging to that class of public records open to inspection when the applicant who
desires to inspect them shows that the purpose of the inspection is to vindicate some public or
private right, the courts will by mandamus compel the inspection, on condition that the
inspection be made under such reasonable rules and regulations as the court or officer having
them in charge may impose.' Whether mandamus will or will not lie to compel an inspection
of poll books, when it is sought simply for the gratification of curiosity without any purpose
to vindicate either a private or public right, is not necessary to determine in this proceeding,
as it does not present such a case. The relator claims that, by reason of his receiving a
majority of the votes cast at the election, he acquired a right to the office of city marshal, and
desires the inspection asked for as a means of enforcing this right.
In Payne v. Staunton (W. Va.), 46 S. E. 927, decided in 1904, it was sought to inspect the
poll books of a special election, and the court held that a pecuniary interest in an individual in
the act sought to be compelled by mandamus must exist to maintain it, that inspection is not a
right vested in every person or under all circumstances, and that the person asking it must
have an interest in the record or paper of which examination is sought.
In Marsh v. Sanders (1903), 34 South. 752, 110 La. 726, it was held that the right to
inspect the book in which the sheriff was required to enter names of all persons paying poll
taxes carried with it the right to make copies from the book, and that, while the sheriff was
entitled to make reasonable rules for the orderly conduct of his office, he could not make a
rule which would deny or abridge the right to inspect and make copies.
In State ex rel. v. Reed, 36 Wash. 638, 79 Pac. 306, it was held that a general demand by a
citizen for an inspection of any and all books of public records in the office of the county
treasurer could not be made the basis for a writ of mandate.
In Pennsylvania, it has been held that, in the absence of legislation, records, although
public in their nature, are not open to inspection except to those who have a definite interest
in them. (Owens v. Woolridge, 8 Pa. Dist. R. 305.)
In Herbert v. Ashburner, 1 Wils. 297, the court said that the books of the sessions of the
corporation of Kendale were public, and that everybody had a right to see them, and, in Rex v.
Chapham, 1 Wils. 305, that the books of the poor's rates were public and ought to be
delivered by one overseer to another, that all the parishioners might have access to them. It is
apparent that in these cases members of the body politic had, and were deemed to have, an
interest which entitled them to see these books.
In King v. Shelley, 3 Term R. 142, and Talbot v. Villebeys, M. 23 Geo. III, B. R. it was
said: That the defendant was not entitled to an inspection, for one man has no right to look
into another's title deeds and records, when he has no interest in the deeds or rolls himself, as
tenants of a manor have.
In King v. Babb, 3 Term R. 580, Lord Kenyon, C. J., said: This, therefore, is like the case
of an application by a stranger to the corporation. And in such a case I think we should
transgress the line of our duty, if we were to grant a general unlimited inspection of all papers
respecting the corporation.
Inspection of records in criminal cases was refused in King v. Purnell and King v.
Cornelius, 1 Black. 27, 1 Wils. 239.
In Sloan Filter Co. v. El Paso Co. (C. C.), 117 Fed. 504, it was held that users of machines
claimed to infringe a patent had such an interest in a suit between other parties in which the
validity of the patent is in issue as entitled them to inspect and to have a copy of the court
records. Hallett, J., said: If strangers to the suit can be in any manner or to any extent bound
by the result, they ought to be at liberty to inquire how the controversy is carried on.
to inquire how the controversy is carried on. At the bar it was said that this petition is without
precedent. This may be true in respect to the circumstances of this case, but the matter of
inspecting and taking copies of public records is as old in the law as the records are old. In
English law tenants of a manor could always inspect the court rolls and books of the manor in
order to ascertain their titles. (Rex. v. Shelley, 3 Term R. 141.) So, also, where the authority of
a mayor was in question, citizens could inspect the books and papers of the borough in order
to determine the fact. (Rex. v. Babb, 3 Term R. 579.) These cases and others support the
common-law rule that a party may have inspection of any document or paper in which he may
be interested. (1 Whart. Ev. par. 745.)
Act Cong. Aug. 12, 1848, c. 166, 9 Stat. 292, provides that all books in the office of the
clerks of the Circuit and District Courts of the United States, containing the docket of the
judgments or decrees, shall, during office hours, be open to the inspection of any person
desiring to examine the same without any fee or charge therefor. Act Feb. 26, 1853, c. 80, 10
Stat. 163, allows the clerk a certain fee for searching the records for judgments or decrees.
Act Aug. 1, 1888, c. 729, 25 Stat. 357, provides that the indices and records of judgments,
that the clerk is by that act required to keep, shall at all times be open to the inspection and
examination of the public.
In Re Chambers (C. C.), 44 Fed. 786, it was held that these provisions secure to the
citizens the right to examine these records free of charge, and the clerk is entitled to the fee
only when he is required to make the search himself.
Under the acts of Congress mentioned it was held that a corporation engaged in the
business of insuring titles had the right to examine the indices and cross-indices of judgments
kept by the clerks of United States Circuit and District Courts, when such examination relates
to current transactions, and does not interfere with the right of other persons who have access
to them. (Commonwealth Title and Trust Co. v. Bell (C. C.), 105 Fed. 548, affirmed
Commonwealth Title and Trust Co. v. Bell, 110 Fed. 828, 49 C. C. A. 208, affirmed {1903)
1S9 U. S. 131, 47 L. Ed. 741, 23 Sup. Ct. 569.)
(1903) 189 U. S. 131, 47 L. Ed. 741, 23 Sup. Ct. 569.) It was said, 49 C. C. A. 209, and 110
Fed. 829: We do not regard it at all material that the words without any fees or charges
therefor' are not repeated in the act of 1888. Under the decree the title insurance company
was given no general access to the judgment indices, but simply the right of inspection and
examination in particular transactions at the time current or pending.
Although the opinions in such cases as State v. Donovan, 10 N. D. 209, 86 N. W. 709,
State v. Cummins, 76 Iowa, 136, 40 N. W. 124, and Johnson v. Wakulla Co., 28 Fla. 731, 9
South. 690, cited by relator, contain statements which seem germane here, the issues in those
cases were different, and did not relate to the right of inspection, nor of the recorder or officer
to collect fees. There is room for a controlling distinction between the admissibility in
evidence of original or certified copies of public records, and the right to examine and copy
them without charge by abstracting companies or others, without interest in the property or
authority from the owners, for the purpose of duplicating the records and equipping an office
in rivalry to the recorder. Nor are Nash v. Lathrop, 142 Mass. 35, 6 N. E. 559, Banks & Bros.
v. West Pub. Co. (C. C.), 27 Fed. 50, and other cases cited upholding free inspection of
legislative enactments, strictly apropos. It is apparent that reasons and necessities exist for the
open examination and speedy publications of laws in which all are interested, and by which
all are bound, that do not prevail in regard to private titles, and uniformly the courts have
allowed inspection of public laws. Records of court proceedings concerning private affairs,
the publication of which could only serve to satiate a thirst for scandal, constitute another
class regarding which there are often stronger reasons for denying examination by
disinterested persons, than of instruments pertaining to land. (Burton v. Reynolds, supra; In
re Caswell's Request, 18 R. I. 835, 29 Atl. 259, 27 L. R. A. 82, 49 Am. St. Rep. 814.) See
Colnon v. Orr, 71 Cal. 43, 11 Pac. 814.
Again, there is reason for distinguishing from the case at bar that of People v. Cornell, 47
Barb. 329, reversing 32 How.
How. Prac. 149, and the English cases cited in connection therewith, upon which so much
reliance is placed. A member of a municipal corporation may have an interest, not special, but
in common with others, that entitles him to inspect its records, which is quite different from
what one man has in the private land titles of others, and the English cases we have
mentioned, a part of which are relied upon by relator, indicate this distinction.
It is said that during the memory of us all it has been the custom in this state to allow free
inspection of the records. This is undoubtedly true, but the examinations have generally been
limited in their nature and made by persons having some interest in the property to serve, or
by attorneys or others acting in their behalf. It has not been customary for any one to inspect,
copy, or duplicate all the records in the offices of the county recorders, and, with one
exception, so far as we are aware, no one but relator has ever sought this privilege in this
commonwealth. From a review of the cases it is apparent that there is much conflict as to
whether, under statutes such as we are seen to have relating to some records and providing for
inspection by the public, or by all persons desiring, the right of examination should be limited
to those having some interest, present or prospective, in the property to which the record
relates, or should be freely extended to all. It may be noted that our statutes relating to the
records of deeds, real estate mortgages, and most conveyances do not contain provisions for
inspection which bring them under either class of these conflicting decisions. The principle
involved has been befogged by many inadvertent statements of judges, but no case is found in
the common law, and none in this country, which sustains the right of an abstract or title
guaranty company or of an individual to copy or examine all the records relating to private
land titles, excepting decisions based on statutes clearly giving that right and containing terms
which do not prevail in this state.
The juridical assertions that records such as these were public and open to the inspection
of all persons were in states with legislative enactments so declaring, or were in actions where
inspection was denied to the owner or his agent, or to some one claiming a common or
public interest in the record, or which related to evidence or questions of public policy, or
issues not involving the right to examine or copy all the records relating to lands.
agent, or to some one claiming a common or public interest in the record, or which related to
evidence or questions of public policy, or issues not involving the right to examine or copy all
the records relating to lands. And, further, if it be conceded that these records are public and
open to public inspection, as has been said, it may still be held that they are public only to that
extent that they may be freely examined by all persons having any interest in the property
affected by them, or under the ordinary rules of agency by the attorney or representative of
persons so interested.
The filing and recording of documents relating to private titles is at private expense, and,
although the records regarding them are public, they may not be considered so in that broad
sense in which books and entries relating to elections, revenues, fees, and the acts and
conduct of officials of more general concern or interest, are considered public. As regards the
needs of inspection, records may be divided into four or more classes. It is most important to
have free examination and speedy publication of the statutes and decisions which make the
law by which the people are governed, and by which they are charged with notice in their
conduct. It is also essential to the public welfare that records relating to revenues, elections,
fees, and official acts generally be open to inspection. Access to the files and copies of
documents relating to titles to property by persons who have, or are about to acquire, an
interest, is necessary for their protection. Proceedings in civil suits are sometimes of such a
scandalous nature that closed doors are justified and publicity is better suppressed.
As we have seen, where the statutes provide for inspection by all persons, unless the
language was broad in allowing the taking of copies and memoranda by any one desiring, the
courts have generally refused to compel the recording officer to allow the inspection of all
records, and limited the examinations to those made by, or on behalf of, persons having some
interest in the property, or what is generally the same thing, to current calls for abstracts or
pending negotiations. Under fee bills substantially analogous to ours, and at common law,
persons having an interest in the property, and attorneys and abstracters representing
them, have been allowed to examine and copy records relating to their holdings free of
charge, excepting in Maryland.
attorneys and abstracters representing them, have been allowed to examine and copy records
relating to their holdings free of charge, excepting in Maryland. (Belt v. Abstract Co., 73 Md.
289, 20 Atl. 982, 10 L. R. A. 212.) The official fees for recording are higher than the usual
rates for copying, and there is no language in the fee bill which warrants the recorder in
charging anything further for searches made or copies taken by others on behalf of any one
having or seeking to acquire an interest in the property.
A number of common-law decisions limited the right of inspection to persons who had an
interest in the property. The conflict of these with other cases is more apparent than real, for,
where it was held that the records were open to the inspection of any person, they were of
such a public nature that the members of the community had some interest in them in general
with other citizens, and different from what one man ordinarily has in records relating to the
private property of others. An examination of these English authorities, and of the
expressions of the courts in this country regarding them, which agree with few exceptions,
tends to the belief that at common law a party could not compel an inspection of the records
relating to titles in which he had no personal or public interest. The times are changed, and
these old cases are not so applicable to our present conditions, or to the rights or needs of
abstracting and title guaranty companies, which are of modern origin. The most of the realty
in England was held in large estates by the nobility and landed proprietors, and more
frequently was retained by the owner through life and passed to the oldest son or other heirs.
There was not so large a proportion of small holdings in fee, nor the activity of sales and
frequency of transfer, that exist in this country.
During the crystallization of the early common law the records in England were in the
official language which had been inflicted upon that country by the Caesars, and which was
not discernible to the uneducated masses or to many excepting officials and professional
conveyancers. The part of that language which is still used in conveyancing, and which has
come to us from the Romans through the mother country, has been Anglicized or
Americanized and is within the ordinary knowledge of people possessing our advanced
common education.
country, has been Anglicized or Americanized and is within the ordinary knowledge of
people possessing our advanced common education. There are other words, phrases, and legal
terms still intelligible to few excepting lawyers and Latin scholars. In England judgments
were not a lien upon land, and the seller of realty was required to furnish an abstract which
relieved the purchaser from the necessity of examining the records, while the reverse is true
in this country. (Brown v. Bellows, 4 Pick. 193; Espy v. Anderson, 14 Pa. 312; Easton v.
Montgomery, 90 Cal. 313, 27 Pac. 280, 25 Am. St. Rep. 123; In re Pearson's Estate, 98 Cal.
613, 33 Pac. 415; Dwight v. Cutler, 3 Mich. 566, 64 Am. Dec. 105, and cases cited.)
Caveat emptor being the rule with us in the absence of a special agreement, it is just and
essential to the protection of persons intending to purchase or take incumbrances that they be
allowed the right of inspection. Sections 2663 and 2664, before quoted, and Grellet v.
Heilshorn, 4 Nev. 526, Wilson v. Wilson, 23 Nev. 273, 45 Pac. 1009, and McCabe v. Grey, 20
Cal. 516, charge subsequent purchasers and mortgagees with notice of every recorded
conveyance or writing affecting real estate, and when the statute imposes notice and liability
it must by implication extend the right of examination of the records for the protection of any
who are in a position to be injured without such inspection. To charge any who may sustain
injury with notice of the contents of records, and then deny free access to those contents with
which they are charged, would be an intolerable mockery in this day and generation,
comparable to that perpetrated by the emperor who published his decrees in letters so small
on tablets posted so high that they could not be read by the people, and punished for a
disobedience of them.
We assume that there is no material dispute between the parties here in relation to the
inspection of any record, the examination of which by the public is provided for by the
language of the statute, such as those relating to chattel mortgages or newspapers, but the real
issues are regarding the rights of relator to examine and copy without charge all records
relating to deeds, mortgages, liens, and the titles to realty, concerning the inspection and
copying of the most of which our statutes are silent, and, secondly, pertaining to the right
of relator to have free access to these, when employed by persons interested, to make
searches or furnish abstracts.
realty, concerning the inspection and copying of the most of which our statutes are silent, and,
secondly, pertaining to the right of relator to have free access to these, when employed by
persons interested, to make searches or furnish abstracts. Relator concedes that the recorder
may make proper rules for the conduct of his office. There appears to be a dispute concerning
the right to inspect documents filed before they are recorded. As the statute makes these
notice upon filing, they are open to examination as soon as filed, the same as records
generally, and subject to the same limitations. The business of furnishing abstracts prepared
by professional and expert searchers, and of guaranteeing titles, is a legitimate one and meets
a want of cautious purchasers desiring to be well assured and guaranteed regarding titles. The
tendency in large communities is to concentrate the service which previously was performed
by attorneys and conveyancers.
Persons having or seeking to acquire an interest in property may examine the records for
themselves or exercise their choice in employing an attorney or some one to search for them,
or they may have the abstracting company furnish an abstract or guarantee the title; but, in the
absence of any statute conferring the right, and of any common law or other decision
warranting it, it is apparent that relator is not entitled to copy or examine all the records as
sought by its petition. Whether changed conditions and growing demands of the community
make it desirable to extend to abstract companies the privilege of copying all the records
relating to titles and of duplicating all of these in the offices of the county recorders, is a
question of policy and expediency for the legislature, and not for the courts to determine. The
fact that the statutes provide for the inspection of some records by any person, as indicated,
does not authorize us to interpolate similar provisions into other sections relating to the
record of conveyances and documents affecting private titles.
It is ordered that a writ of mandate issue directing the defendant and respondent, as county
recorder of Nye County, to allow the petitioner and relator, and its agents and employees, free
of charge, during regular business hours, to inspect and make memoranda and copies of all
files and records in the office of the county recorder of that county, in so far as they relate
to any current or depending transactions in which relator is authorized or employed to
make searches, furnish abstracts, or guarantee titles, by persons owning, having any
incumbrance or lien upon, or interest in, or seeking to acquire by purchase, bond,
contract, attachment, execution, mortgage, lien, or incumbrance any interest in property;
the examination and taking of memoranda or copies to be made at such times and under
such circumstances as will not prevent the respondent or his assistants from discharging
their duties, or interfere with the right of other persons to have access to the records.
records in the office of the county recorder of that county, in so far as they relate to any
current or depending transactions in which relator is authorized or employed to make
searches, furnish abstracts, or guarantee titles, by persons owning, having any incumbrance or
lien upon, or interest in, or seeking to acquire by purchase, bond, contract, attachment,
execution, mortgage, lien, or incumbrance any interest in property; the examination and
taking of memoranda or copies to be made at such times and under such circumstances as
will not prevent the respondent or his assistants from discharging their duties, or interfere
with the right of other persons to have access to the records. The privilege sought by relator,
of inspecting or copying all the records for the purpose of compiling an independent set of
abstract books, covering all the property to which the records relate, is denied.
____________
29 Nev. 88, 88 (1906) Twaddle v. Winters
[No. 1675.]
EBENEZER TWADDLE and EBENEZER TWADDLE as Administrator of the Estate of
ALEXANDER TWADDLE, Deceased, Respondent, v. THEODORE WINTERS, A. C.
WINTERS, L. W. WINTERS, and SAMUEL LONGABAUGH, Appellants.
1. AppealTime of TakingDismissal. Where a judgment was rendered on June 23, 1903, and no appeal was
taken therefrom until March, 1905, the appeal will be dismissed for failure to prosecute the same within a
year.
2. New TrialMotionStatementPreparationExtension of Time. Where the court reporter who took the
evidence in an action left the state before preparing a transcript thereof, the parties against whom the
judgment was rendered were entitled to such extensions of time to prepare a statement as a basis for a
motion for a new trial as was necessary to enable them to secure a transcript of the testimony from the
reporter and prepare such statement.
3. JudgesJurisdictionPowers in ChambersEx Parte Orders. Comp. Laws, 3292, authorizes the judge
before whom a case was tried to extend the time for the preparation of a statement on a motion for a new
trial, and District Court Rule 43 declares that only the judge having charge of the cause shall grant further
time to do any act required to be done in the cause of proceeding, unless it is shown by affidavit that such
judge is absent from the state or from some other cause is unable to act. Rule 41 provides that, when any
judge shall have entered upon the hearing of a proceeding, no other judge shall do any act in the cause
unless on the written consent of the judge first hearing the cause. Comp. Laws, 2573, declares that the
district judges of the state shall have coextensive powers throughout the state, and may each exercise the
functions of judges in chambers at any point in the state, subject to the provisions that each judge may
direct and control the business in his own district. Held, that where, on the determination of a cause, the
judge entered an order that all further business not completed and all new business brought before the court
during the absence of such judge should be referred to the judge of another district, the judge of such other
district had jurisdiction in chambers within his own district to grant an ex parte order extending the time for
the preparation of a statement on a motion for a new trial in the cause tried by the absent judge, without an
affidavit that the latter was still absent at the time the order was granted.
4. Waters and Water CoursesIrrigationDiversion of WaterEvidence. In an action to determine water
rights alleged to have been appropriated by plaintiff's grantors, evidence held to sustain a finding awarding
to plaintiffs one hundred and eighty-four inches under a four-inch pressure.
5. SameInjunctionDecree. Where, in an action to determine water rights, defendant was enjoined from
withdrawing from plaintiff's ditch water to which plaintiff was entitled, but there was evidence that there
were times during the summer when it was not necessary to use as much water as plaintiff's ditch
carried, on which occasions it should be turned to defendants, the injunction should
specifically award such water to defendants, notwithstanding that their right thereto
might be implied by law.
as much water as plaintiff's ditch carried, on which occasions it should be turned to defendants, the
injunction should specifically award such water to defendants, notwithstanding that their right thereto might
be implied by law.
6. SameTimeIrrigation Season. Where plaintiff's intestate had testified, in a suit to determine water rights,
that the irrigation season closed about October 1st of each year, and that sometimes he used water from the
ditch in question a little later, a perpetual injunction restraining defendants from interfering with plaintiff's
rights should limit plaintiff's right to use the water for irrigation to October 15th of each year.
7. SameDeedsConstruction. Where a deed from plaintiff's predecessor in interest in certain land, to which
defendants succeeded, conveyed one-third of a certain water ditch and flume, described, with the privilege
of running water through the flume and ditch to the land conveyed, such provision did not constitute a grant
of water, but merely the right to convey water otherwise acquired through the flume and ditch.
8. Waters and Water CoursesRiparian ProprietorsPrior Appropriation. The fact that patents for defendants'
lands lying along the banks of a creek were issued to defendants before adoption of Act Cong. July 26,
1866 (14 Stat. 251, c. 262), providing for the appropriation of water for irrigation purposes, did not confer
on the owners of such land riparian common-law rights to the waters of the creek as against prior
appropriators.
On Rehearing.
1. AppealDeath of PartySubstitutionStatutory Provisions. Supreme Court Rule 9 provides that upon the
death or disability of a party pending an appeal, his representative shall be substituted. Comp. Laws, 3111,
provides that an action shall not abate by the death or other disability of a party or the transfer of any
interest therein, if the cause of action survive or continue, but may be continued by or against his
representative or successor in interest; and, in case of any other transfer of interest, the action may continue
in the name of the original party or in the name of the person to whom the transfer is made. Held, that the
rule is not in conflict with the statute, the two agreeing in allowing the substitution of the representative of
a deceased litigant, but the statute going further, and directing that the action may be continued by or
against his successor in interest or the person to whom he has transferred his interest.
2. CourtsRules. Where there is a conflict between a statute and a supreme court rule, the former will control.
3. SubstitutionParties Entitled. Where a deceased litigant had conveyed his interest in an action in which there
was no counter claim the grantee or successor in interest should be substituted as a party to the action,
rather than the representative of decedent.
4. AppealDeath of Party. Where a case was fully determined in the district court and on the appeal before the
death of one of the litigants, who conveyed his interest to several parties who hold as tenants in common, it
is not necessary to substitute as parties to the action all the tenants in common.
5. Rehearing. Litigants are not entitled to rehearing as a matter of right.
6. Death of PartySubstitution. Under Comp. Laws, 3111, which provides that an action shall not abate by the
death of a party when the cause of action survives and the case may, upon the death of a party, be
continued against his representative or successor in interest, the death of a party pending an appeal does not
oust the jurisdiction of the supreme court, and the failure to substitute his representative does not render its
judgment void.
Appeal from the District Court of the Second Judicial District, Washoe County; B. F.
Curler, Judge.
Action by Ebenezer Twaddle and others against Theodore Winters and others. From a
decree in favor of plaintiffs, defendants appeal. Motion to dismiss appeal from judgment
granted. Motion to dismiss appeal from order denying a new trial denied. Judgment
modified. Rehearing denied.
The facts are sufficiently stated in the opinion.
Alfred Chartz, for Appellant:
I. No injunction will lie where there is a complete and adequate remedy at law, and will
issue only to prevent apprehended injury, and affords no remedy for wrongs already
committed. (Champion v. Sessions, 1 Nev. 478; Conley v. Chedic, 6 Nev. 222; Sherman v.
Clark, 4 Nev. 138; Am. & Eng. Ency. Law, vol. 16, p. 360.) It is submitted that an
appropriation of water by means of a ditch is not measured by the capacity of the ditch, but is
limited to such quantity, not exceeding its capacity, as the appropriator may put to beneficial
use, and no matter how great in extent the original quantity may have been, nor no matter
how much land said appropriator may intend to irrigate, any amount less than the whole
amount which has not been devoted to a beneficial use at some time within five years is lost
and forfeited as against a subsequent appropriator. (Smith v. Hawkins, 120 Cal. 86; Senior v.
Anderson, 115 Cal. 496.) In the case at bar, Hawkins dug a ditch in 1857, and there is no
testimony showing what quantity of water it carried, if any at all. In 1860 George Douglass
saw a flume, and, he thinks, it was a twelve-inch flume.
and, he thinks, it was a twelve-inch flume. The court finds said flume carried one hundred
and eighty-four inches of water. In 1863 Sturtevant was irrigating only about twenty or
twenty-five acres of land. Alex. Twaddle testified that when he saw the land in 1869 it was
then being cultivated as now. In 1859 the Mike Gwinner ditch was constructed, and in 1864
the flume ditch, which is large enough to take the entire creek, was constructed. Under the
foregoing authorities, plaintiffs having failed to put to beneficial use any more water than
would irrigate twenty or twenty-five acres of land, it would make no difference how much
was turned into the Hawkins ditch of 1857 or the Sturtevant flume of 1860; they would be
limited in their prior rights to only sufficient water to irrigate twenty or twenty-five acres of
land, Winters having initiated intervening rights that would be superior to any right plaintiffs
might have to irrigate lands that they brought under cultivation five years after their first
diversion of water. It was absolutely necessary for plaintiffs to prove how much water the
Hawkins and all other ditches carried, and, under the foregoing rule cited in the California
Reports, it was equally necessary to prove how much land plaintiffs irrigated prior to the
initiation of any rights by Winters.
II. A prior appropriator, who fails to use a part for some beneficial purpose, is only
entitled to that part actually and necessarily applied to a beneficial use. (Becker v. Marble
Creek Irr. Co., 15 Utah, 225, 49 Pac. 892, 893; Lobdell v. Simpson, 2 Nev. 274; Water Co. v.
Powell, 34 Cal. 109; Gould on Waters, sec. 231; Kinney on Irr. secs. 175-6; Proctor v.
Jennings, 6 Nev. 83.) The question before the court is: In 1859, when the Mike Gwinner ditch
was constructed, how much water had the plaintiffs appropriated, and how much land had
they in cultivation, and what amount was inclosed? They had about fifteen acres of land
inclosed, and there is no proof that they had conducted any quantity of water upon it. The
amount of water to which the first appropriator is entitled must be limited to the amount
actually applied to the purposes of irrigation.
amount actually applied to the purposes of irrigation. (Simpson v. Williams, 18 Nev. 432;
Union M. & M. Co. v. Dangberg, 81 Fed. 94.)
III. The act of Congress of July 26, 1866, is prospective in its operation, and does not in
any manner qualify or limit the effect of a patent issued before its passage. (Union M. & M.
Co. v. Ferris, 2 Saw. 176.) It is well known that the statute of limitations does not run against
the United States. Defendant Winters owns patent prior to the act of Congress of July 26,
1866. The law of appropriation only applies to streams in which no riparian rights have
attached. (Baxter v. Gilbert, 124 Cal. 580; Hill v. Smith, 27 Cal. 476; Long on Irrigation,
secs. 25, 26.)
IV. There is no claim on the part of plaintiffs or decree of court showing or tending to
show that any other ditch or flume, other than the upper Twaddle ditch or flume, had any
prior right to the use of the waters of Ophir Creek, but the court did decree that plaintiff could
use one hundred and eighty-four inches of the waters of Ophir Creek upon his lands, either
through the lower or upper Twaddle ditches. The evidence conclusively shows that the lower
Twaddle ditch, so called, never reached further than the north side line of the Bowers field,
even as late as 1871. The evidence shows that this ditch has been extended across the Bowers
Mansion field since 1871, and into and upon the Twaddle thirty-two acres of grain land,
which said grain land cannot be irrigated by means of the upper Twaddle ditch, and that the
right to irrigate the thirty-two acres of grain land, described in the pleadings and testimony, by
means of said ditch would begin in 1871, and would be subsequent in time to all the rights
initiated by defendants prior to said date.
Cheney & Massey, for Respondents:
I. Our conclusion is that, no matter what view be taken of the case, the confessed
admission of the appellants is to the effect that no water was ever taken from Ophir Creek for
the irrigation of any lands then owned or now owned by Theodore Winters earlier than 1859,
and that almost none of the waters taken by Winters from Ophir Creek or used upon the
lands now owned by Winters was taken out until long after the lands described in the
complaint in this action had passed into the possession of John Twaddle in 1S69.
the waters taken by Winters from Ophir Creek or used upon the lands now owned by Winters
was taken out until long after the lands described in the complaint in this action had passed
into the possession of John Twaddle in 1869.
II. Without entering into a discussion of the law at all, it is sufficient to say that since the
decision of Jones v. Adams, the supreme court of this state has repeatedly declared that,
because of the arid conditions existing here, because of the necessities of the people, and
because all progress, growth, and development in this state would be retarded by this
application of the doctrine of riparian rights, it never has and does not now exist in this state.
Counsel for appellants has cited a number of authorities from the State of California
respecting the rights of riparian owners, and it is only necessary to call the court's attention to
the fact that in California a mongrel doctrine has developed which has unsettled the rights of
users of water in that state, both as to the common-law right of riparian ownership and the
doctrine of appropriation as it exists here. These cases can have no application at all to the
facts in this case.
III. Counsel further contends that, because Hawkins in 1857 did not have the one hundred
and sixty acres in his possession all irrigated by the waters of Ophir Creek, his appropriation
is limited to the number of acres actually irrigated in that year. This, court and counsel well
know, is not the rule of law prevailing in this state or in any other state as to the appropriation
of waters for beneficial use. Where a person in good faith commences to take out a ditch,
with a capacity sufficient to irrigate a certain tract of land, and prosecutes that enterprise with
reasonable diligence, the courts have universally held as a matter of law that his appropriation
related back, and was initiated to an amount of water sufficient to irrigate that tract of land, to
the date when he commenced the construction of the ditch or actually diverted the water. In
the case at bar it appears that the ditch was commenced in 1856, completed in 1857, and late
in the season of 1857 the water was actually turned through the ditch to and upon the lands in
possession of Hawkins, and crops were produced in that year by the use of its waters.
Cheney & Massey, for Respondents, to dismiss appeal from judgment and from order
denying a new trial:
I. An inspection of the records in this case will show that the judgment of the District
Court of the Second Judicial District, State of Nevada, was rendered on the 23d day of June,
1903, and that the notice of appeal was filed with the clerk of said district court on the 17th
day of March, 1905, and served upon the respondents' attorneys on the same day, nearly nine
months after the expiration of the year within which the notice of appeal was required by law
to be filed and served.
II. The last sentence of section 197 of the practice act provides: The several periods of
time limited may be enlarged by the written agreement of the parties, or upon good cause
shown, by the court or the judge before whom the cause was tried. This sentence limits the
power to enlarge the period of time limited in the section to the court or the judge trying the
case. The question of whether or not Judge Murphy might have made the order when sitting
as the Court of the Second Judicial District at Reno, is immaterial. At the time the order was
made he was not the court, for a recess of the court had been ordered; neither was he the
judge before whom the case had been tried. It is a general rule that such business as may be
transacted out of court is exceptional, and must find express authority in statute. (4 Ency. Pl.
& Pr. 337; Larco v. Casaneuava, 30 Cal. 561; Loomis v. Andrews, 49 Cal. 239; Ellis v. Karl,
7 Neb. 381.) Jurisdiction at chambers is incidental to and grows out of the jurisdiction of the
court itself; hence it follows that the jurisdiction of a judge at chambers cannot go beyond the
jurisdiction of the court to which he belongs, or extend to matters with which his court has
nothing to do. (4 Ency. Pl. & Pr. 338; 17 Am. & Eng. Ency. Law, 723.)
III. In Golden Fleece Co. v. Cable Co., 15 Nev. 450, this court held to a strict construction
of the statute, and decided that a statement filed in time, but served the day following, and
one day after the time to file and serve had expired, was served too late and should be
stricken from the records. This court further held in consonance with its former decisions,
strictly construing section 197 of the practice act, that a statement having been prepared
exclusively as a statement on motion for a new trial could not be considered as a
statement on appeal from the judgment.
sions, strictly construing section 197 of the practice act, that a statement having been prepared
exclusively as a statement on motion for a new trial could not be considered as a statement on
appeal from the judgment. (Robinson v. Benson, 19 Nev. 331; Williams v. Rice, 13 Nev. 234;
Nesbitt v. Chisholm, 16 Nev. 39.) These cases, above cited, show the tendency of this court to
strictly construe section 197 of the practice act, and we submit that the same rule of decision
should apply to the rule in question. Where the rule requires a certain act to be done as a
prerequisite to the granting of additional time to file the statement, the court should not
nullify its operation to the extent of permitting a presumption in the mind of the judge to be
substituted in place of the positive averment which the rule requires. It has been held by this
court that when the time within which the statement is required to be filed has expired, the
failure to file the statement operates as a waiver of the right, and the district court has no
power to reinstate the right. (Elder v. Frevert, 18 Nev. 278, 282; Hoppin v. Cheney, 24 Nev.
222.)
Alfred Chartz, for Appellants, in reply:
I. The writ of certiorari will ordinarily be granted, where a party has been deprived of his
appeal by the improper conduct and unauthorized act of the court or judge, as where a party
had been deprived of his appeal, without his fault, by the erroneous action of the judge in
refuting the same; or where, without laches on the part of the petitioner, he has been deprived
of his appeal by the procurement of the adverse party, or by the inattention, neglect or fault of
an officer of the law. (4 Am. & Eng. Ency. Pl. and Pr. 63, and authorities cited.)
II. On the main question of water rights, appellants desire to call the attention of the court
further to the following authorities: Black's Pomeroy on Water Rights, secs. 33, 42, 44. Said
authorities support the contention of appellants that, being the first owners of land through
which Ophir Creek ran, no appropriation of the waters of Ophir Creek could legally be made
as against said riparian ownership, and that no right by virtue of appropriation could be
superior to any riparian right until after 1S66.
could be superior to any riparian right until after 1866. Anything appearing in Jones v. Adams
contrary to the foregoing is purely obiter dicta, and not binding on this court in the case at
bar.
The respondents have moved to dismiss the appeal from the judgment because it was not
taken within one year, and to dismiss the appeal from the order of the district court denying
appellants' motion for a new trial, and also to strike from the records the statement on motion
for a new trial, upon the ground that the statement was not filed within the time prescribed by
law. The appeal from the judgment is dismissed, because not taken until March, 1905, more
than one year after its rendition on June 23, 1903. On that day Judge Curler, of the Second
Judicial District Court, who had tried the case at Reno and rendered the decree, made in open
court and had entered in the minutes an order that all business and all cases and proceedings
that have not been completed or in the process of completion, and all new business that may
be brought before the court during the absence of the presiding judge, be referred to Judge M.
A. Murphy, of the First Judicial District Court of the State of Nevada, and that he be
requested to try, determine, and dispose of all cases and business now before the court in the
absence of the judge of this district. Pursuant to this request Judge Murphy occupied the
bench in Reno until July 31, 1903, when a recess was taken until the further order of the
court. There was no other session until Judge Curler's return on August 17th.
On July 17th Judge Murphy, in open court in Reno, made an order allowing plaintiffs until
August 15th in which to file objections to findings, and to prepare additional findings. On
August 3d Judge Murphy at Carson City, and within his own First Judicial District, by an ex
parte order made without affidavit of Judge Curler's absence or inability, granted the
defendants until September 15, 1903, within which to prepare, file, and serve their notice and
statement on motion for new trial. Later extensions were made by Judge Curler, but whether
they are effectual depends upon this order, which respondents claim Judge Murphy was
unauthorized to make under section 197 of the practice act {Comp.
depends upon this order, which respondents claim Judge Murphy was unauthorized to make
under section 197 of the practice act (Comp. Laws, 3292), which provides in regard to notices
and statements on motions for a new trial that the several periods of time limited may be
enlarged by the written agreement of the parties, or upon good cause shown by the court, or
the judge before whom the case was tried, and under District Court Rule 43, which directs
that no judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
Rule 41 provides: When any district judge shall have entered upon the trial or hearing of
any cause or proceeding, demurrer or motion, or made any ruling, order or decision therein,
no other judge shall do any act or thing in or about said cause, proceeding, demurrer, or
motion, unless upon the written request of the judge who shall have first entered upon the
trial or hearing of said cause, proceeding, demurrer or motion. Section 2573 of the Compiled
Laws, passed after section 197 of the practice act as quoted, enacts: 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. Each judge shall have power to transact business which may be done in chambers
at any point within the state. All of this section is subject to the provisions that each judge
may direct and control the business in his own district, and shall see that it is properly
performed.
We think under the minute order and circumstances related, the power inherent in Judge
Curler to extend the time for filing the notice and statement became conferred upon Judge
Murphy during the former's absence, and that Judge Murphy became the judge in charge,
endowed with authority to grant the extension without the presentation of an affidavit
showing the absence or inability of Judge Curler, as the rule requires before the order can
be made by a judge not having the business in charge.
ing the absence or inability of Judge Curler, as the rule requires before the order can be made
by a judge not having the business in charge. Judge Curler's absence was presumed to
continue until his return was shown, and consequently Judge Murphy's authority, based upon
that absence, would likewise continue. It is said that under the first statute mentioned the
language that the court or judge before whom the case was tried may extend the time
invalidates the order, because Judge Murphy was not the judge before whom it was tried, and
that he was not the court after he returned to Carson City, where he made the order. In a
narrow, technical sense this may be true, if we do not look beyond the strict letter of the
statute. But not so if we consider the intent and purpose of the enactment, and construe it in
the light of reason as applied to the ordinary rules of practice, and give due weight to the later
section. Apparently the object of this legislation was to prevent the granting of extensions and
the meddling of judges in cases which they had not tried or which were not properly under
their control, and yet, in case of the absence or inability of the judge who tried the action, to
grant relief or allow extensions to be made to deserving litigants.
The argument advanced concedes that, if Judge Murphy had gone to Reno and entered the
order in open court, it would have been good; but, under this contention, if he had stepped
through the door into the chambers and made it, it would have been void. 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. Judge Murphy was merely
acting for Judge Curler during his vacation, but by analogy the construction claimed, if
adopted, would, in every case where a district judge dies, resigns, or is succeeded, invalidate
the orders extending time under section 197 made out of court by his successor in office,
although they are of that character ordinarily granted in chambers. This would mean a
distinction and two rules for filing orders of the same kind, and that the judge who had tried
the cause, as Judge Curler had done in this instance, could make the order in chambers,
while his successor could so make it only in the cases tried by him, and would have to be
in court to make these simple orders extending time in actions which had been previously
tried by another judge.
cause, as Judge Curler had done in this instance, could make the order in chambers, while his
successor could so make it only in the cases tried by him, and would have to be in court to
make these simple orders extending time in actions which had been previously tried by
another judge.
Appellants desired and were entitled to the time granted for the purpose of enabling them
to secure from the court reporter, who had left the state, a transcript of the testimony given on
the trial, which would enable them to properly prepare the statement. Under section 2573
Judge Curler could have made an order granting them the extension at any place in the state,
and, as during his absence Judge Murphy was requested by the court minute to attend to all
business for him, we conclude that he was empowered to make the order at Carson City as he
did, and as Judge Curler could have done, and that it was not necessary for him to make the
trip to Reno and undergo the formality of opening court to enter ex parte orders simply
extending time, such as are usually made out of court.
The motion to dismiss the appeal from the order overruling the motion for a new trial and
to strike out the statement is denied.
On the Merits.
This action was brought by Alexander Twaddle, in his lifetime, and by Ebenezer Twaddle,
as coowners, for four hundred and fifty miners' inches running under a six-inch pressure of
the waters of Ophir Creek, alleged to have been appropriated by their grantors in the year
1856 by means of dams, ditches, and a flume for the irrigation of their ranch, containing
two hundred and three and ninety-two one-hundredths acres in Washoe County. The answer
denies the allegations of the complaint, sets up the ownership by the defendants Winters of a
tract of land about one mile wide by two miles long, and alleges appropriations by them or
their grantors, aggregating six hundred inches flowing under a four-inch pressure, by the year
1867, which are stated to be prior to any diversion of the water by the plaintiffs, and asserts a
claim for defendant Longabaugh to one hundred and eighty inches for fluming wood, lumber,
and ice from large tracts of timber lands owned by him, and for domestic use and
irrigating garden on forty acres at Ophir.
ice from large tracts of timber lands owned by him, and for domestic use and irrigating
garden on forty acres at Ophir. Witnesses appeared to sustain and others to dispute plaintiffs'
right as initiated a half century ago, and the same is true regarding the claims of these
defendants.
The record affords a glimpse of pioneer history at a period previous to the admission of
this state into the Union, and portrays the building and decay of saw and quartz mills and the
rise and decline of towns by the banks of the stream, the waters of which are here in
litigation. One witness testified that the Hawkins ditch, now known as the upper Twaddle
ditch, was completed in 1857, and that he turned the water into it that year. Others stated that
the water was running in the ditch and flume about that time, and that these were apparently
in the same place and of about the same capacity as at present. On behalf of defendants other
witnesses testified that they were over the ground and saw no ditch, and that none existed
there during those earlier years. It is unnecessary for us to detail the conflicting portions of the
evidence. These were carefully considered by the district court, and for the reasons stated in
its decision, enforced by statements in deeds made many years before any controversy arose,
the finding that this ditch was constructed and a prior appropriation of water made through it
in 1857 finds ample support. At first on the Twaddle ranch land was plowed for only a garden
and a small piece of grain, and but little hay was cut. A reasonable time was allowed in which
to extend and complete the use of the water that would flow through the ditch, and the
quantity of land irrigated was increased.
The lower Twaddle ditch was constructed from Ophir Creek at some time prior to 1869,
and runs to and irrigates the eastern portion of plaintiffs' ranch. It is shown that since that
year, at least, their lands have been in practically the same state of cultivation and irrigation
that they were in at the time of the commencement of this action, and that during that period
plaintiffs used all the water they needed from Ophir Creek without interruption, except in
1887, 1898, and at the time this suit was begun. It appears that the plaintiffs had not
materially increased their appropriation in thirty-three years, while Theodore Winters
admitted upon the stand that during the last ten or fifteen years he had been using twice
as much water from Ophir Creek, in addition to that from other streams, as he used
during the first ten years that he cultivated his lands.
thirty-three years, while Theodore Winters admitted upon the stand that during the last ten or
fifteen years he had been using twice as much water from Ophir Creek, in addition to that
from other streams, as he used during the first ten years that he cultivated his lands. As he
claims and uses more than the plaintiffs, we conclude that this large increase in his diversion
of the waters of the stream since the completion of their appropriation which has remained
stationary may account for the shortage and dispute.
By consent of the parties in open court the district judge, accompanied by a civil engineer
who had testified as a witness for the defendants, viewed the premises and made
measurements. At the point of least carrying capacity of the upper Twaddle ditch, which is
the old square flume near the Bowers Mansion and grave, he measured the flow at one
hundred and eighty-four inches and the water lacked more than two inches of reaching the
top. A surveyor had testified for the plaintiffs that its capacity was one hundred and
eighty-two inches at this point, and that the capacity of one hundred feet of the old flume
remaining up nearer the head of the ditch which had been impaired by age and abandoned,
and supplanted by a new V flume built above the old one by the plaintiffs in 1900, was one
hundred and fifty inches. At this point the judge found that the one hundred and eighty-four
inches of water which he had measured below about filled the new V flume, and he estimated
that this old flume would carry from two hundred to three hundred inches. From his
examination of the premises and the character of the soil, the court was of the opinion that the
plaintiffs required, and were entitled to, at least the amount of water they had flowing in the
flume at the time he made the examination, and he decreed them a prior right to one hundred
and eighty-four miners' inches running under a four-inch pressure, or three and thirty-four
fiftieths cubic feet per second, from April 15th to November 15th of each year, and twenty
inches, or two-fifths of one cubic foot per second, for domestic use and watering stock at
other times. It is claimed that the amount allowed is not warranted by the evidence, because
more than the capacity of the upper Twaddle ditch, as shown by the testimony mentioned,
fixing it at one hundred and eighty-two inches at the point above the mansion, and at one
hundred and fifty inches along the one hundred feet of old flume, through which the
water flowed prior to 1900.
as shown by the testimony mentioned, fixing it at one hundred and eighty-two inches at the
point above the mansion, and at one hundred and fifty inches along the one hundred feet of
old flume, through which the water flowed prior to 1900. It is not necessary to determine
whether the court, on its own examination and measurement, may allow a quantity beyond
the range of the evidence, nor whether the surveyor could accurately estimate the capacity of
the one hundred feet of old flume without knowing the volume and velocity of the water that
entered it, nor whether the variation of one part in ninety-one or the difference between one
hundred and eighty-two inches in his measurement and that of one hundred and eighty-four
by the judge should be disregarded as too trifling to be material and as a slight discrepancy to
be expected; for the judgment for the thirty-four inches which defendants claim should be
deducted, because in excess of the capacity of the upper ditch and flume before the
construction of the V flume in 1900, is supported by the finding of the court that the plaintiffs
and their grantors had for more than thirty-one years before the commencement of this suit
used a portion of the water through the lower Twaddle ditch. It is urged that one hundred and
eighty-four inches is more than required for the irrigation of plaintiff's ranch, and that this is
especially so because a few of their one hundred and seventy and forty-five one-hundredths
acres of cultivated land lie above the line of their upper ditch from Ophir Creek, and a small
portion is naturally swampy. The quantity of water allowed by the decree seems very liberal,
both for irrigation and for domestic use and watering stock. Engineers and others testified that
one-half and three-fifths of an inch of water per acre was sufficient, while for the plaintiffs,
farmers from the vicinity varied in their estimates of the amount necessary from one and
one-half inches to three and one-half inches per acre. The evidence indicated that the
plaintiffs had used as much water as that awarded to them, or more, and had uniformly
produced good crops. Much of their land is sandy, with a considerable slope. After examining
the soil and viewing the quantity of water as it ran on the premises, the court agreed with the
testimony of the plaintiffs that that amount was necessary, and adopted a mean between
the highest and lowest estimates.
with the testimony of the plaintiffs that that amount was necessary, and adopted a mean
between the highest and lowest estimates. The quantity of water requisite varies greatly with
the soil, seasons, crops, and conditions, and we cannot say that the allowance is excessive.
Alexander Twaddle testified that there were times during the summer, evidently short
periods after the land had been irrigated, when it was not necessary to use as much as the
upper ditch full of water. On such occasions, and whenever it is not needed by the plaintiffs,
it should be turned to the defendants, if they have any beneficial use for it, and not permitted
to waste. It may be implied by the law, but it is better to have decrees specify, and especially
so in this case, in view of the testimony stated and of the perpetual injunction, that the award
of water is limited to a beneficial use at such times as it is needed. (Gotelli v. Cardelli, 26
Nev. 382.) The point and purpose of diversion may be changed if such change does not
interfere with prior rights. Under the testimony of Alexander Twaddle that the irrigating
season closes about the 1st of October, and that sometimes he used water a little later, we
think preferably the decree should limit plaintiffs' right for irrigating purposes to October
15th. This may allow defendant Longabaugh to flume wood a month earlier at this season
when the water is low, and allow Winters more for watering stock without material injury to
the plaintiffs. Although his flume was erected many years ago, Longabaugh did not show any
prior appropriation, and the decree properly enjoins him from interfering with that part of the
water of Ophir Creek awarded to the plaintiffs, because he ran their water in his flume past
their ditch and into the one owned by Winters, and joined with the other defendants in
answering and resisting the rights of the plaintiffs. The decree does not prevent him from
taking any water in the creek in excess of the amount awarded to plaintiffs. Nor does it in any
way interfere with the water belonging to him coming from other sources. This he may turn
into Ophir Creek and take out lower down, provided he does not diminish the flow to which
the plaintiffs are entitled.
On May 30, 1877, John Twaddle, the father and predecessor in interest of the plaintiffs,
conveyed to M. C. Lake one-third of that certain water ditch and flume known as the
Twaddle ditch,' leading from what is known as Ophir Creek' to the land of said Twaddle,
southerly from said creek through the lands of C. F. Wooten and M. C. Lake, with the
privilege of running water through said flume and ditch to what is known as the Bowers
Mansion' or grounds; the expense of maintaining said ditch and flume to be paid by each in
proportion to their interests in same. It will be noted that this language does not purport to
grant any water, but rather the right to convey water, and that it amounts to a sale of a third
interest in the ditch, with at least the privilege to that extent of running in it water which Lake
had or might appropriate. Later the defendant Theodore Winters acquired the Bowers
Mansion and grounds through conveyances which did not mention any interest in this ditch. It
does not appear that Lake or his grantors ever made any use of the ditch, or ever contributed
towards its repair. Alexander Twaddle stated on the stand that he did not claim all this ditch,
and that the plaintiffs owned two-thirds of it. Whether under this deed the one-third interest in
the ditch became appurtenant to the Bowers land when it was never used for its irrigation, and
later passed with the land without being mentioned, and whether, after the lapse of
twenty-five years without any use or contribution towards its repair, the grantee of Lake has a
third interest as a coowner in the ditch and that part of the flume which has not been
superseded by the new one built by plaintiffs, are questions which we need not determine, for
they, and that part of the judgment of the court which gives the plaintiffs the exclusive use of
the upper Twaddle ditch and flume, are not within the allegations of the pleadings, which
contain no reference to the exclusive use of, or a third or any interest in, the ditch.
Under the assertion in the complaint of the appropriation of water by means of certain
dams, ditches, and a flume the court properly decreed to plaintiffs the right to use the water
through either or both the ditches running to their lands. They would have that right in the
upper ditch if their interest in it is only an undivided two-thirds, as the court has given
them jointly with the defendants in the lower ditch; but whether the grantee of Lake
owns and can assert a right to an undivided one-third interest is a question as foreign as
the ownership of the mansion, and one which ought not to be determined by the
judgment, in the absence of any issue or allegation concerning it.
their interest in it is only an undivided two-thirds, as the court has given them jointly with the
defendants in the lower ditch; but whether the grantee of Lake owns and can assert a right to
an undivided one-third interest is a question as foreign as the ownership of the mansion, and
one which ought not to be determined by the judgment, in the absence of any issue or
allegation concerning it. The defendants specifically excepted to finding No. 12 in this regard.
Patents for defendants' lands lying along the banks of Ophir Creek were issued to their
grantors before the passage of the act of Congress of July 26, 1866, and it is asserted that for
this reason a vested common-law riparian right to the flow of the waters of Ophir Creek
accrued, of which they could not be deprived by that act. If this were true, defendants might
well be considered under the circumstances shown, to have lost that right by acquiescence in
the continued diversion of the water by plaintiffs for a period many times larger than that
provided by the statute of limitations; but in this contention counsel is in error. We do not
wish to consider seriously or at length an argument by which it is sought to have us overrule
well-reasoned decisions of long standing in this and other arid states, and in the Supreme
Court of the United States, such as Jones v. Adams, 19 Nev. 78, 6 Pac. 442, 3 Am. St. Rep.
788, Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St.
Rep. 364, and Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790, declaring that this statute
was rather the voluntary recognition of a preexisting right to water, constituting a valid claim
to its continued use, than the establishment of a new one.
As time passes it becomes more and more apparent that the law of ownership of water by
prior appropriation for a beneficial purpose is essential under our climatic conditions to the
general welfare, and that the common law regarding the flow of streams, which may be
unobjectionable in such localities as the British Isles and the coast of Oregon, Washington,
and northern California, where rains are frequent and fogs and winds laden with mist from the
ocean prevail and moisten the soil, is unsuitable under our sunny skies, where the lands are so
arid that irrigation is required for the production of the crops necessary for the support and
prosperity of the people.
for the production of the crops necessary for the support and prosperity of the people.
Irrigation is the life of our important and increasing agricultural interests, which would be
strangled by the enforcement of the riparian principle.
Congress, in appropriating millions for storage and distribution, and our legislature have
recognized the advantages of conserving the water above for use in irrigation, instead of
having it flow by the lands of riparian owners to finally waste by sinking and evaporation in
the desert. The California decisions cited for appellants may no longer be considered good
law even in the state in which they were rendered. In the recent case of Kansas v. Colorado,
before the Supreme Court of the United States, Congressman Needham testified that
irrigation had doubled and trebled the value of property in Fresno and Kings Counties,
California; that they had to depart from the doctrine of riparian rights and under that doctrine
it would be difficult to make any future development; that there has been a departure from the
principles laid down in Lux v. Haggin (Cal.), 10 Pac. 674, because at that time the value of
water was not realized; that the decision has been practically reversed by the same court on
subsequent occasions; and that the doctrine of prior appropriation and the application of water
to a beneficial use is in effect in force now in that state. We must decline to award the
defendants the waters of the stream as riparian proprietors and patentees of the land along its
banks prior to 1866.
The case will be remanded for a new trial, unless there is filed on part of the plaintiffs,
within thirty days from the filing hereof, a written consent that the judgment be modified by
limiting the use of the one hundred and eighty-four inches or three and thirty-four fiftieths
cubic feet per second of water, awarded to the plaintiffs, to such times as may be necessary
for the irrigation of their crops or lands or for other beneficial purposes, between April 15th
and October 15th of each year, and by allowing plaintiffs for the remainder of the time the
twenty inches awarded to them, when necessary for their household, domestic, and stock
purposes, and by striking from the decree the words: It is further ordered, adjudged, and
decreed that said plaintiffs have the exclusive right to use and the exclusive use of said
upper Twaddle ditch and flume at all seasons of the year."
ordered, adjudged, and decreed that said plaintiffs have the exclusive right to use and the
exclusive use of said upper Twaddle ditch and flume at all seasons of the year. If such
consent is so filed, the district court will modify the judgment accordingly, and, as so
modified, the judgment and decree will stand affirmed.
On Rehearing.
[NoteThe decision on rehearing of this case, which here follows, was rendered on March
30, 1907, at which time Talbot, J., by operation of law, had become Chief Justice.]
By the Court, Talbot, C. J.:
After the rendition of the decision in this case, and within the time thereby allowed,
respondents filed their written consent to the modification of the judgment as suggested by
this court. Later one of the appellants, Theodore Winters, died, and upon the rehearing the
attorney for the appellants moved to have Mrs. Nettie M. Gregory, Lewis W. Winters, Archie
C. Winters, Mrs. Theodora Longabaugh, and Nevada Winters substituted as defendants and
appellants in place of the deceased, upon the suggestion of his death and upon a deed from
him to the parties named. The death and execution of the deed are not denied, but it is said
that there may be an heir of the deceased other than the persons named, who may have some
interest in the property, and objection is made that, under rule 9 of this court, only the
representative of the deceased, and not his successors in interest, may be substituted. The
opposing parties desired to argue the case on the rehearing, and proceeded accordingly.
The direction in this rule that, upon the death or disability of a party pending an appeal,
his representative shall be substituted in the suit by suggestion in writing to the court on the
part of such representative, or any party on the record, does not necessarily conflict with the
statute (section 3111, Comp. Laws), which provides: An action shall not abate by the death,
or other disability, of a party, or by the transfer of any interest therein, if the cause of action
survive or continue. In case of the death or disability of a party, the court, on motion, may
allow the action to be continued by or against his representative or successor in interest.
In case of any other transfer of interest, the action may be continued in the name of the
original party, or the court may allow the person to whom the transfer is made to be
substituted in the action. The two may be construed together. They agree in allowing the
substitution of the representative of a deceased litigant. The statute goes further than the rule,
when it directs that, in case of the death of a party, the court, on motion, may allow the action
to be continued by or against his successor in interest, and that, in the case of any other
transfer, the court may allow the person to whom the transfer is made to be substituted.
If there were any conflict between the statute and the rule, the former would control. It
would seem that ordinarily, where litigants convey their interest in actions where there is no
counter claim, the grantee or successor may properly be substituted, whether the original
litigant be living or not, and, if he be dead, that it would be proper to substitute the grantee
rather than the representative of the deceased, who is without interest in the action. It is an old
principle that one or more tenants in common may maintain an action on behalf of all, and on
this theory it would seem that this case could proceed without substituting all the owners. The
change of parties is not so important, as the case was fully determined in the district court and
on the appeal before the death of Theodore Winters, and we have concluded not to vary our
judgment as previously rendered. This leaves the rights of the parties as adjudicated before
his death. It has often been held that litigants are not entitled to a rehearing as a matter of
right. In Phelan v. Tyler, 64 Cal. 82, 28 Pac. 115, it was said: There is nothing in the code
which would justify the inference that the death of a party pending an appeal ousts the
jurisdiction of the supreme court and renders its judgment void, unless before the rendition
thereof a representative of said deceased party be substituted in his stead.
Regarding other points argued on the rehearing, we see no good reason for changing our
decision, which directs the lower court to modify the judgment subject to the consent of the
respondents, which has already been given, and we shall consider here only one of the
contentions further urged by appellants on the rehearing.
shall consider here only one of the contentions further urged by appellants on the rehearing. It
is still claimed with considerable assurance that the testimony of the engineer that the
capacity of the remaining piece of old, abandoned square flume below the more recently built
V flume on the upper Twaddle ditch is only one hundred and fifty inches, is uncontradicted,
and necessarily limits the prior appropriation to that amount, or thirty-four inches less than
the judgment awards. No convincing argument is presented to show that plaintiffs are not
entitled to this excess by reason of their use of at least that much through their lower ditch
adversely for more than thirty years, and for periods far beyond the statute of limitation,
without interruption; but, if it were conceded that the plaintiffs are entitled to no water by
reason of their appropriation or use through their lower ditch, there is other evidence to
support the judgment for one hundred and eighty-four inches. True, the record does not show
that any witness stated that he measured this piece of old flume and found that its capacity
was different or more than the estimate made by the engineer, but there is much testimony in
a general way to the effect that plaintiffs' ranch required, and that as prior appropriators they
used in its irrigation through their upper ditch, as much water, estimated by the capacity of
the flume back of Bowers' Mansion, as they have been allowed by the judgment.
Also, the testimony of farmers living in the vicinity, regarding the quantity of water
required for the irrigation of the crops raised by plaintiffs, and the relative capacities of the
square flume back of the mansion and the V flume being shown by actual flow of water to be
different from the measurements of the engineer, may be considered as standing against his
estimate and as supporting the judgment of the district court. Under the law and the specific
terms of the decree as it has been directed to be modified, the allowance of a prior right to
plaintiffs for one hundred and eighty-four inches is limited to such times as that quantity, by
reasonable and economical use, is necessary for the irrigation of their lands, and when they do
not need it they are not privileged to waste water to the detriment of the defendants, who
may then use any water in excess of plaintiffs' necessities.
ants, who may then use any water in excess of plaintiffs' necessities.
It is ordered that Mrs. Nettie M. Gregory, Lewis W. Winters, Archie C. Winters, Mrs.
Theodora Longabaugh, and Nevada Winters be substituted as defendants in place of
Theodore Winters, deceased, and, if any other person or persons are interested in the
judgment or property, they may be added as parties by the district court upon proper showing.
The judgment of this court as heretofore rendered will stand affirmed, and, the plaintiffs
having already filed their consent, the district court will modify its judgment as we have
directed.
Norcross, J.: I concur.
This case was submitted on rehearing before Sweeney, J., became a member of the court.
____________
29 Nev. 110, 110 (1906) In Re Chartz
[No. 1687.]
In Re CHARTZ.
1. ContemptAttorneysMisconduct in Argument. Defendant, an attorney of the supreme court, in a petition
for rehearing of a cause in which the supreme court had held a statute limiting the hours of labor
constitutional, stated that in his opinion the decisions favoring the power of the state to limit the hours of
labor on the ground of the police power of the state were all wrong, were written by men who have never
performed manual labor, and by politicians and for politics, and that they did not know what they wrote
about. Held, that such statement constituted a contempt of the supreme court, which was not purged by
defendant's disavowal of any intent to commit a contempt and by his apology.
2. SamePunishment. Defendant for such offense was subject to reprimand and to an order striking the petition
from the files, and taxing him with the costs of the contempt proceeding.
Original proceeding for contempt against Alfred Chartz. Defendant found guilty.
Reprimanded and warned.
Alfred Chartz, in propria persona:
I. I hope that I feel the duties of my office as an attorney-at-law, and at all times obey the
orders and decrees of the court, and act gentlemanly and respectfully, and that my personality
will never be considered in my contentions, but that the courts will at all times see only
the rights and wrongs of the cases before them.
29 Nev. 110, 111 (1906) In Re Chartz
sonality will never be considered in my contentions, but that the courts will at all times see
only the rights and wrongs of the cases before them.
II. I have not back-bitten in the slightest degree, and am willing to be brought face to
face with any one who may have reported that I ever did. Everything that I have done has
been in public print, in my briefs and in my arguments. I am anxious to show to this court,
beyond peradventure or doubt, every thing I have done, and confess from the housetops, to
the end that those who see fit to entrust their rights and interests in my hands shall not be
made to suffer on account of my personality.
Respondent was commanded to show cause why he should not be adjudged guilty of
contempt for having, as an attorney of record in the Matter of the Application of Peter Kair
for a Writ of Habeas Corpus, filed in this court a petition for rehearing in which he made use
of the following statement:
In my opinion the decisions favoring the power of the state to limit the hours of labor, on
the ground of the police power of the state, are all wrong, and written by men who have never
performed manual labor, or by politicians and for politics. They do not know what they wrote
about.
Respondent appeared in response to the citation, filed a brief, and made an extended
address to the court in which he took the position that the words in question were not
contemptuous, disavowed any intention to commit a contempt of court, and, further, that, if
the language was by the court deemed to be objectionable, he apologized for its use and asked
that the same be stricken from the petition.
In considering the foregoing statement, it is proper to note that in the briefs filed by
respondent upon the hearing of the case in the first instance he used language of similar
import, which this court did not take cognizance of, attributing its use to overzealousness
upon the part of counsel, but which was of such a nature that the attorney-general in his reply
brief referred to it as insinuating that the legislature in enacting, and this court in sustaining,
the law, were being "impelled or controlled by some mythical political influence or fear
which exists only in the pyrotechnic imagination of counsel."
29 Nev. 110, 112 (1906) In Re Chartz
impelled or controlled by some mythical political influence or fear which exists only in the
pyrotechnic imagination of counsel. Also, the case and its condition at the time the
objectionable language was used should be taken into consideration. The proceeding in which
this petition was filed had been brought to test the constitutionality of a section of an act of
the legislature limiting labor to eight hours per day in smelters and other ore reduction works,
except in cases of emergency, where life or property is in imminent danger. (Stat. 1903, p. 33,
c. 10.) This act had passed the legislature almost unanimously and had received the
governor's approval.
At the time of filing the petition respondent was aware that this court had previously
sustained the validity of this enactment as limiting the hours of labor in underground mines
(Re Boyce, 27 Nev. 327, 75 Pac. 1, 65 L. R. A. 47), and in mills for the reduction of ores,
smelters, etc. (Re Kair, 28 Nev. 127, 425, 80 Pac. 464), and that similar statutes had been
upheld by the Supreme Court of Utah and the Supreme Court of the United States in the cases
of State v. Holden, 14 Utah, 71, 86, 46 Pac. 757, 1105, 37 L. R. A. 103, 108; Holden v.
Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Short v. Mining Co., 20 Utah, 20, 57
Pac. 720, 45 L. R. A. 603, and by the Supreme Court of Missouri, in Re Cantwell, 179 Mo.
245, 78 S. W. 569. It may not be out of place here, also, to note that the latter case has since
been affirmed by the Supreme Court of the United States, and more recently the latter
tribunal, adhering to its opinion therein and in the Utah cases, has refused to interfere with the
decisions of this court in Re Kair.
It would seem, therefore, a natural and proper, if not a necessary, deduction from the
language in question, when taken in connection with the law of the cases as enunciated by
this and other courts, that counsel, finding that the opinion of the highest court in the land
was adverse, instead of favorable, to his contentions, in that it specifically affirmed the Utah
decision in Holden v. Hardy, which sustained the statute from which ours is copied, and that
all of the courts named were adverse to the views he advocated, had resorted to abuse of the
justices of this and other courts, and to imputations of their motives.
29 Nev. 110, 113 (1906) In Re Chartz
to abuse of the justices of this and other courts, and to imputations of their motives. The
language quoted is tantamount to the charge that this tribunal and the Supreme Courts of
Utah, Missouri, and of the United States, and the justices thereof who participated in the
opinions upholding statutes limiting the hours of labor in mines, smelters, and other ore
reduction works, were misguided by ignorance or base political considerations.
Taking the most charitable view, if counsel became so imbued and misguided by his own
ideas and conclusions that he honestly and erroneously conceived that we were controlled by
ignorance or sinister motives, instead of by law and justice, in determining constitutional or
other questions, and that these other courts and judges and the members of the legislature and
the governor were guilty of the accusation he made because they and we failed to follow the
theories he advocated, and that his opinions ought to outweigh and turn the scale against the
decisions of the four courts named, including the highest in the land, with nineteen justices
concurring, nevertheless it was entirely inappropriate to make the statement in the brief. If he
really believed or knew of facts to sustain the charge he made, he ought to have been aware
that the purpose of such a document is to enlighten the court in regard to the controlling facts
and the law, and convince by argument, and not to abuse or vilify, and that this court is not
endowed with power to hear or determine charges impeaching its justices.
On the other hand, if he did not believe the accusation, and made it with a desire to
mislead, intimidate, or swerve from duty the court in its decision, the statement would be the
more censurable. So that taking either view, whether respondent believed or disbelieved the
heinous charge he made, such language is unwarranted and contemptuous. The duty of an
attorney in his brief or argument is to assist the court in ascertaining the truth pertaining to the
pertinent facts, the real effect of decisions and the law applicable to the case, and he far
oversteps the bounds of professional conduct when he resorts to misrepresentation, false
charges, or vilification. He may fully present, discuss, and argue the evidence and the law,
and freely indicate wherein he believes that decisions and rulings are wrong or erroneous,
but this he may do effectually without making bald accusations against the motives and
intelligence of the court, or being discourteous or resorting to abuse which is not
argument nor convincing to reasoning minds.
29 Nev. 110, 114 (1906) In Re Chartz
law, and freely indicate wherein he believes that decisions and rulings are wrong or
erroneous, but this he may do effectually without making bald accusations against the
motives and intelligence of the court, or being discourteous or resorting to abuse which is not
argument nor convincing to reasoning minds. If respondent has no respect for the justices, he
ought to have enough regard for his position at the bar to refrain from attacking the tribunal
of which he is a member, and which the people through the constitution and by general
consent have made the final interpreter of the laws which he, as an officer of the court, has
sworn to uphold and protect. These duties are so plain that any departure from them by a
member of the bar would seem to be wilful and intentional misconduct.
The power of courts to punish for contempt and to maintain decency and dignity in their
proceedings is inherent, and is as old as courts are old. It is also provided by statute. By
analogy we note the adjudications and penalties imposed in a few of the many cases.
Lord Cottingham imprisoned Edmund Lechmere Charlton, a barrister and member of the
House of Commons, for sending a scandalous letter to one of the masters of the court, and a
committee from that body, after an investigation, reported that, in their opinion, his claim to
be discharged from imprisonment by reason of privilege of parliament ought not to be
admitted. (2 Milne & Craig, 317.)
When the case of People v. Tweed, in New York City, came up a second time before the
same judge, before the trial commenced, the prisoner's counsel privately handed to the judge
a letter, couched in respectful language, in which they stated, substantially, that their client
feared, from the circumstances of the former trial, that the judge had conceived a prejudice
against him, and that his mind was not in the unbiased condition necessary to afford an
impartial trial, and respectfully requested him to consider whether he should not relinquish
the duty of presiding at the trial to some other judge, at the same time declaring that no
personal disrespect was intended toward the judge or the court. The judge retained the letter,
and went on with the trial. At the close of the trial he sentenced three of the writers to a
fine of $250 each, and publicly reprimanded the others, the junior counsel, at the same
time expressing the opinion that if such a thing had been done by them in England, they
would have been "expelled from the bar within one hour."
29 Nev. 110, 115 (1906) In Re Chartz
close of the trial he sentenced three of the writers to a fine of $250 each, and publicly
reprimanded the others, the junior counsel, at the same time expressing the opinion that if
such a thing had been done by them in England, they would have been expelled from the bar
within one hour. The counsel at the time protested that they intended no contempt of court,
that they felt and intended to express no disrespect for the judge, but that their action had
been taken in furtherance of what they deemed the vital interests of their client and the
faithful and conscientious discharge of their duty. The judge accepted the disclaimer of
personal disrespect, but refused to believe the disclaimer of intention to commit a contempt,
and enforced the fines. (11 Alb. Law J. 408; In re Pryor, 26 Am. Rep. 752.)
For sending to a district judge out of court a letter stating that the ruling you have made is
directly contrary to every principle of law, and everybody knows it, I believe, and it is our
desire that no such decision shall stand unreversed in any court we practice in, an attorney
was fined $50 and suspended from practice until the amount should be paid. In delivering the
opinion of the Supreme Court of Kansas (In re Pryor, 18 Kan. 72, Am. Rep. 747), Brewer, J.,
said: Upon this we remark, in the first place, that the language of this letter is very insulting.
To say to a judge that a certain ruling which he has made is contrary to every principle of law,
and that everybody knows it, is certainly a most severe imputation. We remark, secondly, that
an attorney is under special obligations to be considerate and respectful in his conduct and
communications to a judge. He is an officer of the court, and it is therefore his duty to uphold
its honor and dignity. The independence of the profession carries with it the right freely to
challenge, criticise, and condemn all matters and things under review in evidence. But with
this privilege goes the corresponding obligation of constant courtesy and respect toward the
tribunal in which the proceedings are pending. And the fact that the tribunal is an inferior one,
and its rulings not final and without appeal, does not diminish in the slightest degree this
obligation of courtesy and respect. A justice of the peace before whom the most trifling
matter is being litigated is entitled to receive from every attorney in the case courteous
and respectful treatment.
29 Nev. 110, 116 (1906) In Re Chartz
the most trifling matter is being litigated is entitled to receive from every attorney in the case
courteous and respectful treatment. A failure to extend this courtesy and respectful treatment
is a failure of duty; and it may be so gross a dereliction as to warrant the exercise of the power
to punish for contempt. It is so that in every case where a judge decides for one party he
decides against another; and ofttimes both parties are beforehand equally confident and
sanguine. The disappointment, therefore, is great, and it is not in human nature that there
should be other than bitter feeling which often reaches to the judge as the cause of the
supposed wrong. A judge, therefore, ought to be patient, and tolerate everything which
appears but the momentary outbreak of disappointment. A second thought will generally
make a party ashamed of such outbreak. So an attorney sometimes, thinking it a mark of
independence, may become wont to use contemptuous, angry, or insulting expressions at
every adverse ruling, until it becomes the court's clear duty to check the habit by the severe
lesson of a punishment for contempt. The single insulting expression for which the court
punishes may therefore seem to those knowing nothing of the prior conduct of the attorney,
and looking only at the single remark, a matter which might well be unnoticed; and yet, if all
the conduct of the attorney was known, the duty of interference and punishment might be
clear. We remark, finally, that while, from the very nature of things, the power of a court to
punish for contempt is a vast power, and one which in the hands of a corrupt or unworthy
judge may be used tyrannically and unjustly, yet protection to individuals lies in the publicity
of all judicial proceedings, and the appeal which may be made to the legislature for
proceedings against any judge who proves himself unworthy of the power intrusted to him.
Where a contention arose between counsel as to whether a witness had not already
answered a certain question, and the court, after hearing the reporter's notes read, decided that
she had answered it, whereupon one of the attorneys sprang to his feet, and, turning to the
court, said, in loud tones and insulting manner: She has not answered the questionheld
that "the attorney was guilty of contempt, regardless of the question whether the
decision of the court was right or wrong."
29 Nev. 110, 117 (1906) In Re Chartz
held that the attorney was guilty of contempt, regardless of the question whether the decision
of the court was right or wrong. (Russell v. Circuit Judge, 67 Iowa, 102, 24 N. W. 741.)
In Sears v. Starbird, 75 Cal. 91, 16 Pac. 531, 7 Am. St. Rep. 123, a brief reflecting upon
the trial judge was stricken from the record in the supreme court because it contained the
following: The court, out of a fullness of his love for a cause, the parties to it, or their
counsel, or from an overzealous desire to adjudicate all matters, points, arguments, and
things,' could not, with any degree of propriety under the law, patch and doctor up the case of
the plaintiffs, which, perhaps, the carelessness of their counsel had left in such a condition as
to entitle them to no relief whatever. In reference to this language, it was said in the opinion:
Here is a distinct intimation that the judge of the court below did not act from proper
motives, but from a love of the parties or their counsel. We see nothing in the record which
suggests that such was the case. On the contrary the action complained of seems to us to have
been entirely proper. See Sill v. Reese, 47 Cal. 340. The brief, therefore, contains a
groundless charge against the purity of motive of the judge of the court below. This we regard
as a grave breach of professional propriety. Every person on his admission to the bar takes an
oath to faithfully discharge the duties of an attorney and counselor.' Surely such a course as
was taken in this case is not a compliance with that duty. In Friedlander v. Sumner G. & S.
M. Co., 61 Cal. 117, the court said: If unfortunately counsel in any case shall ever so far
forget himself as wilfully to employ language manifestly disrespectful to the judge of the
superior court, a thing not to be anticipated, we shall deem it our duty to treat such conduct as
a contempt of this court, and to proceed accordingly.' And the briefs in the case were ordered
to be stricken from the files.
In U. S. v. Late Corporation of Church of Jesus Christ of Latter Day Saints language used
in a petition filed, in effect accusing the court of an attempt to shield its receiver and his
attorneys from an investigation of charges of gross misconduct in office, and containing the
statement that "we must decline to assume the functions of a grand jury, or attempt to
perform the duty of the court in investigating the conduct of its own officers," was held to
be contemptuous.
29 Nev. 110, 118 (1906) In Re Chartz
conduct in office, and containing the statement that we must decline to assume the functions
of a grand jury, or attempt to perform the duty of the court in investigating the conduct of its
own officers, was held to be contemptuous. (Utah, 21 Pac. 519.)
In Re Terry (C. C.), 36 Fed. 419, an extreme case, for charging the court with having been
bribed, resisting removal from the courtroom by the marshal acting under an order from the
bench, and using abusive language, one of the defendants was sent to jail for thirty days and
the other for six months. Judge Terry, who had not made any accusation against the court,
sought release and to be purged of the contempt by a sworn petition in which he alleged that
in the transaction he did not have the slightest idea of showing any disrespect to the court. It
was held that this could not avail or relieve him, and it was said: The law imputes an intent
to accomplish the natural result of one's acts, and, when those acts are of a criminal nature, it
will not accept, against such implication, the denial of the transgressor. No one would be safe
if a denial of a wrongful or criminal intent would suffice to release the violator of law from
the punishment due to his offenses.
In an application for a writ of habeas corpus, growing out of Re Terry, supra, Harlan,
speaking for the Supreme Court of the United States, said: We have seen that it is a settled
doctrine in the jurisprudence, both of England and of this country, never supposed to be in
conflict with the liberty of the citizen, that for direct contempts committed in the face of the
court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly
apprehended and immediately imprisoned, without trial or issue, and without other proof than
its actual knowledge of what occurred, and that according to an unbroken chain of authorities,
reaching back to the earliest times, such power, although arbitrary in its nature, and liable to
abuse, is absolutely essential to the protection of the courts in the discharge of their functions.
Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect
neither the laws enacted for the vindication of public and private rights, nor the officers
charged with the duty of administering them."
29 Nev. 110, 119 (1906) In Re Chartz
officers charged with the duty of administering them. (128 U. S. 313, 9 Sup. Ct. 83, 32 L.
Ed. 405.)
In Re Woolley, 74 Ky. 95, it was held that to incorporate into a petition for rehearing the
statement that your honors have rendered an unjust decree, and other insulting matter, is to
commit in open court an act constituting a contempt on the part of the attorney; and that,
where the language spoken or written is of itself necessarily offensive, the disavowal of an
intention to commit a contempt may tend to excuse, but cannot justify the act. From a
paragraph in that opinion we quote: An attorney may unfit himself for the practice of his
profession by the manner in which he conducts himself in his intercourse with the courts. He
may be honest and capable, and yet he may so conduct himself as to continually interrupt the
business of the courts in which he practices, or he may, by a systematic and continuous course
of conduct, render it impossible for the courts to preserve their self-respect and the respect of
the public and at the same time permit him to act as an officer and attorney. An attorney who
thus studiously and systematically attempts to bring the tribunals of justice into public
contempt is an unfit person to hold the position and exercise the privileges of an officer of
those tribunals. An open, notorious, and public insult to the highest judicial tribunal of the
state for which an attorney contumaciously refuses in any way to atone may justify the refusal
of that tribunal to recognize him in the future as one of its officers.
In Re Cooper, 32 Vt. 262, the respondent was fined for ironically stating to a justice of the
peace: I think this magistrate wiser than the supreme court. Redfield, C. J., said: The
counsel must submit in a justice court, as well as in this court, and with the same formal
respect, however difficult it may be either here or there. We do not see that the relator has any
alternative left him but the submission to what he no doubt regards as a misapprehension of
the law, both on the part of the justice and of this court. And in that respect he is in a
condition very similar to many who have failed to convince others of the soundness of their
own views, or to become convinced themselves of their fallacy.
29 Nev. 110, 120 (1906) In Re Chartz
In Mahoney v. State (Ind. App.), 72 N. E. 151, an attorney was fined $50 for saying: I
want to see whether the court is right or not. I want to know whether I am going to be heard
in this case in the interest of my client, or notand making other insolent statements.
In Redman v. State, 28 Ind. 205, the judge informed counsel that a question was improper,
and the attorney replied: If we cannot examine our witnesses, he can stand aside. This
language was deemed offensive, and the court prohibited that particular attorney from
examining the next witness.
In Brown v. Brown, 4 Ind. 627, 58 Am. Dec. 641, the lawyer was taxed with the cost of the
action for filing and reading a petition for divorce which was unnecessarily gross and
indelicate.
In McCormick v. Sheridan (Cal.), 20 Pac. 24: A petition for rehearing stated that how or
why the honorable commissioner should have so effectually and substantially ignored and
disregarded the uncontradicted testimony, we do not know. It seems that neither the transcript
nor our briefs could have fallen under the commissioner's observation. A more disingenuous
and misleading statement of the evidence could not well be made. It is substantially untrue
and unwarranted. The decision seems to us to be a travesty of the evidence.' Held that counsel
drafting the petition was guilty of contempt committed in the face of the court,
notwithstanding a disavowal of disrespectful intention. A fine of $200 was imposed, with an
alternative of serving in jail.
The Chief Justice, speaking for the court in State v. Morrill, 16 Ark. 384, said: If it were
the general habit of the community to denounce, degrade, and disregard the decisions and
judgments of the courts, no man of self-respect and just pride of reputation would remain
upon the bench, and such only would become the ministers of the law as were insensible to
defamation and contempt. But happily, for the good order of society, men, and especially the
people of this country, are generally disposed to respect and abide the decisions of the
tribunals ordained by government as the common arbiters of their rights. But where isolated
individuals, in violation of the better instincts of human nature and disregardful of law and
order, wantonly attempt to obstruct the course of public justice by disregarding and
exciting disrespect for the decisions of its tribunals, every good citizen will point them out
as proper subjects of legal animadversion.
29 Nev. 110, 121 (1906) In Re Chartz
and order, wantonly attempt to obstruct the course of public justice by disregarding and
exciting disrespect for the decisions of its tribunals, every good citizen will point them out as
proper subjects of legal animadversion. A court must naturally look first to an enlightened
and conservative bar, governed by a high sense of professional ethics, and deeply sensible, as
they always are, of its necessity to aid in the maintenance of public respect for its opinions.
In Sommers v. Torrey, 5 Paige (N. Y.) 64, 28 Am. Dec. 411, it was held that the attorney
who put his hand to scandalous and impertinent matter stated against the complainant and one
not a party to the suit is liable to the censure of the court and chargeable with the cost of
proceedings to have it expunged from the record.
In State v. Grailhe, 1 La. Ann. 183, the court held that it could not consistently with its
duty receive a brief expressed in disrespectful language, and ordered the clerk to take it from
the files.
Referring to the rights of courts to punish for contempt, Blackford, J., in State v. Tipton, 1
Blackf. (Ind.) 166, said: This great power is intrusted to those tribunals of justice for the
support and preservation of their respectability and independence. It has existed from the
earliest period to which the annals of jurisprudence extend; and except in a few cases of party
violence, it has been sanctioned and established by the experience of ages.
See, also, Lord Mayor of Landon's Case, 3 Wils. 188; opinion of Kent, C. J., in Case of
Yates, 4 Johns. (N. Y.) 317; Johnston v. Commonwealth, 1 Bibb (Ky.) 598.
At page 206 of Weeks on Attorneys (2d ed.) it is said: Language may be contemptuous,
whether written or spoken, and, if in the presence of the court, notice is not essential before
punishment, and scandalous and insulting matter in a petition for rehearing is equivalent to
the commission in open court of an act constituting a contempt. When the language is capable
of explanation, and is explained, the proceedings must be discontinued; but, where it is
offensive and insulting per se, the disavowal of an intention to commit a contempt may tend
to excuse, but cannot justify, the act.
29 Nev. 110, 122 (1906) In Re Chartz
act. From an open, notorious, and public insult to a court, for which an attorney
contumaciously refused in any way to atone, he was fined for contempt, and his authority to
practice revoked.
Other authorities in line with these we have mentioned are cited in the note to Re Cary (D.
C.), 10 Fed. 632, and in 9 Cyc. p. 20, where it is said that contempt may be committed by
inserting in pleadings, briefs, motions, arguments, petitions for rehearing, or other papers
filed in court insulting or contemptuous language, reflecting on the integrity of the court.
By using the objectionable language stated respondent became guilty of a contempt which
no construction of the words can excuse or purge. His disclaimer of any intentional disrespect
to the court may palliate, but cannot justify, a charge which under any explanation cannot be
construed otherwise than as reflecting on the intelligence and motives of the court, and which
could scarcely have been made for any other purpose unless to intimidate or improperly
influence our decision. As we have seen, attorneys have been severely punished for using
language in many instances not so reprehensible, but in view of the disavowal in open court
we have concluded not to impose a penalty so harsh as disbarment or suspension from
practice, or fine or imprisonment. Nor do we forget that, in prescribing against the
misconduct of attorneys, litigants ought not to be punished or prevented from maintaining in
the case all petitions, pleadings, and papers essential to the preservation and enforcement of
their rights.
It is ordered that the offensive petition be stricken from the files, that respondent stand
reprimanded and warned, and that he pay the costs of this proceeding.
Fitzgerald, C. J., concurring:
In this matter my concurrence is special and to this extent: The language used by the
respondent in his petition for a rehearing, and on which this contempt proceeding was based,
was, in my opinion, contemptuous of this court, and, of course, should not have been used.
29 Nev. 110, 123 (1906) In Re Chartz
course, should not have been used. The respondent, however, in response to the order of the
court to show cause why he should not be punished therefor, appeared and disclaimed any
intention to be disrespectful or contemptuous, and moved that, if the court deemed the
language contemptuous, the said language be stricken out of his petition. Respondent not only
contended and said that he had no intention to be disrespectful or contemptuous, but he also
earnestly contended that the language charged against him and which he admitted having
used was not disrespectful or contemptuous. In this last contention, I think, he was plainly in
error.
The duty of courts in matters of this kind is indeed an unpleasant one, such, at least, has it
always appeared to me. Yet it must sometimes be done.
Therefore I concur in the conclusion reached, and in the order stated in the opinion of
Justice Talbot, to wit: It is ordered that the offensive petition be stricken from the files, that
respondent stand reprimanded and warned, and that he pay the costs of this proceeding.
____________
29 Nev. 127, 127 (1906)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1906.
____________
29 Nev. 127, 127 (1906) Fox v. Bernard
[No. 1686.]
C. F. FOX, Respondent, v. MRS. HARRIET BERNARD, as Executrix of the Last Will and
Testament of WILLIAM M. BERNARD, Deceased, MRS. HARRIET ORTH, and J. E.
ORTH, Appellants.
1. MortgagesForeclosureLimitations. In 1893, plaintiff loaned $400 to a borrower, taking a deed as
security, and executing a bond to reconvey on or before 1898 on payment being made. In 1896, plaintiff
loaned $600 additional, and accepted as security for $1,000 the deed already made, and by release the
borrower relieved plaintiff from the obligations of his bond, who executed a new bond binding him to
reconvey on or before January 1, 1900, on the payment of $1,000 and interest. Held, that an action for the
purpose of declaring the deed a mortgage and foreclosing it, brought in April, 1904, was not barred by
limitations, the extension of the time for a reconveyance given by the surrender of the first bond and the
execution of the second one being as effective as if plaintiff had conveyed the property to the borrower and
taken a new deed from him.
2. Executors and AdministratorsActionsLimitations. Where, in a suit to declare a deed a mortgage and to
foreclose it, no judgment for any deficiency was demanded or granted by the judgment directed only
against the premises, the fact that the suit was not begun within the time required by the probate act, after
the rejection of the demand by the executrix of the deceased grantor, was immaterial, though the executrix
was made a party defendant.
Appeal from District Court of the First Judicial District of the State of Nevada, Lyon
County; M. S. Murphy, Judge.
Action by C. F. Fox against Mrs. Harriet Bernard, as executrix of William Bernard,
deceased, and individually, and others.
29 Nev. 127, 128 (1906) Fox v. Bernard
executrix of William Bernard, deceased, and individually, and others. From a judgment for
plaintiff, defendants appeal. Affirmed. Petition for rehearing. Denied.
John Lothrop and Alfred Chartz, for Appellants:
I. The plaintiff must prove the contract alleged in his complaint, or he is not entitled to
recover. This is not a mere arbitrary rule, but is founded on good sense as well as good law.
(22 Ency. Pl. & Pr. 527; Greenl. Ev. sec. 63; Jones, Ev. sec. 235; Rice, Ev. sec. 292; Phil. Ev.
205.) It is submitted that the suit was for the foreclosure of a mortgage, and that the decree
can be supported, if at all, only upon the strength of the deed absolute on its face of date
February 18, 1893.
II. The mortgage and the debt secured thereby is outlawed. It is dated February 18, 1893.
As the acknowledgment of a debt signed by the party charged, it would outlaw February 18,
1899. It has never been renewed by the party to be charged. His name does not appear to a
single paper since his signature to said mortgage, in form of a deed absolute on its face.
(Comp. Laws, 2700, 3718.) If a party adopt by mere parol promise the written contract of
another, his obligation will be barred by the limitation prescribed for parol contracts.
(Wheeler v. Schad, 7 Nev. 204.) Under the foregoing rule, if the finding of the bond for a
deed from C. F. Fox to W. M. Bernard, dated February 8, 1896, amongst the papers of
Bernard after his death, can be at all considered as an agreement upon the part of Bernard to
pay Fox money, it can only be considered in the light of a parol contract on his part, because
his name does not appear to it as a signature, and the life of that contract would expire on
February 8, 1900. In other words, said so-called bond for a deed of date February 8, 1896, is
nothing more in legal effect than a private memorandum of C. F. Fox. If it be claimed that the
bond for a deed prescribes that Bernard would be entitled to a deed only upon payment of the
$1,000 and its interest, we answer that that fact does not change the character of the original
mortgage of date February 18, 1893, in the form of a deed absolute on its face, because,
whatever the words of the instrument, it was given as, accepted as, and intended to be
given and accepted as, a mortgage, and it always has remained so.
29 Nev. 127, 129 (1906) Fox v. Bernard
a deed absolute on its face, because, whatever the words of the instrument, it was given as,
accepted as, and intended to be given and accepted as, a mortgage, and it always has
remained so.
III. Should Fox, having filed his claim, have sued within thirty days after notice of its
rejection? (See Comp. Laws, 2896, 2897, 2898.) A claim is certainly an entire thing. Plaintiff
presented and filed his claim as an entire thing, and, if allowed, would have been entitled to a
judgment over and above the amount realized from the mortgage security, to be satisfied from
the rest of the estate. In the suit at bar plaintiff attempts to segregate his rights, and seeks to
recover only upon the security he originally obtained on February 18, 1893.
IV. * * * The creditor to establish a claim which has been rejected must bring an action
against the administrator or executor in some court of general jurisdiction. (8 Ency. Law,
1093, 1094; Miller v. Dorsey, 9 Md. 317; Bowie v. Ghiselin, 30 Md. 557; Hensel v.
International Bld. Co., 85 Tex. 215; Price v. McIver, 25 Tex. 769, 78 Am. Dec. 558; Swan v.
House, 50 Tex. 650.)
Mack & Farrington and George D. Pyne, for Respondent:
I. The plaintiff alleged in his complaint that the deed, two defeasances, and release were
executed to secure the money loaned to Bernard. All of the authorities cited by appellant
under said subdivision are directly in point for respondent. It is a well-established doctrine
that a court of equity will treat a deed absolute in form as a mortgage, when it is executed as a
security for an indebtedness, and it may be shown, not only by a defeasance in writing, but by
parol evidence. (Boone, Law of Mortgages, sec. 38, and many authorities cited thereunder;
Bingham v. Thompson, 4 Nev. 232; Saunders v. Stewart, 7 Nev. 203; Cookes v. Culbertson, 9
Nev. 199; Leahigh v. White, 8 Nev. 150.)
II. It is not necessary to present a mortgage claim against an estate. (Kirman v. Powning, 25
Nev. 378; Scammon v. Ward, 23 Pac. 439; Reed v. Miller, 1 Wash. 426; Woerner, Admn.
409; Toulouse v. Burkett, 2 Idaho, 170; Waughop v. Bartlett, 165 Ill.
29 Nev. 127, 130 (1906) Fox v. Bernard
Bartlett, 165 Ill. 128; McCallam v. Pleasants, 67 Ind. 545; Rickards v. Hutchinson, 18 Nev.
215; Allen v. Moer, 16 Iowa, 307; Fisher v. Mossman, 11 Ohio St. 42; Wilt. Mortg. Forec.
sec. 63; Wood, Lim. 390, cases cited in note 5; Willard v. Van Leeuwen, 56 Mich. 15, 22 N.
W. 185; McClure v. Owens, 32 Ark. 443; Richardson v. Hickman, 32 Ark. 407; 8 Am. &
Eng. Ency. Law, 2d ed. 1070, and a multitude of cases there cited, 18 states; Edwards v. Hill,
59 Fed. 723; Fish v. De Laray, 8 S. D. 320.) In the case of Kriman v. Powning, counsel for
appellant in that case maintained that it was not necessary to present a claim secured by a
mortgage to the administratrix of an estate for allowance, before suit for foreclosure could be
maintained (see 25 Nev. 381, subd. 5), and succeeded in convincing this court that that was
the correct rule. The same counsel now contend that the rule established in that case is not the
law. Consistency, thou art a jewel! The authorities cited by counsel for appellant, under
subdivision 3 of their brief, are not in point because the facts in those cases present an entirely
different question from the one before the court in this case. The probate of a claim does not
affect the holder's right to foreclose his mortgage, whether it be allowed or disallowed.
(Kirman v. Powning, 25 Nev. 378; Verdier v. Bigne, 16 Or. 208; Fowler v. Mickley, 39 Minn.
28; Simms v. Richardson, 32 Ark. 297; Turner v. Horner, 29 Ark. 440; Lillard v. Noble, 159
Ill. 316; Amer. Law Admn. 2 ed. sec. 409; Moran v. Gardemayer, 82 Cal. 96; Willis v.
Farley, 24 Cal. 500; Dreyfuss v. Giles, 79 Cal. 410.)
III. Counsel for appellant contend that notice of rejection of plaintiff's claim, given by Mr.
Lothrop, was equivalent to a notice given by the executrix. Comp. Laws, 2892, provides that
the executor shall give notice of appointment and to creditors, and section 2897 provides that
notice of rejection of a claim shall be given by the executor to the claimant. If the first notice
must be given by the executor, must not the second also be given by the executor? If the first
section referred to is mandatory, then the second section referred to is also mandatory. If an
attorney can claim notice of the rejection of a claim, why cannot the attorney give notice to
creditors? We think our supreme court has decided that the executor must act in all these
matters and cannot delegate his or her authority to any attorney.
29 Nev. 127, 131 (1906) Fox v. Bernard
decided that the executor must act in all these matters and cannot delegate his or her authority
to any attorney. (Douglass v. Folsom, 21 Nev. 441.)
John Lothrop and Alfred Chartz, for Appellants, in reply:
I. It is respectfully submitted, under the facts and the authorities cited in our opening and
closing briefs, that:
(1) The only written obligation of W. M. Bernard to pay C. F. Fox any money appears on
the deed of February 18, 1893.
(2) That C. F. Fox could not extend the life of said obligation by his own written
agreements, without the name of W. M. Bernard.
(3) That such written memoranda, on his part and in his own behalf, would amount to no
more than a parol contract, if accepted by Bernard, and such parol contract would outlaw in
four years, to wit, on February 8, 1900, being four years from February 8, 1896.
(4) That credits of payment of rent or interest, written by C. F. Fox, did not extend the life
of any of the written contracts.
(5) That C. F. Fox was not in possession of any of the lands described in the complaint
within five years immediately preceding the beginning of the action.
On February 18, 1893, the plaintiff loaned $400 to William Bernard, now deceased, and to
secure the payment thereof he deeded to plaintiff on that day the lands described in the
complaint, and at the same time plaintiff executed to him a bond for a deed whereby he
agreed to reconvey the property on or before February 18, 1898, provided that he was paid on
or before that date $400, and also $36 annually. On February 8, 1896, plaintiff loaned
Bernard the additional sum of $600, and accepted as security for $1,000 and interest the deed
made to plaintiff at the time the $400 was borrowed, and by release made in writing,
acknowledged and recorded, Bernard then relieved him from all obligations resulting from
the bond made February 18, 1893, and thereupon plaintiff executed to Bernard a new bond,
dated February 8, 1S96, conditioned that plaintiff would make and deliver a good and
sufficient conveyance of the property to Bernard, provided plaintiff were paid $1,000 on
or before January 1, 1900, and also $90 annually, and further provisioned that if Bernard
paid these amounts and the taxes he would be entitled to the use and possession of the
premises.
29 Nev. 127, 132 (1906) Fox v. Bernard
1896, conditioned that plaintiff would make and deliver a good and sufficient conveyance of
the property to Bernard, provided plaintiff were paid $1,000 on or before January 1, 1900,
and also $90 annually, and further provisioned that if Bernard paid these amounts and the
taxes he would be entitled to the use and possession of the premises. A receipt and the
statement or admission of Bernard a short time before his death indicate that the only
payments were on interest to the 8th day of February, 1897. He died the following year and
letters testamentary were issued to his widow, Mrs. Harriet Bernard, who has since married
C. J. Orth. Plaintiff's demand arising out of the above transactions was presented against the
estate, and by her as executrix was rejected on August 29, 1898. There is testimony indicating
that she had previously recognized the demand by endeavoring to borrow money for its
payment. On July 24, 1901, the property was set over to her by decree of distribution. From a
judgment decreeing the deed to plaintiff to be a mortgage, and ordering a foreclosure and sale
of the premises to satisfy the amount, $1,731.25, and $76.40 costs, found due to plaintiff, she
appeals.
The well-settled doctrine, that a deed executed merely for the purpose of securing a debt
will be construed as a mortgage, is not assailed, but for appellant it is contended that as suit
was not brought until April, 1904, more than six years after the last loan and the giving of the
last bond on February 8, 1896, and more than four years after the time, January 1, 1900, fixed
for a conveyance thereunder conditioned on payment, the action is barred by the statute of
limitations. It is said that by executing a written release of the first bond and accepting a new
one in its stead, at the time he borrowed the last amount, $600, Bernard did not sign any
writing agreeing to pay or acknowledging a debt, and that therefore the obligation to pay on
his part was merely verbal and would be barred in four years. We do not so view that
transaction. Most instruments in daily use, such as deeds, mortgages, notes, orders, drafts, and
checks, are signed by only one of the parties, but are not, for that reason, verbal, nor half
verbal. Although Bernard executed no note or writing agreeing to pay any money, he
signed a deed absolute in terms conveying the property to plaintiff, and by this suit and
the decree no more is sought than he, under his signature, obligated himself to yield.
29 Nev. 127, 133 (1906) Fox v. Bernard
no note or writing agreeing to pay any money, he signed a deed absolute in terms conveying
the property to plaintiff, and by this suit and the decree no more is sought than he, under his
signature, obligated himself to yield. In equity the extension of the time for a reconveyance by
plaintiff, given by the surrender of the first bond, and the execution of a new one ought to be
considered as effective as if plaintiff had conveyed the property to Bernard, and taken a new
deed from him, which would have left the title in plaintiff as it now stands. It was not
necessary to have these extra deeds, and if they had been executed they would not have varied
the time for bringing suit, and the initiation of the running of the statute which was controlled
by the last bond, and the date therein fixed and extended for payment and reconveyance.
Plaintiff is fortified with a writing for all that is awarded him by the judgment and for more if
the property is worth more. The loan and giving of the security, which vary the unconditional
terms of the deed, and which are shown verbally, are facts favorable to appellant which it
would have been incumbent upon her to prove if plaintiff had sued in ejectment for the
property and introduced the deed. The bringing of the action four years and four months after
January 1, 1900, the time fixed in the last bond for a reconveyance condition on payment, was
not too late.
It is also urged that suit was not begun within the time required by the provisions of the
probate act after the rejection of the claim by the executrix. Whether this is so is immaterial,
for, although she as executrix is named as a party defendant, the allegations of the complaint
and the decree may be considered as running against the property only. No judgment for any
deficiency after sale or otherwise against the estate is demanded or given by the decree, which
is directed only against the premises, and plaintiff's rights to this extent would not be
curtailed nor affected by failure to present a claim to the executrix, nor by her rejection of the
claim filed, nor by his omission to sue within the time prescribed for commencing actions on
rejected claims against estates of deceased persons, as is necessary when it is desired to reach
the assets of the estate.
29 Nev. 127, 134 (1906) Fox v. Bernard
In Cookes v. Culbertson, 9 Nev. 207, as here, a deed was given as security for a loan
which was not evidenced in writing. It was said in the opinion: The remedy upon the debt is
barred by the statute, but the debt was not thereby extinguished; and as the statute of
limitations of this state applies to suits in equity as well as actions at law, the creditors could
have enforced payment by foreclosure of the mortgage within four years after the cause of
action accrued. He had two remedies, one upon the debt, the other upon the mortgage; by
losing one he does not necessarily lose the other. Since the rendition of that decision the
time for commencing actions on written instruments has been extended from four to six
years, and under well-recognized principles plaintiff was allowed that length of time after the
date fixed for payment of the $1,000 and for the termination of the bond or a reconveyance,
which was January 1, 1900.
As said in Borden v. Clow, 21 Nev. 278, 30 Pac. 822, 37 Am. St. Rep. 511, It is a rule in
regard to the statute of limitations that the statute begins to run when the debt is due and an
action can be instituted upon it. Under the argument for appellant the four years from the
final loan on February 8, 1896, to the time for payment of the $,1000 under the bond of
January 1, 1900, would be deducted from the six years allowed for bringing suit, and on that
theory if the maturity of the loan had been more than six years, instead of four, plaintiff's
cause of action would have been barred before it accrued.
The judgment of the district court is affirmed.
On Rehearing.
By the Court:
Petition for rehearing denied.
____________
29 Nev. 135, 135 (1906) Brandon v. West
[No. 1681.]
WILLIAM J. BRANDON, Appellant, v. N. H. WEST, as Administrator of the Estate of B. G.
CLOW, Deceased, et al., Respondents.
1. AppealPresentation of CauseObjectionsRehearing. A notice of appeal stated that the appeal was taken
from the judgment and from an order denying the motion for a new trial. The undertaking was conditioned
for the payment of costs on appeal from the judgment, and the transcript was entitled Statement on Motion
for New Trial and Appeal. Copies of all papers required by Comp. Laws, 3300, to be embodied in the
judgment roll, with the exception of the summons, were contained in the transcript, and no motion was
made to dismiss the appeal from the judgment because of any alleged defect therein, nor was the regularity
of the appeal questioned on the presentation of the cause; the case being briefed, argued, and presented as
though the appeal was regular. Held, that respondent was not entitled to object on an application for
rehearing that there was no appeal from the judgment.
2. SameDisposition of CauseRendition of Judgment. In a suit to enforce specific performance of a contract
plaintiff was defeated and appealed. He prayed that the judgment be modified by directing execution of a
deed to plaintiff, or, if he was not entitled to such relief, but was entitled to a deed to certain sand and the
exclusive right to remove the same, that judgment be rendered on appeal accordingly. Defendants offered
no evidence, but prepared findings, which were signed, negativing all allegations of the complaint with
reference to a sale of the land, which were approved. Plaintiff moved to strike out such findings relative
to a sale of the sand to plaintiff, which was denied, and defendants on appeal did not deny that the evidence
was sufficient to establish a sale of the sand and license to remove the same. Held, that defendants could
not object for the first time on rehearing that plaintiff was not entitled to the direction to a degree of
specific performance of the contract for the sale of the sand, but that the court, on reversing the cause,
should have remanded the case for a new trial.
Fitzgerald, C. J., dissenting.
On Motion to Modify.
1. AppealRehearingMotion to Modify Order. Where a petition for rehearing has been
denied, a motion claiming error in a controlling matter of law, but which claim was not
advanced in the original hearing, to set aside or modify the decision and order of the
court on the petition, must be dismissed.
2. Scope and Extent. Points or contentions not raised, or waived by silence, on the original
hearing cannot be maintained or considered on petition for rehearing.
3. Number of Rehearings. A second application for the rehearing of a cause by the same
party, after his petition for rehearing has been denied, will not be entertained.
Petition for rehearing. Denied. Motion to set aside or modify the decision and order of the
Supreme Court made on petition for rehearing. Dismissed. [For original opinion, see 28 Nev.
500.]
Mack & Farrington, for Appellant.
Cheney & Massey, for Respondents:
I. This court has inadvertently stated: From a judgment in favor of the defendants, for
their costs, and an order overruling a motion for a new trial, this appeal is taken. It is true the
appellant gave notice that he would appeal from both the order overruling his motion for a
new trial and the judgment, but it is equally true that he did not appeal from the judgment.
Section 336 of the practice act provides: A copy of the judgment shall be annexed to a copy
of the judgment roll, if the appeal be from the judgment; if the appeal be from an order, to a
copy of the order. The record on appeal does not contain the judgment roll; does not even
purport to contain it. The clerk's certificate expressly shows what it does contain, and all that
it contains, but it is not even intimated that it contains the judgment roll. It does contain a
certified copy of the order denying the motion for a new trial and constitutes a sufficient
record to determine the validity of that order, but this court has no jurisdiction whatever, upon
this record, to affirm, reverse, or modify the judgment entered in the lower court. That can
only be done on an appeal from the judgment. An appeal from a judgment can only be taken
by making the judgment roll in the lower court a part of the record of appeal. (Comp. Laws,
3431; Irwin v. Samson, 10 Nev. 282; Williams v. Rice, 13 Nev. 234.)
II. Upon an appeal taken from the order denying a motion for a new trial, this court cannot
review errors appearing in the judgment roll. (Simpson v. Ogg, 18 Nev. 28, 34.) It is only the
judgment or order appealed from that the appellate court may reverse, affirm, or modify
(Comp. Laws, 3434), and the only order appealed from is the order denying a motion for a
new trial, the judgment roll having not been made a part of the record on appeal.
denying a motion for a new trial, the judgment roll having not been made a part of the record
on appeal. It may be that there is such a conflict between the original and amended findings as
to justify the granting of a new trial (Langan v. Langan, 89 Cal. 186). But it seems to have
been consistently held that the question whether the findings support the judgment is not
raised by an appeal from an order denying a motion for a new trial. (Kirman v. Honnewill, 93
Cal. 526; Wheeler v. Bolton, 92 Cal. 159; Brison v. Brison, 90 Cal. 323; Martin v. Matfield,
49 Cal. 42; Rush v. Casey, 39 Cal. 339; Jenkins v. Frink, 30 Cal. 586.)
III. The rule has heretofore been consistently followed in this state that the action of the
trial court upon questions of fact, if supported by any evidence, will not be disturbed upon
appeal. Both parties to this action joined in their request that the district court view the
premises. If it is not already apparent that this court has inadvertently made an order broader
than the record justified, we ask the justices of this court to view the premises and see the
condition of the property and its relation to the rest of the property of this estate. It is
respectfully submitted that a rehearing should be granted, or that the order made herein
should be modified and confined to remanding this case to the district court for a new trial.
Cheney, Massey & Price, for Respondents, on motion to modify:
I. In Winter v. Fulstone, 20 Nev. 261, on petition for rehearing a point was made for the
first time, and the court, although it denied the petition, modified the judgment in the respect
indicated and remanded it for further proceeding. (Walker v. Sims, 94 N. W. 113; Tapping v.
Gennett, 90 N. W. 911; Parker v. State, 33 N. E. 119.) In Crowell v. Jaqua, 14 N. E. 559, 15
N. E. 243, the Supreme Court of Indiana had rendered a judgment, and subsequently, upon its
own motion, set aside and reversed that judgment and remanded it for a new trial because it
had misapprehended the law. (Hatfield v. Chamberlain, 21 S. E. 798; Elliott, Appel. Proc.
550.)
The respondents petition for a rehearing in this action, or a modification of the order
entered therein, on the following grounds: That no appeal was ever taken from the judgment
herein; that the only appeal which was taken was from the order denying plaintiff's motion for
a new trial, and the jurisdiction of this court is limited to affirming or reversing that order;
and that the order entered directing judgment for plaintiff is not warranted, even had an
appeal been taken from the judgment. It is contended that the record on appeal does not
contain the judgment roll, and consequently that there can be no appeal from the judgment.
The notice states that the appeal is from the judgment, as well as the order denying the motion
for a new trial. The undertaking on appeal is conditioned for the payment of costs on appeal
from the judgment. The transcript is entitled Statement on Motion for New Trial and
Appeal. Copies of all the papers required under Comp. Laws, 3300, to be embodied in the
judgment roll, with the exception of the summons, are contained in the transcript. There was
no motion made to dismiss the appeal from the judgment because of any alleged defect
therein, nor was the sufficiency or regularity of the appeal questioned upon the presentation
of the cause. The case was briefed, argued, and presented as though the appeal was entirely
regular. Its sufficiency, therefore, cannot now be questioned upon petition for rehearing.
It is argued that this court, in any event, ought not to have directed that judgment be
entered in favor of the appellant, upon reversal of the judgment, but that all that was proper to
be done, under such circumstances, was the granting of a new trial, the rule being, that
where there is an issue upon material facts, which may possibly be decided in more than one
way on another trial, there should be a new trial ordered on a reversal of the judgment. Upon
the trial of this cause the respondents offered no evidence; they submitted the case upon the
testimony offered by the plaintiff. The court ordered judgment in favor of defendants.
Findings prepared by defendants' counsel, which negatived the allegations of plaintiff's
complaint that there was a sale of the land described therein, were approved by the court.
tions of plaintiff's complaint that there was a sale of the land described therein, were
approved by the court. Counsel for the plaintiff moved to strike out the findings so allowed,
and made request for certain other findings. Upon the hearing of this motion and request, the
court made, among others, the additional finding relative to the sale of the sand to the
plaintiff and the right or license to remove the same, in pursuance of which finding judgment
was ordered by this court to be entered in favor of appellant. Counsel for respondents, though
participating in this hearing, may not have been called upon to except to this finding, if
objection were had thereto; but, in any event, no objection was made or exception taken. In
plaintiff's assignments of error in his statement on motion for a new trial and appeal the point
is twice made that it was error in the court not to give plaintiff judgment in accordance with
this finding. Counsel for appellant in their opening brief take the position that they were
entitled to judgment at least to the extent of the sand and the exclusive license to remove the
same, as found by the trial court. They close their brief with the following paragraph:
Wherefore plaintiff and appellant prays that, inasmuch as all the evidence is before the
court, the judgment be modified by directing the defendants to execute a deed of said property
to plaintiff; and should the court find that plaintiff is not entitled to the relief prayed for in the
complaint, but is entitled to the lesser relief of a deed to the sand and exclusive right to
remove the same, that the judgment be modified accordingly. * * *
It will be seen, therefore, that whether judgment by this court should be ordered entered in
favor of the plaintiff upon the findings as they stood, was squarely before the court. There
was no intimation in respondents' brief that, in the event this court should conclude that the
finding as to the sale of the sand was supported by the evidence and that the trial court should
have given judgment to that extent in favor of the plaintiff, this court ought not to make an
order directing such a judgment to be entered, instead of remanding the case for a new trial.
ing the case for a new trial. There was no suggestion that, in the event this court agreed with
the contention of appellant that judgment should have been entered in favor of the plaintiff
upon the findings, that a new trial should be ordered, so that the defendants might have an
opportunity to offer evidence upon the issues or that they had any evidence that might be so
offered.
Counsel for respondents in the presentation of this case upon the hearing on appeal took
the sole position that, under the pleadings, findings, and evidence, the appellant was entitled
to no relief whatever. Although counsel for appellant was asking that judgment be ordered
entered in favor of plaintiff in accordance with the finding relative to the sale of the sand, this
finding is nowhere directly attacked in respondents' brief; in fact, it is not denied that the
evidence was sufficient to establish a sale of sand and a license to remove the same, although
it was and is claimed that the proofs as to the limits within which the sand might be taken
were too indefinite. Under this state of facts, we think the contention, now made for the first
time, that the course pursued by this court was not a proper one, also comes too late. It is the
rule that no new ground or position not taken in the argument submitting the case, or question
waived by silence, can be considered on petition for rehearing. (Powell v. N. C. O. Ry. Co.,
28 Nev. 305, 82 Pac. 97; Beck v. Thompson, 22 Nev. 421, 41 Pac. 1.)
It was contended by counsel for respondents upon the presentation of this case, and is
again urged in the petition for rehearing, that there was no satisfactory proof of the boundaries
of the land referred to in the complaint, and within which the sand has been held to have been
sold to the plaintiff. This point was considered, although not referred to in the original
opinion. There was testimony to the effect that two of the sides, the south and the east, were
laid out in the presence of B. G. Clow and the plaintiff and at Clow's direction. Counsel in
their petition now only contend that the record on appeal, fairly considered, fails to show
that the western boundary of the land claimed by appellant was ever indicated or marked by
B. G. Clow. As the land in question is triangular in shape, the establishment of two of the
sides would necessarily establish the third.
tion is triangular in shape, the establishment of two of the sides would necessarily establish
the third.
The petition for rehearing is denied.
Fitzgerald, C. J.: I dissent.
On Motion to Modify.
A statement of the facts and the law controlling the rights of the parties in this action is
contained in the opinion of this court rendered on the merits, 28 Nev. 505, 83 Pac. 327.
Subsequently respondents filed a petition for rehearing which was denied, because they were
not entitled to a rehearing on matters waived or grounds not advanced by them on the first
argument on appeal. After the denial of the petition for rehearing they filed a motion to set
aside our decision and order directing the entry of judgment by the lower court, and they seek
to sustain the motion on grounds not advanced by them on the original hearing, and they
submit affidavits which do not state facts which would warrant a judgment different than we
have ordered, but which pertain to matters not advanced or suggested in the first argument
before us on the merits. Appellant moves to dismiss and to strike from the files this motion of
respondents, for the reason that there is no statute, rule, or practice authorizing such motion,
and on other grounds. To allow respondents' motion to stand and be considered would be
doing indirectly and later by this motion what we had previously refused to do on the petition
for rehearing, and would not only set a precedent which would render judgments uncertain
and unstable after the rendition on appeal and consideration on rehearing in this court, but
would unduly prolong litigation and sweep aside the benefits and results following from the
rule announced in numerous decisions in this and other courts, holding that points or
contentions not raised, or passed over in silence on the original hearing, cannot be maintained
or considered on petition of rehearing. This rule is equivalent to holding that matters so
waived cannot be entertained later, and good reasons exist for its enforcement.
later, and good reasons exist for its enforcement. It is urged that the court will correct or
modify at any time a judgment which is wrong. Where there is a clerical mistake or some
error apparent on the record, it is not unusual to correct the judgment on motion. This is not a
case of that kind, and we are not aware of any decision or rule of practice in any court which
would warrant the modification of the judgment after the petition for rehearing has been
determined, on motion claiming error in a controlling matter of law advanced by appellant
and waived by the silence of respondents on the original hearing, as was done in this case. We
think such practice is unwarranted, for it would render judgments on appeal unstable and tend
to unduly prolong litigation.
Many of the cases holding that grounds and matters not advanced on the original hearing
in this court will not be considered on petition for rehearing are cited in Powell v. N. C. O.
Ry., 28 Nev. 342, 343, 82 Pac. 97. The motion of respondents to amend the judgment is
equivalent to a petition for a rehearing. (Gray v. Gray, 11 Cal. 341.) A second application for
the rehearing of a cause by the same party, after his petition for rehearing has been denied,
will not be entertained. (3 Cyc. 218; Garrick v. Chamberlin, 100 Ill. 476; Smith v. Dennison,
101 Ill. 657; Bank v. Grunthal, 39 Fla. 388, 22 South. 685; Williams v. Conger, 131 U. S.
390, 9 Sup. Ct. 793, 33 L. Ed. 201; Westerfield v. Levis, 43 La. Ann. 77, 9 South. 52; Coates
v. Cunningham, 100 Ill. 463; Trench v. Strong, 4 Nev. 87; 3 Cent. Dig. 3214.)
The motion of respondents to set aside or modify the decision and order of this court is
dismissed.
Fitzgerald, C. J., dissenting:
After the order denying respondents' motion for a rehearing in this case was made, but
before the remittitur thereon went down, the counsel for respondents moved the court to
reconsider its order and to modify its decision on the appeal, pointing out what counsel
considered such grave errors in the decision and order and disastrous consequences therefrom
resulting as to justify them in making said motion; hence two questions arise for
consideration at this time: {1) Has this court power to reconsider and change its order on
a petition for a rehearing when, after its decision, but before remittitur goes down, it
discovers that it has fallen into grave error of fact or law, or of both fact and law?
hence two questions arise for consideration at this time: (1) Has this court power to
reconsider and change its order on a petition for a rehearing when, after its decision, but
before remittitur goes down, it discovers that it has fallen into grave error of fact or law, or of
both fact and law? (2) If the court has this power, did it in this case fall into such error?
On the first question I think the court has this power. Until the remittitur goes down, I
think this court has full and complete control over its decisions, judgments, and orders.
Otherwise mere inadvertence, oversight, or mistake might work grave disaster to litigants
coming before it seeking justice. It is a constitutional court of final appellate jurisdiction.
There is a maxim of the law that a good judge will not unnecessarily curb and limit his
jurisdiction, but he will, on the contrary, extend it to its utmost proper limits in order that he
may reach justice. This court has power to make its own rules to govern its procedure and to
establish its practice as it may deem to be wise and just, unless it is restrained and limited in a
matter before it by its own rules previously established, or by legislative enactment, or by
constitutional provisions. I know of no rule of this court, legislative enactment, or
constitutional provision restraining or limiting the power of the court in this respect. In a
proper case I think the court should not hesitate to exercise so salutary a power in the
administration of distributive justice.
The second question is: Has the court fallen into error of sufficient gravity to warrant its
exercise of this power? It seems to me that expressly in its original decisions, and impliedly
in its order that counsel move to modify, the court did fall into error. It also seems to me to
be, not only proper, but necessary, that the nature of those errors should be here briefly stated,
so as to ascertain whether or not they be of magnitude sufficient to justify counsel in making
their said motion, and the court in exercising the power in question. The errors, it seems to
me, briefly stated, are as follows: (1) The original decision of this court in the case decrees a
specific performance of a contract for the sale of personal property that has no special
quality of value that could not be compensated for in damages, such as an heirloom, etc.
personal property that has no special quality of value that could not be compensated for in
damages, such as an heirloom, etc. The personal property of which the court in this case made
decree of specific performance of a sale was sand upon or in a certain piece of land. I can see
nothing peculiar in the nature of such personal property that would warrant such a decree. If
the respondents had made a breach of a contract to sell such sand to appellant, I can see no
reason why money damage should not fully and adequately compensate appellant therefor. (2)
The judgment which this court orders in the case, it seems to me, bears unduly hard on
respondents. It decrees that respondents make conveyance of this sand to appellant. But (a) it
does not decree how much sand shall be so conveyed, to what depth below the surface of the
lane in which the sand exists, if any depth, the appellant shall have the right to take the sand;
and (b) the decree does not state what time the appellant shall have in which to remove the
sand from respondents' land. Shall appellant have whatever time he chooses in which to
remove the sand? If so, then not only would respondents be under great hardship, but the
public interest would suffer detriment. For the land in question, in contradistinction to the
sand thereon could never be used by either party to this action. The appellant could not, of
course, make any use of it, since the decree gives him no right to it. It is difficult to see what
use the respondents could make of the land without interfering with the decreed right of the
appellant to take the sand thereon. Therefore it would seem that, under the decree of the
court, the land on or in which the sand in question exists must forever remain unused, thus
not only working great hardship upon respondents, but also preventing the progress of the
development of the country to the detriment of the public interests. If it be said that the
appellant should have a reasonable time in which to remove the sand, then who is to judge
what is reasonable time in the matter? If appellant and respondents could not agree what time
would be reasonable, then they, at the very best that could be claimed, would have to resort to
litigation to determine the matter, and perhaps the respondents would be met with the
adjudicated fact, res judicata, that the decree of this court had given appellant all future
time in which to make removal of the sand.
be met with the adjudicated fact, res judicata, that the decree of this court had given appellant
all future time in which to make removal of the sand. Further, if the appellant had, under the
decree, all future time in which to make removal of the sand, in my opinion a serious question
arises whether this court has the power to make such a decree. Can it thus tie up land so that
no one can ever use it? If appellant is entitled to only a reasonable time to make removal,
should not the case go back to the trial court for the judge of that court or a jury therein, as the
parties and the court at the time of trial may determine, to say what time is reasonable? I think
so. The foregoing, it seems to me, are errors of this court, and they also seem to me to be of
great gravity and sufficient to warrant the court in exercising the power maintained in the first
question above stated.
It only remains to state what order should, in my opinion, be made in this proceeding. In
my dissenting opinion, when this case was first decided in this court (see 28 Nev. 509), I
stated that I thought the judgment of the trial court against the plaintiff below and appellant
here should be affirmed. As the case appears upon the record filed in this court, I still think
that was the correct and proper order for this court to make. The reasons for that opinion are
as follows: Plaintiff sued in the court below for a specific performance of an alleged contract
to convey land. The court found as a fact there was no contract to convey land, and its
judgment denying a specific performance should, I then thought, and now think, have been
affirmed. The court, however, did find that there was a contract between plaintiff and
defendants' predecessors in interest selling to plaintiff the sand on or in a certain piece of
land. But there was nothing in the record on appeal here showing that respondents had denied
plaintiff's right to the sand, or that respondents had prevented plaintiff from taking the sand in
accordance with the contract; hence, in that condition of things, there was nothing to be done
but to affirm the judgment. At the argument on the rehearing, however, counsel for
respondents admitted that, on the trial of the case in the court below, it did appear that
respondents had denied plaintiff's right to take the sand, and had also refused to permit
plaintiff to take sand, although those facts did not appear in the record on appeal here.
and had also refused to permit plaintiff to take sand, although those facts did not appear in the
record on appeal here. At the same time counsel for respondents expressed their willingness
and consent that this court should not simply affirm the judgment of the trial court, but should
reverse said judgment and order a new trial of the case in the court below.
In view of those two important facts appearing at the trial below and not appearing in the
record on appeal here, and the said consent of counsel, I think this court might perhaps now
properly make either one of two orders: (1) An order affirming the judgment of the trial court,
thus leaving to a future action the determination of the rights of the parties should
respondents in future refuse to permit plaintiff to take the sandthus going strictly by the
record before it here on appeal; and (2) reverse the judgment of the trial court, and order that
a new trial of the case be had in that court. On the whole I think justice could be more likely
reached in the case by the latter course, for the parties could then have their respective rights
in the premises determined without the expense and trouble of a new action. The plaintiff
could not reasonably and justly complain of such an order, because, in my opinion, it is more
than he is entitled to under the case made by him here, and, in addition, that is what he asked
of this court in his appeal to it. Respondents could not reasonably and justly complain of such
an order because they have consented thereto.
It seems to me that this court should enter an order herein that the judgment of the trial
court is reversed, and a new trial of the case granted. I therefore dissent from the opinion of
the majority of the court on this matter.
____________
29 Nev. 149, 149 (1906)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1906.
____________
29 Nev. 149, 149 (1906) State v. Murphy
[No. 1690.]
THE STATE OF NEVADA, ex rel. GEORGE BACHELDER, Relator, v. M. A. MURPHY,
District Judge of the First Judicial District of the State of Nevada, Respondent.
1. Insane PersonsActionsTrial Pending Insanity. Where relator's complaint for divorce against his wife
alleged that the acts constituting the cause of action were committed by defendant before she became
insane, her subsequent insanity constituted no ground for the trial court's refusal to try the cause which was
at issue, during the continuance of such insanity.
2. MandamusPetitionAllegationsAdmission. Where the trial judge did not deny or answer the allegation
of a petition for mandamus, that he had refused ever to try petitioner's divorce case on account of the
insanity of the defendant, such allegation would be regarded as admitted.
3. JudgesDefective ProceedingsDuty of Judge to Point Out Defect. Where a trial judge was doubtful
concerning his jurisdiction to try a cause because of defects in the service of the summons, it was his duty
to call the attention of counsel to what he regarded as the defects in the proceedings in order that they
might be corrected by amendment, and not to arbitrarily refuse to try the cause by reason thereof.
Original proceeding. Mandamus by the State, on relation of George Bachelder, against the
First Judicial District Court; M. A. Murphy, District Judge. Writ granted.
Mack & Farrington and John Lothrop, for Relator.
E. E. Roberts, for Respondent.
This is a proceeding in mandamus to compel the respondent, as judge of the First Judicial
District Court, to proceed to hear and determine the case of George Bachelder, Plaintiff, v.
Rose Ann Bachelder, Defendant, alleged to be pending in said district court.
In his petition relator, among other things, alleges: That he commenced his action for
divorce on the 23d day of February, A. D. 1905; that on the 25th day of March, 1905, the
defendant appeared in the action through her attorneys, Messrs. Curler & King, they filing an
answer to the complaint; that on the 4th day of December, 1905, the respondent set the case
for trial before a jury on the 21st day of December, 1905; that on the said 21st day of
December, 1905, plaintiff's attorney in said case, C. E. Mack, Esq., appeared and requested
the respondent to proceed with the trial of the case; that respondent refused to do so, giving
and stating his reasons for so refusing as follows: The said defendant is insane and confined
in the Asylum for Mental Diseases at Reno, Nevadaand that this relator, through his
attorney, the said C. E. Mack, thereupon made a demand upon the said respondent to proceed
with the trial of said action, but that the said respondent then and there refused and does now
refuse to proceed with the trial thereof, and will not proceed to the trial of said action without
an order of this court compelling him so to do. The respondent's refusal to proceed with the
trial of the case is based on the fact of the defendant's insanity. The complaint, however,
alleged that the acts constituting the cause of action in plaintiff's favor against the defendant
were committed by the defendant before the insanity occurred.
Under these circumstances, I think the fact of the insanity of the defendant was not
sufficient to justify the respondent in his refusal to proceed with the trial of the case. In his
return or answer to the alternative writ herein, the respondent sets up other matters in
justification of his refusal to proceed with the trial, to wit, a doubt whether or not the
summons in the action had been properly served, the absence of the defendant's
attorneys, etc.
return or answer to the alternative writ herein, the respondent sets up other matters in
justification of his refusal to proceed with the trial, to wit, a doubt whether or not the
summons in the action had been properly served, the absence of the defendant's attorneys, etc.
As the case stands on the petition and answer, these matters cannot avail him under his
admission that he would never try the case while defendant was insane. He did not deny or
answer the allegation in the petition that on account of the insanity of the defendant he would
not even in future try the case. The allegation stands admitted by the fact of its not being
denied. The other matters alleged in the answer to the petition might perhaps have justified
the respondent in his refusal to proceed with the trial at the time mentioned. But, if such were
the case, he should have signified to counsel his willingness and intention to proceed with the
trial at the proper time, and also have let them know wherein he deemed their proceedings
irregular and insufficient, so that they could have amended and corrected them, and at some
time gotten a trial of the case.
Therefore, without passing on the question of the sufficiency of the service of summons in
the case, or any of the other matters stated in the answer of the respondent, except the single
one of the sufficiency of defendant's insanity as a bar to proceeding with the orderly hearing
and determination of the case, it is ordered that the mandate of this court issue to the
respondent that he proceed with the hearing and determination of the case, of course, first
satisfying himself upon all questions of service of summons, guardianship, and jurisdiction.
____________
29 Nev. 152, 152 (1906) Lutz v. District Court
[No. 1698.]
MARTIN LUTZ, Petitioner, v. THE DISTRICT COURT OF THE FIRST JUDICIAL
DISTRICT OF THE STATE OF NEVADA, IN AND FOR ORMSBY COUNTY, and
M. A. MURPHY, Judge of said Court, Respondents.
1. DivorceAlimonySuit MoneyOrdersContemptFindingsCommitment. A finding on an application
for alimony, etc., that defendant had property, real and personal, and for more than thirty years last past had
been in the main employed and had earned a monthly competence more than sufficient to support himself
and family, and was then so employed, did not constitute a finding that defendant had present ability to
comply with an order requiring him to pay alimony and suit money, and was therefore insufficient to
sustain an order committing him to jail until he made the payments required.
2. SameAffidavit. Where an affidavit for an order committing defendant for contempt for failure to comply
with an order requiring payment of alimony and suit money in a divorce case failed to allege petitioner's
ability to make the payments required of him or facts from which such ability might be properly inferred, it
was fatally defective.
Original proceeding. Certiorari by Martin Lutz to review an order made by Hon. M. A.
Murphy, District Judge of the First Judicial District of the State of Nevada, Ormsby County,
committing petitioner to jail until he complied with an order requiring him to make certain
payments of alimony and suit money to his wife for the prosecution of a divorce case.
Commitment annulled.
William Woodburn, for Petitioner.
Samuel Platt, for Respondent.
This is a proceeding in certiorari. Petitioner herein was defendant in a divorce suit in the
court below. Said court made an order that he pay for the benefit of his wife, the plaintiff in
the said divorce suit, the sum of $150 for attorney's fees, $100 for costs of suit, and $35 a
month alimony pendente lite. Petitioner, failing to make said payments, was cited by the court
to appear and show cause why he should not be punished for contempt of court. He appeared
and as cause and excuse for his failure to make the payments set up his inability to make
the same. On the hearing of the application for alimony, etc., the court after examination
had made the following finding of fact: "That defendant has property, real and personal,
and for more than thirty years last past has been in the main employed, and has earned a
monthly competence more than sufficient to support himself and family, and is now so
employed."
and excuse for his failure to make the payments set up his inability to make the same. On the
hearing of the application for alimony, etc., the court after examination had made the
following finding of fact: That defendant has property, real and personal, and for more than
thirty years last past has been in the main employed, and has earned a monthly competence
more than sufficient to support himself and family, and is now so employed. No other
finding of fact was ever made, except the finding that the petitioner did not comply with the
order for payments. Subsequently the court, presumably on said finding, made an order that
the petitioner be committed to the county jail until he made said payments.
This finding is fatally defective. It is inadequate to sustain the order committing him to
jail. FirstIt does not find as a fact that the petitioner was able to comply with the order of
the court to make the payments required of him. SecondIt does not find the facts from
which such ability could be reasonably inferred. It finds that the petitioner had property,
and that he had been employed for many years. Both of said facts may have been true, and yet
the petitioner may have been totally unable to comply with the order of the court to make the
payments required of him. He may have had property, but totally insufficient for the demands
made upon him; and he may have been employed as stated, and yet all the money coming
from such employment may have been spent, and, moreover, legitimately and properly spent.
It should be stated that the affidavit on which the contempt proceeding was started did not
allege the petitioner's ability to make the payments required of him, or such facts that such
ability might be properly inferred therefrom.
The affidavit showed no more than did the finding, and the affidavit itself is jurisdictional.
See the following: Comp. Laws, 3564; Adams v. Haskell, 6 Cal. 316, 65 Am. Dec. 517; Ex
parte Spencer, 83 Cal. 460, 23 Pac. 395, 17 Am. St. Rep. 266; Galland v. Galland, 44 Cal.
478, 13 Am. Rep. 167; Ex parte Cottrell, 59 Cal. 421; Ex parte Gordan, 95 Cal. 377, 30 Pac.
561; Ex parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11 Am. St. Rep. 207; State ex rel.
Olson v. Allen, 14 Wash.
14 Wash. 684, 45 Pac. 644; Phillips v. Welch, 12 Nev. 164; Batchelder v. Moore, 42 Cal.
414; 9 Cyc. 38; Toring v. Cannon, 2 Utah, 594.
The order of the court committing petitioner to jail was without its jurisdiction, and is
therefore void.
Ordered that petitioner be released from imprisonment forthwith.
____________
29 Nev. 154, 154 (1906) Chapman v. Justice Court
[No. 1692.]
ABRAHAM CHAPMAN, Petitioner, v. THE JUSTICE COURT OF TONOPAH
TOWNSHIP, COUNTY OF NYE, STATE OF NEVADA, and HON. J. P. BRISSELL,
the Justice of the Peace Presiding in said Court, Respondents.
1. Criminal LawCertiorariExistence of Remedy by Appeal. Comp. Laws, 3531, provides that certiorari may
be granted in all cases where an inferior tribunal or officer, exercising judicial functions, has exceeded the
jurisdiction of such tribunal or officer, and there is no appeal, nor any plain, speedy, and adequate remedy,
Comp. Laws, 2528, 4644, in substance provide that in any criminal action defendant may appeal from any
judgment of a justice of the peace to the district court. Held, that certiorari does not lie from the supreme
court to review a conviction before a justice on the ground that the statute authorizing the conviction is
unconstitutional, since the constitutional question may be raised before the justice and an appeal taken from
any judgment rendered by him.
2. SameScope of Remedy. Certiorari will lie from the supreme court to review a judgment by the district
court rendered on an appeal from a conviction before a justice of the peace, though it is claimed that the
district court as well as the justice court has no jurisdiction.
3. SameRight of ReviewWaiver. After the issuance by the supreme court of a writ of certiorari, it was not
too late to question the jurisdiction of the court to proceed under it, the motion to quash and dismiss the
writ having been made at the first opportunity at the hearing, and argued before the argument upon the
merits, and especially in view of the fact that the writ was issued without a hearing, on the understanding
that opposing counsel reserved the right to question the appropriateness of the remedy upon the hearing on
the return of the writ.
4. SameRemedy by AppealLapse of Time for Appeal. Comp. Laws, 3531, provides that certiorari may be
granted in all cases where an inferior tribunal or officer, exercising judicial functions, has exceeded the
jurisdiction of such tribunal or officer, and there is no appeal, nor any plain, speedy, and adequate remedy.
Held, that certiorari will not lie in a criminal case merely because the time for taking an appeal has been
suffered to elapse.
Original proceeding. Certiorari by Abraham Chapman to review his conviction of a
misdemeanor before the Justice Court of Tonopah Township, Nye County, State of Nevada.
Writ dismissed. Petition for rehearing. Denied.
A. R. Needles and E. P. Moran, for Petitioner.
James G. Sweeney, Attorney-General, and W. B. Pittman, District Attorney of Nye County,
for Respondents.:
I. The writ of certiorari is not the proper remedy in this cause, for the reason that
petitioner has a plain, complete, speedy, and adequate remedy by an appeal to the District
Court in and for Nye County. Section 3531 of Compiled Laws provides that The writ shall
be granted in all cases when an inferior tribunal, officer, or board exercising judicial functions
has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in
the judgment of the court, any plain, speedy, and adequate remedy.
II. The writ of certiorari lies only in those cases in which in the exercise of judicial
functions an excess of jurisdiction has occurred, and in which there is no appeal, etc.
Unless the case be brought within both these conditions, the writ must be dismissed.
(Connery v. Swift, 9 Nev. 39; Bennett v. Wallace, 43 Cal. 25; Miliken v. Huber, 21 Cal. 166;
Faust v. Mason, 47 Cal. 7; Tucker v. San Francisco County and City Justice Court, 120 Cal.
512; Nevada Central R. Co. v. District Court, 21 Nev. 409; People v. County Judge, 40 Cal.
479; Newman v. Superior Court, 62 Cal. 545; Cereghino v. Finichio, 54 Cal. 603; McCue v.
Superior Court, 71 Cal. 545; Weill v. Light, 98 Cal. 193; Lewis v. Gilbert, 5 Wash. 534;
Seattle and M. R. Co. v. State, 5 Wash. 807; Slavonic Illyric Mut. Ben. Assn. v. Superior
Court of Santa Clara County, 4 Pac. 500; In re Stuttmeister, 71 Cal. 322.) The test by which
to judge of defendant's right to the writ of certiorari is not whether he has a right to appeal to
the supreme court of the state, but whether or not he has a right of appeal from the inferior
court to any superior court. Section 4644 of the Compiled Laws provides that the defendant
may appeal to the district court of the county from any judgment rendered in the justice
court or other inferior tribunal in a criminal action; and that the action in the appellate or
district court shall be tried de novo.
the district court of the county from any judgment rendered in the justice court or other
inferior tribunal in a criminal action; and that the action in the appellate or district court shall
be tried de novo. Defendant could there raise the question of the constitutionality of the law
under which the complaint is drawn, and his remedy would be plain, speedy, and adequate.
Section 2528 also gives the district courts jurisdiction to hear and determine appeals from
justice or other inferior courts in all cases of a criminal nature. It is a rule of general
application that certiorari is not an appropriate remedy if efficient relief can be, or could have
been, obtained by a resort to other available modes of redress or review. (6 Cyc. p. 742, and
a long line of cases therein cited.)
III. A party is not entitled to the writ if he fails to exercise due diligence in protecting his
interest in the action or proceeding in question. (Herman v. Butler, 59 Ill. 225; Reilly v.
Prince, 37 Ill. App. 102; People v. Woods, 39 N. Y. App. Div. 660.) The writ will not be
awarded unless the party has first applied to the primary court or to a superior court for relief,
or shows that they are incompetent to set in the matter, or that such an application would be
futile. (Ex parte Boynton, 44 Ala. 261; Ex parte Marr, 12 Ark. 84; State v. Gill, 137 Mo. 627;
Lewis v. Brewer, 51 Me. 108; State v. Meyer, 52 La. Ann. 255.) Petitioner herein should have
appealed from the judgment of the justice court to the district court. Should the district court
have decided adversely to defendant, the offense being that of a misdemeanor and no appeal
lying therefrom to this court, he then would have been entitled to his writ of certiorari to test
the jurisdiction of both lower courts. He should have first exhausted his appellate remedy.
Certiorari is not concurrent with appeal in this state, otherwise his petition should be granted.
The writ of certiorari is not a writ of right unless so made by statute, and the court to which
application is made is vested with judicial discretion to grant or refuse the writ. (Woodward v.
Gibbs, 61 Iowa, 398; Special Drainage Dist. v. Griffin, 134 Ill. 330; Burnett v. Douglas
County, 4 Or. 388; People v. Board of Police Commissioners, S2 N. Y. 506; Libby v. West
St.
Commissioners, 82 N. Y. 506; Libby v. West St. Paul, 14 Minn. 248.)
By the Court, Norcross, J.:
This is an original proceeding in certiorari. The above-named petitioner was, on the 21st
day of April, 1906, convicted in the Justice Court of Tonopah Township, County of Nye,
upon a charge of misdemeanor in having violated the provisions of that certain act of the
legislature of this state, entitled An act to provide for licensing itinerant and unsettled
merchants, traders, peddlers and auctioneers, approved March 24, 1905. (Stats. 1905, p. 260,
c. 53.) It is claimed by petitioner that the said justice court was without jurisdiction in the
premises, because the act under the provisions of which the petitioner was convicted is
unconstitutional. This proceeding is brought to review and annul the judgment.
Upon the hearing upon the return of the writ, the respondents appeared by their attorneys
and moved to quash and dismiss the writ upon the following grounds: That the writ of
certiorari is not the proper remedy in this case for the reason that petitioner has a plain,
complete, and adequate remedy by an appeal to the District Court of the Third Judicial
District, in and for Nye County, State of Nevada; that the petition in this cause does not
contain facts sufficient to warrant this court in issuing said writ. Counsel for petitioner, in
their brief, set forth five reasons why they claim that certiorari is a proper remedy herein, as
follows:
FirstThat there is no appeal under the law, in this case. SecondThat respondents'
motion to quash comes too late, and cannot be entertained, the discretionary stage having
passed with the issuance of the writ; and respondents having filed their return thereto have
acknowledged the jurisdiction of this court to hear and determine this question. ThirdThat
even though the right of appeal existed in this case under the law, it could afford no adequate
remedy, and therefore certiorari is a proper and is the only proper proceeding. FourthThat
even though the right of appeal existed, certiorari would not thereby be inhibited.
tiorari would not thereby be inhibited. FifthThat for the purpose of the hearing on
respondents' motion, the allegations of the petition as to the unconstitutionality of the law in
question are to be taken as true, and the court should proceed to hear the case on the merits.
The section of the practice act of this state governing the issuance of the writ of certiorari
reads as follows: This writ may be granted on application by any court of this state, except a
justice's, or recorder's, or mayor's court; the writ shall be granted in all cases when an inferior
tribunal board, or officer, exercising judicial functions, has exceeded the jurisdiction of such
tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain,
speedy, and adequate remedy. (Comp. Laws, 3531.)
The contention is made that there is no appeal from the judgment of the justice of the
peace for the reason that he had no jurisdiction to try the case, because of the alleged fact that
the law, under which the case was prosecuted, is unconstitutional. Furthermore, that there is
no legal method of raising the question of the unconstitutionality of a law in a justice's court.
Counsel cite no authorities supporting their contention in this respect, and we think their
position clearly untenable. It is the practice to raise questions of jurisdiction, and questions
which go to the sufficiency of the complaint to charge a public offense, in the justice court, as
well as in the district court. It is not reasonable that the legislature intended to provide a
system of criminal practice in justice courts that would not permit a defendant raising
questions which go to the right or propriety of the justice proceeding with a trial of the case.
(Cowdery's Justices' Treatise, vol. 2, 2267, 2268.)
If a justice proceeds to try a case upon the theory that a statute, which is involved in the
action, is valid when it is not, a judgment rendered in the case may be void, but the right of
appeal would still lie. (Comp. Laws, 2528, 4644; Hastings v. Burning Moscow Co., 2 Nev.
97; Jumbo Mining Co. v. District Court, 28 Nev. 253, 81 Pac. 153; Ex parte Rosenblatt, 19
Nev. 440, 14 Pac. 298, 3 Am. St. Rep. 901.)
It is true, as contended, that if the justice court had not jurisdiction to try the case,
because of the unconstitutionality of the act, the district court, also, would not.
jurisdiction to try the case, because of the unconstitutionality of the act, the district court,
also, would not. The district court, however, would have power to determine the
jurisdictional question by passing upon the constitutionality of the law, and if it erred in its
decision, the same could be reviewed upon certiorari by this court.
The Supreme Court of California, upon a statute practically identical with that of this state,
has taken a contrary view as to whether certiorari will lie to review a judgment of the
superior court rendered on an appeal from an inferior court, where it is claimed that the
superior court, as well as the inferior court, is without jurisdiction. (Valentine v. Police Court,
141 Cal. 615, 75 Pac. 336.) This view, we think, is placing relief by certiorari within too
narrow limits and is not so required by the language of the statute. This court, in practice, has
recognized the propriety of issuing the writ to review proceedings in the district court in
excess of jurisdiction, had upon appeal from a justice court. (Peacock v. Leonard, 8 Nev. 84;
Martin v. District Court, 13 Nev. 85.)
The contention of counsel that, the court having issued the writ, it is too late to question the
jurisdiction of the court to proceed under it, is without merit. The motion to quash and
dismiss the writ was made upon the first opportunity upon the hearing and was argued before
the argument upon the merits, besides, it was the desire of respondents' counsel to have this
question determined before a hearing upon the merits. Furthermore, the writ was issued
without a hearing, with the understanding that opposing counsel reserve the right to question
the appropriateness of the remedy upon the hearing upon the return of the writ.
It is earnestly contended by counsel for petitioner that the decisions of this court are not in
harmony upon the question as to whether certiorari will lie where there is the right of appeal
and that the true rule is stated in the case of Paul v. Armstrong, 1 Nev. 82, which rule, it is
claimed, was recognized by implication at least, in the case of State v. Mack, 23 Nev. 359,
47 Pac. 763, 62 Am. St. Rep. 811. In effect, the opinion of Brosnan, J., in the case of Paul v.
Armstrong, supra, held, A writ of certiorari is not inhibited to a party aggrieved in all
proceedings or actions wherein a right of appeal is given."
aggrieved in all proceedings or actions wherein a right of appeal is given. In considering the
case of Paul v. Armstrong it should be noted that Beatty, J., did not participate in the hearing,
and that Lewis, C. J., concurred in the affirmance of the judgment below, but for reasons
different from those given by Justice Brosnan. It will be seen, therefore, that the opinion of
Brosnan, J., does not have the force of an opinion of this court. Besides, Justice Brosnan, in
his opinion, held that the case was one in which an appeal would not lie, and in two
subsequent cases this court has held to the same effect. (Wiggins v. Henderson, 22 Nev. 108,
36 Pac. 459; Martin v. District Court, 13 Nev. 90.) The case was, therefore, one in which it
was entirely proper to proceed in certiorari under the rule that the remedy is not appropriate
where the right of appeal exists. It is interesting here to note that in the case of Golding v.
Jennings, 1 Utah, 135, cited by counsel for petitioner, that court adopted the portion of the
opinion of Brosnan, J., in the Paul v. Armstrong case, relative to the writ of certiorari, as a
correct statement of the rule governing the function of the writ. Subsequently, in the case of
Saunders v. Nursery, 6 Utah, 438, 24 Pac. 532, the case of Golding v. Jennings was
overruled; the court in its opinion saying: Upon further consideration of the question, the
court is of the opinion that a writ of certiorari or review will not lie where the right of appeal
exists.
We cannot agree with counsel for petitioner that the rule as declared by Brosnan, J., in the
case of Paul v. Armstrong was recognized, by implication at least, in the case of State v.
Mack, supra. The following sentence from the opinion in the latter case, we think, sufficiently
answers counsel: Counsel for respondent concede that the special plea to the jurisdiction of
the district court, and the proceedings thereon, are regular and proper, and that the
proceedings in this court upon certiorari are proper and regular, therefore no opinion is given
upon these questions. In every case where this court has passed directly upon the question it
has held that the remedy by certiorari cannot be resorted to where the right of appeal is
afforded. (Leonard v. Peacock, 8 Nev. 162; Nevada Central R. R. Co. v. District Court of
Lander County, 21 Nev. 411
21 Nev. 411, 32 Pac. 673; Phillips v. Welch, 11 Nev. 193; Wiggins v. Henderson, 22 Nev.
107, 36 Pac. 459.)
The Supreme Court of California has uniformly held that proceedings in certiorari will not
lie where an appeal could have been resorted to. (Gray v. Schupp, 4 Cal. 185; Clarey v.
Hoagland, 13 Cal. 173; People v. Shepard, 28 Cal. 115; Bennett v. Wallace, 43 Cal. 25; C. P.
R. R. Co. v. Placer Co., Id. 365; Stuttmeister v. Superior Court, 71 Cal. 322, 12 Pac. 270;
McCue v. Superior Court, 71 Cal. 545, 12 Pac. 615; Stoddard v. Superior Court, 108 Cal.
303, 41 Pac. 278; Valentine v. Superior Court, 141 Cal. 615, 75 Pac. 323; Wittman v. Police
Court, 145 Cal. 474, 78 Pac. 1052.) This rule is in accordance with the great weight of
authority, especially in states having statutes similar to ours. (People v. Lindsey, 1 Idaho, 394;
Ramsey v. Pettengill, 14 Or. 207, 12 Pac. 439; Saunders v. Nursery, 6 Utah, 348, 24 Pac.
532; State v. District Court, 24 Mont. 499, 62 Pac. 820; 4 Enc. Pl. & Prac. 51; 6 Cyc. 742,
and authorities cited.) The fact that petitioner has neglected to take advantage of his right of
appeal and has suffered the time to lapse within which an appeal could have been taken does
not warrant the issuance of the writ. (Faust v. Mason, 47 Cal. 7; McCue v. Superior Court,
supra; Stuttmeister v. Superior Court, supra; Ramsey v. Pettengill, supra; Roy v. Whitford, 9
Nev. 370; 6 Cyc. 742.)
The additional reasons urged by counsel in support of their contention that certiorari is an
appropriate remedy in this case, we think, are fully answered by the rule and authorities
heretofore cited. Counsel for petitioner have presented a very elaborate argument and brief in
support of their contention that the act for the violation of which petitioner was convicted is
unconstitutional; but, under the view which we have taken of this case, the interesting and
important questions so ably presented cannot be determined in this proceeding.
For the reasons given, it is ordered that the writ be dismissed.
Talbot, J.: I concur.
On Petition for Rehearing.
There are no points set up in the petition not presented in the briefs heretofore filed in this
cause and covered by the decision rendered. A further examination of the questions involved
has not occasioned any doubt as to the correctness of the conclusion heretofore reached.
The petition is denied.
____________
29 Nev. 162, 162 (1906) Gerber v. Justice Court
[No. 1693.]
B. GERBER, Petitioner, v. THE JUSTICE COURT OF TONOPAH TOWNSHIP, COUNTY
OF NYE, STATE OF NEVADA, and J. P. BRISSELL, Justice of the Peace Presiding in
said Court, Respondents.
Original proceeding. Certiorari by B. Gerber to review his conviction of misdemeanor
before the Justice Court of Tonopah Township, Nye County, State of Nevada. Writ
dismissed.
A. R. Needles and E. P. Moran, for Petitioner.
James G. Sweeney, Attorney-General, and W. B. Pittman, District Attorney of Nye County,
Nevada, for Respondents.
This is an original proceeding in certiorari. The questions involved in this case are
identical with the case of Abraham Chapman v. Above-Named Respondents (No. 1692), 29
Nev. 154, ante.
For the reasons stated in the last-mentioned case, it is ordered that the writ be dismissed.
____________
29 Nev. 163, 163 (1906) Stretch v. Montezuma Mining Co.
[No. 1678.]
RICHARD H. STRETCH, Respondent, v. MONTEZUMA
MINING COMPANY, Appellant.
1. StipulationsRequisitesWriting. An oral stipulation made by defendant's attorney, that it would make an
effort to settle with plaintiff, failing which it would file an appointment of a state agent upon whom service
might be had, was unenforceable under rule 27 of the district court requiring stipulations to be in writing.
2. Default Vacated. Defendant, a foreign corporation, had knowledge for more than five months before entry of
its default that the suit was pending, but was not aware that service had been made until ten days after
default entered. After knowledge that service had been secured, defendant wired its local attorney to
defend. As state agent he had forwarded copies of the complaint and summons in due time to defendant's
supposed address; but they were sent to defendant's general manager, who had recently absconded, without
the knowledge of such state agent at the time the papers were sent. After the entry of the default, it was
necessary to take the deposition of plaintiff, who was a non-resident, before judgment could be entered.
Held, that defendant was not guilty of inexcusable delay, and was entitled to a vacation of the default and
leave to answer, under Comp. Laws, 3163, providing that the court may allow an answer to be filed after
the time limited and relieve a party from an order or proceeding, taken against him by mistake,
inadvertence, surprise, or excusable neglect.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; B. F. Curler, Judge.
Action by Richard H. Stretch against the Montezuma Mining Company. From an order
denying defendant's application to open a default and permit defendant to answer, defendant
appeals. Reversed.
Alfred Chartz, for Appellant:
I. In the case of State of Nevada v. Consolidated Virginia Mining Company, 13 Nev. 194,
it appeared that James G. Fair as managing agent of the corporation was served with
complaints and summons in two suits, and that he handed said papers to the attorney of the
corporation, and the attorney answered only to one suit, and the state took default for the
other. The attorney of the corporation made affidavit that he had never known of or heard of
but one suit, and it was held that the failure of the attorney to appear in both actions was an
honest mistake, without fraud or negligence on the part of the corporations, their
superintendent, or attorney, and that the facts stated in the affidavits presented on
motion to set aside the defaults made out a case of excusable neglect.
actions was an honest mistake, without fraud or negligence on the part of the corporations,
their superintendent, or attorney, and that the facts stated in the affidavits presented on motion
to set aside the defaults made out a case of excusable neglect.
II. There are far greater reasons to excuse the defendant at bar. Instead of the managing
agent of the corporation receiving the summons and complaint, it was only the resident agent
upon whom substituted service of summons could be made, and, instead of the attorney of the
corporation receiving the same from the managing agent, the resident agent sent the same by
mail. The rule as to defaults is found at pp. 164, 165, vol. 6, Ency. Pl. & Pr., and the
authorities therein cited to the effect that gross negligence of the defendant is sufficient to
deny application for relief. (Clark v. Lyon, 2 Hilt. N. Y. (91, where the negligence of a clerk
was considered sufficient to open a default; note 5, p. 165, vol. 6, Ency. Pl. & Pr. and the
notes connected therewith.)
James T. Boyd and A. N. Salisbury, for Respondent:
I. A motion to open or vacate a default is addressed to the sound legal discretion of the
trial court on the particular facts of the case. (Black, Judgments, vol. 1, sec. 354; 6 Ency. Pl.
& Pr. p. 232; Haley v. Eureka County Bank, 20 Nev. 410.)
II. Each motion to open a default must be decided on its own peculiar facts. Our supreme
court says, in the case of Horton v. New Pass M. Co., 21 Nev. 184, and again in State v.
Mining Company, 13 Nev. 202, it is difficult to lay down any general rule for determining
when a default should be opened. Each case must be determined upon its own peculiar facts.
It is safe, however, to say that courts should be liberal in such matters where a meritorious
defense is shown to the whole or the substantial part of an action, and it is apparent that the
failure to answer is the result of a mistake or of negligence which is not so gross as to be
inexcusable, or to indicate trifling with the court, to the end that cases may be determined
upon their merits. * * *
III. An order refusing to vacate a default rests wholly with the discretion of the trial
court and will not be disturbed on appeal, except on the clearest proof that there has
been an abuse of this discretion.
with the discretion of the trial court and will not be disturbed on appeal, except on the clearest
proof that there has been an abuse of this discretion. In Nichol v. Weldon, 130 Cal. 667, the
Supreme Court of California uses the following language: The granting or denying a motion
to set aside a default of a defendant is so largely a matter of discretion with the trial court that,
unless it is clearly made to appear that there has been an abuse of this discretion, this court
declines to set aside its order. The same language is adopted in the cases of Winchester v.
Black, 134 Cal. 125; Howe v. Independence M. Co., 29 Cal. 72; Coleman v. Rankin, 37 Cal.
247.
Alfred Chartz, for Appellant, in reply:
I. Counsel for respondent has judiciously avoided reference to the cases on which
appellant stands. (State v. Consolidated Virginia Mining Company, 13 Nev. 194.) That case
has not as yet been reversed, but can be at any time.
On May 14, 1904, this action was commenced and garnishment levied upon moneys in a
bank in Reno; but summons was not served at that time because plaintiff's attorneys were
informed that no certificate of appointment of a state agent upon whom service could be
made had been filed by the defendant corporation. From the affidavits which were presented
on the hearing of the motion it appears that one Roeder, who was the secretary and general
manager of the company, had left Boston on May 14, 1904, informing the directors that he
was going to the mines at Montezuma, Nevada, but that, instead of doing so, he absconded,
owing the company over $12,000, judgments for which and a warrant for his arrest have since
been obtained in Massachusetts, and that he could not be found. One Rowley, a director and
general counsel for the defendant, came from Boston and appeared at the office of the
plaintiff's attorneys, in Reno on July 1, 1904, and stated that he had come west for the
purpose of trying to adjust the claims against the company. He offered an amount in
settlement of plaintiff's demand which his counsel were unwilling to accept or recommend
to their client.
which his counsel were unwilling to accept or recommend to their client. At that time one of
the attorneys for the plaintiff gave Rowley copies of the complaint and summons, told him
that the company was liable for not having the authority of a state agent on file, and requested
him to have the appointment of such an agent made and filed, so that service could be
obtained, or that he appear in the action and answer or waive service. He promised to have
such appointment filed and to make such appearance if the president of the company in
Boston were not able to settle with the plaintiff at West Seattle; but neither he nor any of the
officers of the company endeavored to make this assurance good or to compromise with the
plaintiff. Rowley returned to Massachusetts, and states in his affidavit that from September
15th until October, 1904, he was too ill to do any work.
Although the attorneys for both parties were informed and may have believed in July that
there was no state agent on whom service could be made, those for the plaintiff ascertained
later that the appointment of Alfred Chartz as such agent was, and since the previous
December had been, on file with the secretary of state, and they had him served on October
24, 1904. He mailed the copies of the complaint and summons to the Montezuma Mining
Company, 373 Washington street, Boston, Massachusetts, which he believed to be the office
of the defendant. After lying in the postoffice there for about a month, they were returned to
him stamped, Present address unknown. He then remailed them on December 12, 1904, to
M. L. Roeder, 373 Washington street, that city. Some days later he received a letter from
Rowley, at 638 Old South Building, Boston, inquiring about some timber lands or contracts
that belonged to the defendant, and to this he replied, informing Rowley regarding the service
and mailing of the copies of the summons and complaint, and the latter wired him promptly,
and on December 20, 1904, to defend the suit and interpose a demurrer, and telegraph the
Boston postmaster to deliver the papers to him. Rowley secured them on the next day and
mailed them back to Chartz, who, before their arrival, by mistake and thinking that the suit
was pending in Esmeralda County, where the company's properties are situated, forwarded
a demurrer to the clerk of the court at Hawthorne.
properties are situated, forwarded a demurrer to the clerk of the court at Hawthorne. Later,
and after the return of the papers from Rowley to Chartz, and before the entry of judgment,
and previous to the making of an order for the taking of the testimony of the plaintiff by
deposition in the State of Washington, the motion to set aside the default, and affidavits, with
a copy of the proposed answer on the merits, were filed.
It is not claimed that the giving of the copies of the complaint and summons to Rowley in
Reno on July 1st was a sufficient service, or authorized the entry of a default; and the
attorneys for both parties understood to the contrary. Those for the plaintiff wrote Rowley
later, and in August, urging that he appear in the action or have a state agent appointed upon
whom service could be made. The default was entered on December 10th on proof only of the
service upon Chartz on October 24th. The defendant had knowledge of the pendency of the
suit from the time the copies were given to Rowley in July, if not earlier, and for more than
five months before the default was entered, and its attorney, although excusable during the
time he was ill, was derelict in failing to perform a moral obligation in not having within a
reasonable period made, or induced the officers of the company to make, some effort to settle
with the plaintiff, or, failing in this, in not having appeared in the action, or filed the
appointment of a state agent, as he had promised; but this stipulation could not be enforced,
because it was not in writing, as required by rule 27 of the district courts. (Haley v. Eureka
County Bank, 20 Nev. 425, 22 Pac. 1098.) The promise, also, as did the letter of similar
import written by Rowley to the attorney for the plaintiff, depended upon a contingency
which had no specified time for its performance. No provision for entering default or for
other penalty was provided in the event that the attorney failed to have the case settled, and
also omitted to appear in the action and have a state agent appointed upon whom service
could be made, as he had agreed. The ascertainment by counsel for plaintiff later that Chartz
was such agent, and the service upon him, relieved plaintiff of any necessity for having such
appearance or appointment made. Under the well-settled rule that penalties and forfeitures
are not favored or enforced unless expressed, the defendant did not become liable for any
when none was provided, and there was no written stipulation, and the defendant did not
lose its right under this agreement to have the default set aside, if otherwise entitled,
when no such result was specified or contemplated.
well-settled rule that penalties and forfeitures are not favored or enforced unless expressed,
the defendant did not become liable for any when none was provided, and there was no
written stipulation, and the defendant did not lose its right under this agreement to have the
default set aside, if otherwise entitled, when no such result was specified or contemplated.
Although the company knew for more than five months that the suit was pending, still it
was not aware that service of summons had been made or that necessity for answering existed
until about ten days after the default had been entered. Upon receipt of knowledge that
service had been secured, the defendant proceeded with due diligence and promptly wired the
local attorney to defend. As state agent he had forwarded the copies of the complaint and
summons in due time to the supposed address of the defendant. We think the fact that these
papers, and consequent upon them knowledge of their service, failed to reach the company
until after default had been entered, because they had been sent to the address of Roeder
under the belief that he was still the general manager of the company, when he had recently
defaulted and absconded, should not deprive the defendant of making a defense and having
the claims and rights of the parties determined by trial. The sending of the papers to Roeder
without knowledge of his flight, after he had managed the business of the company in this
state, caused the failure to answer in time, and is excusable; and to deny the privilege of
defending because an answer or demurrer was not filed before knowledge of service, would
be unnecessarily severe under the circumstances shown. As the taking of the deposition of the
plaintiff was to be ordered and secured before judgment could be entered, it would seem that
the opening of the default could have caused little delay or hardship.
Every case depends largely upon its own facts, but courts are liberal in relieving
defendants from defaults when they offer a good defense and have not been guilty of
inexcusable delay. This is especially true under statutes which, like section 68 of our practice
act (Comp. Laws, 3163), provide that the court may allow an answer to be filed after the time
limited, and may upon such terms as may be just relieve a party from a judgment, order, or
other proceeding taken against him by mistake, inadvertence, surprise, or excusable
neglect, and as heretofore held by this court stronger reasons exist for reversing an order
refusing to set aside, than one opening, a default.
party from a judgment, order, or other proceeding taken against him by mistake, inadvertence,
surprise, or excusable neglect, and as heretofore held by this court stronger reasons exist for
reversing an order refusing to set aside, than one opening, a default. (Howe v. Coldren, 4 Nev.
175; Horton v. Mining Co., 21 Nev. 188, 27 Pac. 376, 1018; State v. Mining Co., 13 Nev.
202; Will v. Water Co., 100 Cal. 344, 34 Pac. 830; Griel v. Vernon, 65 N. C. 76; Hildebrandt
v. Robbecke, 20 Minn. 100; Bigler v. Baker, 58 N. W. 1026, 24 L. R. A. 257; Westphal v.
Clark, 46 Iowa, 264; Peterson v. Railroad Co., 177 Pa. 335, 35 Atl. 621, 34 L. R. A. 593.)
The order is reversed, and the district court will allow the defendant to answer and defend
on such terms as may be just and reasonable.
____________
29 Nev. 169, 169 (1906) Fox v. Myers
[No. 1689.]
SAMUEL FOX, JAMES ENNIS, CARL SCHMIDT, and T. L. ODDIE, Appellants, v. A. D.
MYERS, T. D. MURPHY, HARRY RAMSEY, H. C. HALL, R. C. COOK. W. I.
BEAUCHAMP, JOHN DOE, RICHARD ROE, JAMES STYLES, and MARY STYLES,
Respondents.
1. TrialNonsuitDetermination. In considering a motion for nonsuit at the close of plaintiff's case, every fact
essential to plaintiff's recovery that his evidence tends to prove and all legal presumptions arising from
such evidence must be taken as established.
2. Mines and MineralsLocationDiscovery of Mineral. When a locator of a mining claim finds rock in place
containing minerals in sufficient quantities to justify him in expending his time and money in prospecting
and developing his claim he has made a discovery within Rev. Stats. U. S. 2320 (U. S. Comp. Stats. 1901,
p. 1424), providing for priority of location rights on the discovery of mineral in the public domain, whether
the rock or earth is rich or poor, provided that in a lode claim the lode may have special reference to the
formation and peculiar characteristics of the particular district in which it is found.
3. SameLocation NoticeEvidence of Discovery. Under Comp. Laws, 208, requiring that a mining claim
location notice shall be posted at the point of discovery, but not requiring that the same shall contain a
recital that a discovery has there been made, a notice containing such recital is not prima facie evidence of
a discovery.
4. Same. The posting of a notice under such section at a certain point establishes that at that point the locator
claims a discovery.
29 Nev. 169, 170 (1906) Fox v. Myers
5. SamePresumption of DiscoveryConflicting Claims. Under Comp. Laws, 208, requiring that a notice of
the location of a mining claim be posted at the point of discovery, where conflicting claimants both
posted their notices at the same point, such fact, in the absence of evidence to the contrary, warranted a
presumption that both based their claims of a discovery on the same natural conditions, and that discovery
of mineral, therefore, for the purposes of the case, presumptively existed.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; M. A. Murphy, Judge.
Action by Samuel Fox, and others, against A. D. Meyers, and others. From a judgment in
favor of defendants, plaintiffs appeal. Reversed, with instructions and directions to grant a
new trial.
C. F. Reynolds, for Appellants:
I. It is claimed by the appellants that they have made out a prima facie case, or made such
a showing as that which is received or continues until the contrary is shown. If such as in
judgment of law continues and is sufficient for the purpose, or where the inference of fact can
be legitimately drawn from the evidence, or the presumption reasonably arising therefrom is
legally sufficient to prove the material allegations of the complaint, or where it tends to prove
it, it must be regarded as proved, or where it tends to prove substantially, or there is any
evidence tending to sustain the appellants' case, then, as we understand it, a prima facie case
has been made out, and the court below should have denied the motion for nonsuit. (Hanley
v. Cal. Bridge Co., 127 Cal. 232; Ferris v. Baker, 127 Cal. 520; Pac. Mutual Ins. Co. v.
Fisher, 109 Cal. 566; Zilmer v. Gerichten, 111 Cal. 73; Patchen v. Keeley, 19 Nev. 414;
Nesbitt v. Pioche Con. M. Co., 22 Nev. 262.)
II. The point upon which the motion for a nonsuit was granted and the motion for a new trial
denied, and which is the pivotal point in this case is this: Was a discovery made by the
appellants such a discovery as was contemplated by the act of Congress? A discovery, as we
understand the meaning of that term and its true definition, as interpreted by the
authorities, both judicial and by expert, is that whatever the miner could follow,
expecting to find ore, was his lode or vein; some formation within which he could find ore,
was his vein or lode.
29 Nev. 169, 171 (1906) Fox v. Myers
meaning of that term and its true definition, as interpreted by the authorities, both judicial and
by expert, is that whatever the miner could follow, expecting to find ore, was his lode or vein;
some formation within which he could find ore, was his vein or lode. Various definitions
have been given by the courts that have had large experience in the trial of cases in which the
question of discovery has been adjudicated. The definition so given, as a general rule, applies
to the peculiar formation of ore deposits or veins, the appearance and condition of the country
rock, the particular district where the claim is located. The words lode or vein embrace any
description of deposit which is situated in the general mass of the country, and whenever a
miner finds a valuable deposit, such as he thinks he would be justified in expending his time
and money upon, he has then discovered a lode or vein, no matter what its form may be, or
however it may be situated, or whatever its extent. They are not all of the same character. The
act was to be broad and liberal enough to apply to any kind of lode or vein of quartz or other
mineral-bearing rock, and it was never intended that the value should be determined before
the discovery was made; it is the finding of the mineral in the rock that constitutes the
discovery and warrants the prospector in making the location of the claim. (Eureka M. Co. v.
Richmond M. Co., 4 Sawy. 302; Lindley, Mines and Mining, 286-288; Hayes v. Lavringo, 17
Utah, 185; Brook v. Justice Co., 58 Fed. 106; Migeon v. Montana Central Ry., 77 Fed. 249;
Stevens v. Williams, 1 Mor. Rep. 573; United States v. Iron S. M. Co., 116 U. S. 529;
Reynolds v. Iron S. M. Co., 128 U. S. 673; Lindley, Mines and Mining, sec. 290, note;
Harrington v. Chambers, 1 Pac. 375; Davis v. Weibold, 139 U. S. 521; Tuolumne M. Co. v.
Maier, 134 Cal. 583.)
III. We say that the court would have been justified, under the circumstances and proof in
this case, to have gone into the realm of presumption that a discovery was made, upon the
theory that that which ought to have been and was done was rightly done. The fact of placing
the notice there, and making the declaration that discovery was made, is evidence of a valid
claim, and, by that one act, the appellants were given possession and the right of possession
for ninety days from the date of placing such notice, and that possession of itself is a
presumption that the court below should have indulged in as proof tending to prove that
appellants had made a discovery.
29 Nev. 169, 172 (1906) Fox v. Myers
were given possession and the right of possession for ninety days from the date of placing
such notice, and that possession of itself is a presumption that the court below should have
indulged in as proof tending to prove that appellants had made a discovery. (Hahn v. Kelly,
34 Cal. 391; Tuolumne M. Co. v. Maier, 134 Cal. 583; English v. Johnson, 17 Cal. 107;
Lindley, Mines and Mining, 339; Erhardt v. Boaro, 8 Fed. 692; Coryell v. Cain, 16 Cal. 573.)
There can be no valid location made of a mining claim upon the public lands of the United
States, on a mineral lode or vein, except by a citizen of the United States, or one who has
declared his intention to become such. There is no contention in this case that the appellants
are not citizens of the United States; the proof is that they are citizens, and were such on the
28th day of May, 1903. The office of that notice of location put there by the appellants was to
protect them in their location, while the other acts of location are being performed, such as
sinking the discovery shaft, putting up the corner monuments and the side centers, and having
the claim surveyed. (Donahue v. Meister, 88 Cal. 121; North Noonday v. Orient, 6 Sawy.
299; Gore v. McBrayer, 18 Cal. 582; Duryea v. Boucher, 67 Cal. 141; Weill v. Lucerne Co.,
11 Nev. 200; Lindley, Mines and Mining, 339; Erhardt v. Boaro, 8 Fed. 692; Coryell v. Cain,
16 Cal. 573; Talmadge v. St. John, 129 Cal. 430; Carter v. Bacigalupi, 83 Cal. 187; Poujade
v. Ryan, 21 Nev. 452; Southern Cross v. Europa M. Co., 15 Nev. 385; Phillpots v. Blasdel, 8
Nev. 66.)
IV. Appellants claim that if they put up a stake at the discovery, giving the name of the lode
or vein, date of discovery, and notice of their intention to locate the claim, this is equivalent
to actual possession, otherwise the statute serves no useful purpose. The intention of the
statute must be that the setting up of the discovery stake, with a notice thereon as required, is
equivalent to actual possession for the ninety days within which the discoverer may proceed
to sink the discovery shaft the required depth, have the survey made, and mark the lines and
make the formal location. That the appellants did not do that work as required within the
ninety days cannot prejudice their rights in this case, for the reason that the respondents
prevented them from doing so by their acts and the taking possession of the claim.
29 Nev. 169, 173 (1906) Fox v. Myers
that the respondents prevented them from doing so by their acts and the taking possession of
the claim.
S. E. Vermilyea and George A. Bartlett, for Respondents:
I. Discovery is the source of the miner's title. Discovery in all ages and all countries has
been regarded as conferring rights or claims to reward. Gamboa, who represented the general
thought of his age, on this subject was of the opinion that the discoverer of mines was even
more worthy of reward than the inventor of a useful art. (Halleck's De Fooz on the Law of
Mines, p. xxvi.) While in some of the older countries of Europe, as in France and Belgium,
the nature of the reward to the discoverer was something less than an absolute preference in
the right of enjoyment, yet in Spain and Spanish America there was guaranteed to him an
absolute right of property in the mine which he discovered, if he would take the proper
measures to denounce it and have it duly registered. (Id. p. xxvii.) This wise and liberal
policy which pervaded the Mexican system at the time of the conquest and the acquisition of
California by the United States became the recognized basis of mining rights and privileges
as they were held and enjoyed under the local rules and regulations established by the miners
occupying the public mineral land within the newly acquired territory, and in all subsequent
legislation, whether congressional, state, or territorial, discovery is recognized as the primary
source of title to mining claims. (Erhardt v. Boaro, 113 U. S. 527.) No location of a mining
claim shall be made until the discovery of a vein or lode within the limits of the claim
located. (Rev. Stats. 2320.) A location can only rest upon an actual discovery of a vein or
lode. (King v. A. & S. M. Co., 152 U. S. 222; Tuolumne M. Co. v. Maier, 134 Cal. 583.) Such
discovery must precede the location. (Hauswirth v. Butcher, 1 Pac. 714; Upton v. Larkin, 117
Pac. 727; North Noonday M. Co. v. Orient M. Co., 1 Fed. 522; Jupiter M. Co. v. Bodie Con.
M. Co., 11 Fed. 666; Burke v. McDonald, 33 Pac. 49; McLaughlin v. Thompson, 2 Colo. 135,
29 Pac. 816; 1 Lindley, sec. 335, p. 602, 2d ed.) Or be in advance of rights. (Patchen v.
Keeley, 19 Nev. 404; North Noonday M. Co. v. Orient M. Co., 1 Fed. 522; Beals v. Cone, 27
Colo.
29 Nev. 169, 174 (1906) Fox v. Myers
27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948; Perigo v. Erwin, 85 Fed. 904; Sands v.
Cruikshank, 87 N. W. 589; Mining Co. v. Yarwood, 67 Pac. 749.)
II. The fact of a discovery must be proved by the party alleging it as the inception of his
possessory right. (Sands v. Cruikshank, 87 N. W. 589.) Where the location is made without
discovery, the land remains public domain until after it be proven a discovery. (Tuolumne M.
Co. v. Maier, 134 Cal. 583.) The proof of a posting of a notice, the recording and making a
claim, will not authorize the court to presume a discovery. (Smith v. Newell, 86 Fed. 56.) If
no discovery is made after the acts of location have been performed, the location will date
from the time of discovery. (Beals v. Cone, 83 Am. St. Rep. 92; Tuolumne M. Co. v. Maier,
134 Cal. 583; Erwin v. Perigo, 93 Fed. 608; Jupiter M. Co. v. Bodie M. Co., 11 Fed. 666;
North Noonday M. Co. v. Orient M. Co., 1 Fed. 522, 531.) Priority of discovery gives priority
of right against naked location and possession without discovery. (Crossman v. Pendery, 8
Fed. 692; Beals v. Cone, 62 Pac. 948.)
III. Summing up in brief, counsel will respectfully submit: That absolutely no possession
follows the location of a piece of ground as a mining claim without actual discovery; and the
plaintiffs herein having failed to show any such legal location as will entitle them to
possession, it would not matter if defendants herein, or any other persons, had gone on the
ground a day or a week after this so-called notice of location was posted. No appropriation of
the ground as a mining claim could be made so as to entitle the appropriator to exclusive
possession, without discovery, and, no such discovery being proven, the ground was open to
exploration by any citizen of the United States, or person who might have declared his
intention to become such.
C. F. Reynolds, for Appellants, in reply:
I. The location, or rather the attempted location, made by respondents, on the 26th day of
May, 1903, was made before the expiration of the ninety days allowed by law to the
appellants within which to complete their location by doing the various acts as required by the
act of Congress in order to perfect the claim and their title to it.
29 Nev. 169, 175 (1906) Fox v. Myers
order to perfect the claim and their title to it. The records show, also, that two or three weeks
before the expiration of the time allowed the appellants the respondents made an attempt to
locate the same ground, and, upon their attention being called to the notice, they desisted until
the 26th day of August, 1903, when as Mr. Myers says, Thinking that the notice had run out,
and I was locating government ground. Preliminary to taking up the questions which are and
must be decisive of this case as it now appears and comes before this court, let us for a
moment discuss the office of the notice of location. In making a location under the act of
Congress we claim that the office of the notice of location is to protect the locator or locators
while performing the acts required to be performed by that act in order to perfect their title to
the land claimed. That is, as has been held, it protects the locator or locators in the possession
of the same during the ninety days prescribed by the statutes of Nevada to be a reasonable
time within which to do the work. (See authorities heretofore cited in appellants' opening
brief.)
II. Having thus stated what we understand to be the office of a notice of location, and the
construction placed upon it by all the authorities, we shall contend that the notice of location
placed on the ground by the appellants was some evidence; that there was a proper location
made, and in that location that a discovery was made of a vein or lode. Under the authorities
cited we say that the lower court was wrong in its construction of the statute; that appellants
were required to mark the boundaries with mounds or stakes when they placed the notice of
location upon the ground.
This is an action of ejectment to recover possession of a certain mining claim in Goldfield
Mining District, Esmeralda County. Upon the trial of the cause in the court below, after
plaintiffs had offered their evidence, counsel for respondents interposed a motion for a
nonsuit. The motion was granted, and judgment entered accordingly. Plaintiffs appeal from
the judgment, and from an order denying their motion for a new trial.
29 Nev. 169, 176 (1906) Fox v. Myers
The allegations of plaintiffs' complaint which are material in the consideration of the
questions presented upon this appeal, are substantially as follows: That on the 28th day of
May, 1903, the said plaintiff Carl Schmidt, for himself, and on behalf of the other said
plaintiffs, located, in accordance with the mining laws, a certain mining claim in the
Goldfield Mining District, by erecting thereon a location monument, and posting a location
notice therein, naming and designating said claim as the Ramsey Extension. That on the
26th day of August, 1903, while plaintiffs were in the lawful possession of said claim, the
defendants wrongfully, unlawfully and fraudulently entered into and upon said mining claim,
and by their wrongful, unlawful and fraudulent acts did oust and eject the plaintiffs from the
possession of said mining claim, and ever since said time have continued to so wrongfully,
unlawfully, and fraudulently withhold said claim from the plaintiffs. That on the said 26th of
August, 1903, the said plaintiff Fox, for and on behalf of himself and the other of said
plaintiffs, did go upon said mining claim to complete the location of the same, in accordance
with the requirements of law, but was prevented from so doing by reason of the aforesaid
wrongful acts of defendants. The defendants' answer consists of a specific denial of each of
the allegations of the complaint.
The principal question, presented in this case, and the only one argued by counsel for
respondents, is whether the evidence offered and admitted was sufficient to entitle plaintiffs
to recover under the pleadings. The trial court, in ruling upon the motion for a nonsuit, held
that the plaintiffs had failed to show that they had made a discovery upon which a mining
location could be based. As the question whether there was any evidence upon the part of the
plaintiffs establishing, or tending to establish, a discovery as a basis for the location of the
mining claim called the Ramsey Extension, has been the only material question considered
by counsel upon both sides, the evidence will be reviewed solely with reference to this one
question. Excluding all reference to matters clearly immaterial, the following is substantially
the testimony admitted upon the trial: T. L. Oddie, one of the plaintiffs, testified as follows:
"I know Samuel Fox, James Ennis, and Carl Schmidt.
29 Nev. 169, 177 (1906) Fox v. Myers
T. L. Oddie, one of the plaintiffs, testified as follows: I know Samuel Fox, James Ennis,
and Carl Schmidt. I know the mining district called Grandpa,' now called and known as
Goldfield Mining District.' I know the greater part of land in controversy in this section. * *
* Mr. Fox, Mr. Ennis, Mr. Schmidt, and myself were partners in locating some claims in that
district. Either in May or a short time afterwards, I paid the expenses of Mr. Schmidt to
Grandpa Mining District. * * * Mr. Schmidt brought me some rock to have it assayed. I had
the rock assayed, and Mr. Schmidt came to the office afterwards to learn the assay. * * * Q.
About when was that location made? A. * * * I know it was in the spring of 1903, I think it
was about in May. Q. If the original location notice should say the 28th day of May, would
that be about correct? A. Yes, sir, as far as I know. * * * I know the defendant Beauchamp. I
knew him on or about the 28th day of May, 1903. Some little time after that I had a
conversation with Beauchamp in my office. The question in regard to this suit came up, and
Mr. Beauchamp told me some of the facts connected with the relocation of this ground. He
said, Mr. Myers and Mr. Murphy,' I have forgotten which, spoke to him about the
groundabout relocating it. Mr. Beauchamp told me that Mr. Myers or Mr. Murphy were
going to locate this ground. He was on the ground when they were going to locate it; that was
two weeks before the claim ran out. He said they wanted to locate that ground, and he pointed
out to them that this particular claim had not run out.
The testimony of A. D. Myers, one of the defendants, was taken by deposition. His
testimony was admitted as follows: Q. Where is your place of residence? A. Goldfield,
Nevada. Q. What is your occupation? A. Miner and prospector. Q. Have you located any
mining claims up there? A. Yes, sir. Q. Mr. Myers, have you a notice of location of a claim in
your possession that was upon the claim known as the Idol's Eye' on the 26th day of August,
1903? A. Well, I don't know whether the notice I have was on then or not. (Here the witness
hands a notice to Mr. Reynolds, attorney for plaintiffs.) * * * Q. Did you see any notice on the
claim that day? A. I am quite positive that I did not; it was on the 27th or 2Sth of August.
Q. Did you see the notice that you have presented here on the claim on the 27th or 2Sth?
A. Yes, sir, I did. Q. Do you know W. I. Beauchamp? A. I know a man named Billy
Beauchamp. Q. Did Billy Beauchamp have anything to do with the notice on the Idol's
Eye? A. I do not know.
29 Nev. 169, 178 (1906) Fox v. Myers
claim that day? A. I am quite positive that I did not; it was on the 27th or 28th of August. Q.
Did you see the notice that you have presented here on the claim on the 27th or 28th? A. Yes,
sir, I did. Q. Do you know W. I. Beauchamp? A. I know a man named Billy Beauchamp. Q.
Did Billy Beauchamp have anything to do with the notice on the Idol's Eye? A. I do not
know. I was not there at the time. Q. Were you one of the original locators of the Idol's Eye?
A. That claim was located for me. Q. By whom? A. I think it was Billy Beauchamp. Q. Mr.
Myers, where did you get this notice of location of quartz claim, the one that you have handed
to me? A. I got it out of the Idol's Eye location monument. Q. And what day did you get it? A.
I can't recall the date. It was some time in September or October. Q. Did you take it from the
claim called the Idol's Eye yourself? A. Yes, sir. * * * Q. * * * Do you know when the notice
of location was placed on the Idol's Eye? A. I know when I found it, and that is all I know. Q.
Do you know who placed that notice of location upon the Idol's Eye? A. I presume
Beauchamp did; he was the locator; he located it for me. Q. That is the W. I. Beauchamp that
we have referred to? A. I think it is. * * * Knowing that Billy Beauchamp was going to locate
a certain piece of ground covered by this location [petitioner's Exhibit A] or a portion thereof,
I asked him to locate me in on it. On the 27th or 28th day of August, 1903, I came by where
he was working. I saw two monuments. I went to one of them. I found that he, Billy
Beauchamp, or whatever you call him, had located for me this said Idol's Eye mining claim.
Samuel Fox, one of the plaintiffs, testified as follows: I know James Ennis, Carl Schmidt,
and T. L. Oddie. I know the mining district called Grandpa Mining District.' * * * I located
ground in the Grandpa District about the 28th day of May, 1903. The name of the claim that I
located was the Ramsey Extension,' which was located in Goldfield Mining District. * * *
On or about the 25th day of August I left Tonopah to go and finish some work that was
started on the claim. We camped on the other side of Klondike Wells. On the morning of the
26th we hitched up and started out for what was called the 'Grandpa District,' we got out
there on the ground, and the first man I met was Mr.
29 Nev. 169, 179 (1906) Fox v. Myers
for what was called the Grandpa District,' we got out there on the ground, and the first man I
met was Mr. Beauchamp; he was coming from the mountain with a load of wood. When the
location was made on the 28th day of May, about that time we made an agreement with
Schmidt that he, Schmidt, should go out and complete the work on the ground. * * * He went
out the second time. After his return about the 6th or 7th of June, * * * I went out to Grandpa
District. My purpose in going out was to complete the work. When I got there I looked for a
notice with our names on so I could tell the ground. I looked all over the country. Q. Did you
find any location notice with your name upon it? A. I did not, sir. * * * From information that
I received I made an examination of the mining claim represented in the complaint, and made
inquiries. I looked all over the ground to see if I could find any location notice of mine, and I
could not. I met Mr. Beauchamp in that vicinity. I said: Billy, would you show me where my
ground is?' He pointed me an opposite direction from where my ground was. I went in that
vicinity and looked all around, and could not find it. Later on in the day, before I left there, I
went to him again and said: Billy, will you show me where my ground is?' He answered, Up
there,' and pointed in a different course from where my ground was. * * * Q. Had you any
information as to what vicinity your claim lay? A. Yes, sir, I was informed it was adjoining
the Ramsey ground. Q. Now then, did you find the Ramsey ground? A. Yes, sir, I think I did,
the Ramsey ground. Q. Did you look faithfully all around the Ramsey ground to see if you
could find the location of the Ramsey Extension? A. I looked all around, but could not find
anything. * * * I know now where the notice of location of the Ramsey Extension mining
claim was placed. Q. Was there any outcropping in or near that monument or location notice?
A. There was. Q. How far from it and in what direction? A. It runs in about a northeasterly
direction, maybe forty or fifty feet from the monument. Q. Do you know anything about that
cropping as to what it contained, if it contained anything? A. I have seen an assay from it.
29 Nev. 169, 180 (1906) Fox v. Myers
seen an assay from it. * * * Q. Do you know the rock that you had assayed came from this
location? A. The rock was sent from that location. When I speak of the ground I refer to the
ground in controversy in this action. I met Mr. Beauchamp on the ground about thirty or forty
feet from the location monument. One of the Beauchamps was digging a hole, and the other
was hauling wood. At that time there was a notice of location by defendants of the Idol's Eye;
that was the 26th of August.
James Ennis, one of the plaintiffs, testified as follows: On or about the 28th day of May,
1903, Mr. Oddie, Mr. Fox, and myself entered into an agreement with Mr. Schmidt to locate
and prospect for mining claims. * * * He (Schmidt) returned the following Saturday; I think it
was the 30th. He returned and brought with him some samples. I saw the samples. * * * The
following Sunday we took the samples to Mr. Oddie's office, and asked Mr. Oddie to have
them assayed, and the rock showed values. When it showed values, Mr. Fox, Mr. Oddie, and
I decided to send Mr. Schmidt there to do the location work, and if I remember right, on the
3d day of June he left Tonopah for Grandpa to do the location work on this claim. We
furnished him with a team and provisions. Q. Do you know that he did any work? A. All I
know is what he told me after he returned. After he returned we decided to send him there
again to complete the work. By that I mean put the hole down the proper depth according to
law; he had only dug a few feet. He did not go right back again. Q. Did you hear anything that
he did or did you know of anything? A. He dug a hole out there. I learned that he had
discovered a vein, and we decided to complete the workdecided to send Mr. Schmidt out
there again to complete the work. I left Tonopah about the 7th day of August, 1903. The day I
was leaving I saw Mr. Fox. I told him I was out of work, and wanted him to go out and do the
work, and whatever my share was I would contribute. From what Mr. Schmidt told me I
know that the notice of location which was offered in evidence was taken from the Ramsey
Extension.
Harry Stimler testified as follows: In 1903 I resided in Goldfield.
29 Nev. 169, 181 (1906) Fox v. Myers
Goldfield. I know the Grandpa District, and knew it in 1903. I know the mining claim located
there under the name of T. L. Oddie, James Ennis, Samuel Fox, and Carl Schmidt. Q. Do you
know a claim located on or about the 26th day of August, 1903, in the Grandpa Mining
District, known as the Idol's Eye Claim'? A. I know where the location of the Idol's Eye
claim is. The Idol's Eye takes in a part of the Ramsey Extension; the claim located by Oddie,
Ennis, Fox, and Schmidt. I don't know whether it takes it all in or not. Q. Upon that location
did you see any indications of an outcropping, I mean the Ramsey Extension? A. Yes, sir, I
saw the outcropping. Q. Mr. Stimler, did you, on or about the 20th day of August, see any one
working upon the Ramsey Extension as you know it now? A. Yes, sir. The Beauchamp
brothers, they continued working there several days. I had a conversation with Beauchamp on
or about the 26th day of August, 1903, with reference to the Ramsey Extension. He said Foxy
Grandpa had been out there before, looking for his ground, down where they were working;
asked him if he knew where it was, and he said No'; told him he thought it was over near
Columbia somewhere.' I don't remember what all was said. I remember that he said they had
fooled him.'
John W. Cuddeback, testified as follows: I was residing in Goldfield on or about the 28th
day of May, 1903, and resided from that time up until the 26th of August, 1903. My business
is that of mining and teaming. I have been mining about twenty years. Q. Do you know the
general appearance of the land in and about Goldfield, as to its being mineral, or otherwise?
A. I do. Q. Do you know the land claimed and known as the Idol's Eye Mining Claim'? A.
Yes, sir. Q. Do you know the land that was claimed and is the Ramsey Extension mining
claim? A. Yes, sir. Q. On the Ramsey Extension is there what is known and called an
outcropping'? A. There is.
The following is a copy of the location notice referred to in the deposition of A. D. Myers,
which was admitted in evidence, marked Plaintiffs' Exhibit A:
Notice of Location of Quartz Claim. Notice is hereby given to all to whom it may
concern: That James Ennis, S.
29 Nev. 169, 182 (1906) Fox v. Myers
given to all to whom it may concern: That James Ennis, S. Fox, L. F. Oddie, C. Schmidt,
citizens of the United States, over the age of 21 years, having discovered a vein or lode of
quartz, or rock in place, bearing........... within the limits of the claim hereby located, have this
day under and in accordance with the Revised Statutes and other laws of the United States,
located 1,500 linear feet of this vein or lode, with surface ground 600 feet in width, situated
in Grandpa Mining District, County of Esmeralda, State of Nevada, and known as the
Ramsey Ext. quartz mining claim, and extending ......... feet to ...... and ...... feet to ........ from
this notice ....... at the discovery or prospect shaft, the exterior boundary of this claim being
distinctly marked by reference to some object or permanent monuments, and more
particularly described as follows, to wit: Commencing from this location monument and
running 300 feet southerly and 1,200 feet northerly direction. And we intend to hold and work
said claim as provided by the local customs and rules of miners and the mining statutes of the
United States. Dated on the ground this 28th day of May, A. D. 1903. Attest: James Ennis.
In considering the question whether the evidence produced by the plaintiffs was sufficient
to establish the fact of a discovery by them upon the Ramsey Extension claim, it must be
understood that the evidence is to be tested by the rules governing in the case of rival
claimants to the same mining ground, taken in connection with the liberality with which
evidence is construed in favor of the plaintiffs on a motion for a nonsuit. Upon the latter
proposition, this court in the case of Patchen v. Keeley, 19 Nev. 409, 14 Pac. 347, had
occasion to say: In considering the 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.
We also quote with approval the following language of the Supreme Court of California in
the case of Hanly v. California Bridge Co., 127 Cal. 237, 59 Pac. 577, 47 L. R. A. 597: The
motion for a nonsuit admits the truth of the plaintiff's evidence, and every inference of fact
that can be legitimately drawn therefrom, and upon such motion the evidence should be
most strongly interpreted against the defendants.
29 Nev. 169, 183 (1906) Fox v. Myers
every inference of fact that can be legitimately drawn therefrom, and upon such motion the
evidence should be most strongly interpreted against the defendants. This rule must be
applied to all the evidence submitted by plaintiff.
In Migeon v. Montana Cent. Ry. Co., 77 Fed. 254, 23 C. C. A. 161, the United States
Circuit Court of Appeals, in an opinion written by Judge Hawley, points out in the following
manner the distinction that exists in various classes of cases, upon the question of the proof
that will be required to establish a discovery: There are four classes of cases where the
courts have been called upon to determine what constitutes a lode or vein within the intent of
different sections of the Revised Statutes: (1) Between miners who have located claims on the
same lode, under the provisions of section 2320 [U. S. Comp. Stats. 1901, p. 1424]. (2)
Between placer and lode claimants under the provisions of section 2333 [U. S. Comp. Stats.
1901, p. 1433]. (3) Between mineral claimants and parties holding townsite patents to the
same ground. (4) Between mineral and agricultural claimants of the same land. The mining
laws of the United States were drafted for the purpose of protecting the bona fide locators of
mining ground, and at the same time to make necessary provision as to the rights of
agriculturists and claimants of townsite lands. The object of each section, and of the whole
policy of the entire statute, should not be overlooked. The particular character of each case
necessarily determines the rights of the respective parties, and must be kept constantly in
view, in order to enable the court to arrive at a correct conclusion. What is said in one
character of cases may or may not be applicable in the other. Whatever variance, if any, may
be found in the views expressed in the different decisions touching these questions arises
from the difference in the character of the cases, and the advanced knowledge which
experience in the trial of the different kinds of cases brings to the court. * * *
The fact is that there is a substantial difference in the object and policy of the law
between the cases where the determination of the question as to what constitutes the
discovery of a vein or lode between different claimants of the same lode, under section
2320 {U. S. Comp.
29 Nev. 169, 184 (1906) Fox v. Myers
the same lode, under section 2320 (U. S. Comp. Stats. 1901, p. 1424), on the one hand, and a
lode known to exist within the limits of a placer claim at the time application is made for a
patent therefor, under section 2333 (U. S. Comp. Stats. 1901, p. 1433), on the other. * * *
The question as to what constitutes a discovery of a vein or lode under the provisions of
section 2320 of the Revised Statutes (U. S. Comp. Stats. 1901, p. 1424) has been decided by
many courts. All the authorities cited by appellants are referred to in Book v. Mining Co. (C.
C.), 58 Fed. 106, 121. The liberal rules therein announced are substantially to the effect that
when a locator of a mining claim finds rock in place containing mineral in sufficient quantity
to justify him in expending his time and money in prospecting and developing the claim, he
has made a discovery within the meaning of the statute, whether the rock or earth is rich or
poor, whether it assays high or low, with this qualification: that the definition of a lode must
always have special reference to the formation and peculiar characteristics of the particular
district in which the lode or vein is found. It was never intended that in such a case the court
should weigh scales to determine the value of the mineral found as between a prior and
subsequent locator of a mining claim on the same lode.
The same court in Shoshone M. Co. v. Rutter, 87 Fed. 801, 808, 31 C. C. A. 223, again
said: The purpose of the statute, in requiring that no location of a mining claim shall be
made until the discovery of a vein or lode within the limits of the claim located,' was to
prevent frauds upon the government by persons attempting to acquire patents to land not
mineral in its character. But as was said in Bonner v. Meikle, (C.C.), 82 Fed. 697: It was
never intended that the court should weigh scales to determine the value of mineral found, as
between a prior and subsequent locator of a mining claim on the same lode.' The location of
the Kirby was made in 1886. The discovery of mineral then made was sufficient to induce the
locators and their grantees to perform the amount of annual labor thereon as required by the
mining lawsto expend their time and money in prosecuting the work thereonin the belief
and expectation of finding ore of profitable value therein."
29 Nev. 169, 185 (1906) Fox v. Myers
profitable value therein. The following authorities are to the same effect: (Book v. Justice
Mining Co. (C. C.), 58 Fed. 120; McShane v. Kenkle, 18 Mont. 208, 44 Pac. 979, 33 L. R. A.
851, 56 Am. St. Rep. 579; Muldrick v. Brown (Or.), 61 Pac. 428; Iron S. M. Co. v.
Cheesman, 116 U. S. 529, 6 Sup. Ct. 481, 29 L. Ed. 712; Harrington v. Chambers (Utah), 1
Pac. 375; Ambergris M. Co. v. Day (Idaho), 85 Pac. 109; 1 Lindley on Mines, 2d ed. 336.)
The evidence in this case shows that, at or near the location monument of the Ramsey
Extension claim, there was an outcropping, and we think it may be inferred from the evidence
that this outcropping carried values. We think it also may be inferred from the evidence that
the plaintiffs intended to base their claim of a discovery upon this outcropping when they
erected the monument and posted their notice of location of the Ramsey Extension claim
upon or near it. It is not necessary to determine whether this state of facts alone would be
sufficient to justify the trial court in denying the motion for a nonsuit; but, taken in
connection with other facts which are shown, or which may be inferred from the evidence, we
think the showing was sufficient to require that the motion be denied. The contention of
counsel for appellants has not been questioned that the location monument of the Idol's Eye
claim and the location monument of the Ramsey Extension claim were one and the same.
This fact may be inferred from the evidence, and for the purposes of the motion it should be
considered as an established fact. Our statute (Comp. Laws, 208) requires that the notice of
location be posted at the point of discovery. Therefore, when a locator erects a location
monument and puts his location notice thereon, he, in effect, declares that at that point he has
made a discovery. This is so in order that another prospector going upon the same ground
may not only see that some one else claims to have initiated a location, but upon what
discovery, or alleged discovery, if any, such claim is based. Many years prior to the adoption
of our statute this court had occasion to refer to the importance of having the location notice
posted at an appropriate point upon or near the ledge.
29 Nev. 169, 186 (1906) Fox v. Myers
In the case of Phillpotts v. Blasdel, 8 Nev. 75, the court said: In order to hold a ledge, it is
not necessary that the notice should be placed on the ore or any part of the vein or lode. It is
sufficient, as the jury was instructed, if the notice is placed in such reasonable proximity and
relation to the ledge, as in connection with the work done under it to give notice to all comers
what ledge is intended.
In the case of Gleeson v. Mining Co., 13 Nev. 465, the court said: A notice is generally,
and for safety ought always to be, posted immediately upon the discovery of the vein, before
there is any time to survey the ground and ascertain the bearings and distances of natural
objects or permanent monuments in the neighborhood; and, besides, the claim referred to by
the notice is always sufficiently identified by the fact that it is posted on, or in the immediate
proximity to, the croppings. A notice, claiming a location on this vein' has only one
meaning.
It will be seen that our statute has gone farther and makes it the duty of the locator, after he
has made a discovery, to put his location notice at such point of discovery. Proof of posting a
location notice at a certain point, containing a recital therein that a discovery had there been
made, as in the case of the Ramsey Extension notice, would not be evidence prima facie of a
discovery, as contended for by counsel for appellant, for the reason, if for none other, that the
statute does not require the making of such a declaration in the notice. (1 Lindley on Mines,
2d ed. 392; 2 Jones on Evidence, 521.) Proof, however, that a notice was posted at a certain
point establishes that at that point the locator claims a discovery. When it was shown that the
Idol's Eye location notice was placed at the same point as that of the Ramsey Extension, it put
the defendants in this action also in the position of claiming a discovery at the same point that
the plaintiffs did. Both sides claiming a discovery at the same point would warrant the
presumption, in the absence of a showing to the contrary, that both based their claim of a
discovery upon the same natural conditions, and, where such a showing exists, the court is
justified, at least for the purpose of the motion, in presuming the existence of a discovery,
because of the fact that there is, in effect, an admission by both parties that such
discovery exists.
29 Nev. 169, 187 (1906) Fox v. Myers
suming the existence of a discovery, because of the fact that there is, in effect, an admission
by both parties that such discovery exists. If it were shown that a person had posted a location
notice where there were no indications whatever of a lode or vein, and that subsequently
another person, as a result of sinking a shaft at that point, or by some other development
work, had discovered a vein not indicated upon the surface of the ground, it could hardly be
said that such second party, by reason of the fact that he posted his location notice at the same
point as the first claimant, thereby admitted that such prior claimant had also there made a
discovery. But such is not the state of facts disclosed by the evidence in this case. Indulging
in all legal presumptions, and construing the evidence, under the rule heretofore quoted, most
favorably in favor of the appellants, we are compelled to say that the evidence warrants the
inference, at least, that both parties to this action are claiming the right to hold the ground in
controversy under the same claim of discovery. Under such a state of facts the evidence upon
the question of discovery was sufficient upon which to have based a denial of the motion for
a nonsuit.
For the reasons given, the judgment and order are reversed, with directions to the lower
court to grant a new trial.
____________
29 Nev. 191, 191 (1906)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1906.
____________
29 Nev. 191, 191 (1906) State v. Justice Court
[No. 1696.]
THE STATE OF NEVADA, ex rel. JUAN LAUNIZA, Relator, v. THE JUSTICE COURT
OF CARSON TOWNSHIP, Respondent.
1. CertiorariReturnRecordConclusiveness. The affidavit of the attorney of defendant filed in the supreme
court on certiorari, to review the action of a justice of the peace in refusing to transfer the case to the
district court on the ground that title to real property was involved, which avers that defendant by oral
answer in the justice court entered a general denial to the complaint, claiming damages for a trespass on
lands alleged to be owned and possessed by plaintiff, does not show that there was oral answer where the
record as certified by the justice fails to show that there was any answer.
2. Justices of the PeaceJurisdictionTitle to Real Estate. In an action in the justice court for trespass on
plaintiff's land defendant testified that, so far as he knew, the title to the land was in plaintiff. There was a
failure to prove that plaintiff had the patent right to a particular eighty acres of land, but it was not shown
that she did not have a prior possession thereto, nor did it appear whether the trespass was committed on all
the lands claimed by plaintiff, or only on lands other than the eighty acres. Held, not to show that the right
to real property was necessarily involved within art. VI, sec. 8 of the Constitution, providing that justice
courts shall not have jurisdiction in cases where title to real estate is involved, and Comp. Laws, 3634,
making it the duty of a justice in such case to certify the case to the district court.
3. Jurisdiction. Where plaintiff suing in the justice court for trespass on land gave no evidence of his title by
patent, deed, prior possession, or otherwise, to any part of the land, the justice had jurisdiction to enter
judgment for defendant for the costs, title to land not being involved.
4. Title. Where, in trespass on land, action brought in justice court, and plaintiff did not prove ownership to the
land, and there was no evidence that the same belonged to a third person, and defendant made no claim to
the land, title to land was not necessarily involved.
5. EvidenceProof of TitleOpinion. The testimony of the attorney for defendant who was sued in the justice
court that, from an examination of the documentary evidence, it was apparent that defendant did not have
title to all the lands, was not testimony of a fact, but the mere opinion of the attorney on a question of law,
for the court's consideration and determination.
On Rehearing.
6. Justices of the PeaceReviewCertiorariRehearingAmendment of Record. Under Supreme Court Rule
No. 8, providing that objections to the record affecting appellant's rights must be taken at the first term
after the transcript is filed, a party seeking to review by certiorari a justice's judgment in an action for
trespass on the ground that title to real estate was involved cannot, on rehearing, after the dismissal of the
writ, introduce an amended record showing that a general denial of the allegations of the complaint by oral
answer was entered in the justice's court.
7. JurisdictionTitle to Real Estate. A justice of the peace cannot certify a case to the district court on the
ground that title to real estate is involved, unless it appears by the verified answer or on plaintiff's own
showing that title is involved.
Original proceeding. Certiorari by the State, on the relation of Juan Launiza, against the
Justice Court of Carson Township, Ormsby County, State of Nevada. Writ dismissed.
Petition for rehearing. Overruled.
Samuel Platt, for Relator:
I. The docket of the justice of the peace in the case at issue shows that plaintiff filed his
verified complaint, and that the defendant interposed an oral answer denying each and every
allegation of the complaint. The fact that no written answer under oath was filed as a pleading
by the defendant eliminates one question of jurisdiction from the consideration of this
petition. If the answer of the defendant had been in writing and verified, that fact of itself
would have raised the question of title to real property, and upon the pleadings themselves the
justice would have been compelled under the law to have certified the case to the district
court for trial. In this case, however, the defendant's answer not having been in writing and
verified, the question as to whether the title to real property was involved or not could
only be determined upon the trial of the case.
not having been in writing and verified, the question as to whether the title to real property
was involved or not could only be determined upon the trial of the case. It is respectfully
submitted that if, upon the trial of the case, by the plaintiff's own showing, or by the
evidence itself, title to real property became involved, it then and there became the duty of
the justice of the peace to certify the case to the district court for trial. By the introduction of
certain documentary evidence, the plaintiff by his own showing attempted to show title to the
property over which the sheep are alleged to have trespassed. In order for the plaintiff to
sustain his action it was necessary that he show title or possession, or right of possession, in
and to the property specifically described in his complaint. The fact that his title was
controverted by the answer of defendant placed the burden of proof upon the plaintiff to
establish that title. He could only establish it by and through the means of evidence upon the
trial of the case, and, when he attempted to do so, he could do nothing but impress the justice
with the fact that the title to the property was a question necessarily involved in determining
as to whether plaintiff had any ground for action or not. The record will also show that the
defendant controverted by oral evidence plaintiff's title in said property, or at least his title to
a portion of said property. By means of this evidence defendant directly involved the question
of title, and the justice should have granted defendant's motion and certified the case to the
district court.
II. The statute provides that no issue presenting a question involving the title to real
property shall be tried by the justice. It seems clear that the issues here not only involve the
question of damages for trespass, but are directly connected with the issue of title to or right
of possession of the lands described in plaintiff's complaint. If plaintiff has no title or
possession, certainly he has no cause of action for trespass. The title or possession is the basis
of his action, and, if this title or possession is controverted, an issue of title is involved which
prohibits the justice from proceeding with the trial of the case. Under the mandatory
provisions of section 838 of the code of civil procedure a justice court has no jurisdiction to
receive evidence upon, or try any issue involving the title or possession of real estate; and
when any evidence is offered upon such an issue it is made the imperative duty of the
justice to suspend all further proceedings, and to certify the proceedings, or a transcript
of oral proceedings, from his docket to the clerk of the superior court."
has no jurisdiction to receive evidence upon, or try any issue involving the title or possession
of real estate; and when any evidence is offered upon such an issue it is made the imperative
duty of the justice to suspend all further proceedings, and to certify the proceedings, or a
transcript of oral proceedings, from his docket to the clerk of the superior court. (King v.
Kutner-Goldstein Co., 135 Cal. 65.) If a plaintiff, in order to sustain his action, is obliged to
rely on and prove a possessory title, even to premises described in his declaration, a justice of
the peace has no jurisdiction of the suit. (Haven v. Needham, 20 Vt. 183.) In an action in a
justice's court where defendant's statements show that the title to real estate is involved, it is
the duty of the justice to certify the case to the circuit court. (State ex rel. Houston v.
Ganchorn, 56 Mo. App. 519, 52 Mo. App. 220; Sweek v. Galbreath, 11 Or. 516.) Whenever
in a suit commenced before a justice of the peace, it appears from the pleadings or evidence
or argument of the parties that the title to real estate will come in question, the suit must be
dismissed for want of jurisdiction. (Parker v. Bussell, 3 Blackf. 411; Smith v. Harris, 3
Blackf. 416.) The question at issue upon the petition herein has never been squarely decided
by the supreme court of this state. This court has held that in a case of malicious mischief no
question of title is or could be involved. The court based its conclusions in that case upon the
mandatory provision of the statute and of the constitution prescribing jurisdiction of justices
of the peace over criminal cases, and therefore refused to oust the jurisdiction of the justice of
the peace on account of this mandatory provision of the statute. This court has declared,
however, that where the trial of a case in a justice court involves a question of possession of
real estate, the case should be transferred to the district court. (Tull v. Anderson, 15 Nev.
426.)
Alfred Chartz, for Respondent:
I. The complaint, per se, raises no question of title, and tenders no issue of right of
possession to land. If it did, being exactly like the complaint in the case of Dangberg v.
Ruhenstroth, 26 Nev. 455, the latter case would have been decided differently.
decided differently. Comp. Laws, 780, under which the action was brought, says: It shall be
unlawful for any person or persons to herd or graze any live stock upon the lands of another,
etc. The words lands of another make it incumbent upon the plaintiff to aver title, or else
his complaint will fail to state facts sufficient to constitute a cause of action. Having to aver
his title, he must prove it, or else his evidence will be insufficient to support the judgment.
But these averments and proofs bring the title into question only incidentally, and do not
bring the right of possession into question between the parties to the action. (38 Cal. 683; 66
Cal. 640.)
II. Does the answer or the proofs tender an issue between the parties, plaintiff and
defendant, as to the title of the lands described in the complaint, or the right of possession
thereof? The answer is oral, not sworn to, and is general, denying each and every allegation of
the complaint. It is sufficient in nearly all cases arising in the justice courts, but is it sufficient
to raise the question of title and right of possession of lands? Comp. Laws, 3634, provides
that the showing must be made under oath. So the answer in the case at bar is not better than a
demurrer. The defendant in the action in the justice court did not file any verified answer, as
required by the statute cited. His answer was a general denial of the allegations of the
complaint. It is true, he moved to transfer the action to the superior court, on the ground that
the title to real property was involved. This did not oust the justice court of its jurisdiction.
The justice was only called on to transfer the cause when a verified answer was filed, as
required by the statute. The justice did not err, therefore, in proceeding with the cause.
(Schroeder v. Wittram, 66 Cal. 641.)
III. Did the testimony of the attorney for defendant raise any issue of title or right of
possession to real property? Quoting from his affidavit: Defendant's counsel has sworn and
testified that, from an examination of the documentary evidence, it was evident that plaintiff
did not have title to all of the lands involved, and that, upon the best of his information,
knowledge and belief, the testimony introduced was not sufficient to establish title in and to
the lands as alleged in plaintiff's complaint."
plaintiff's complaint. Again, quoting from Schroeder v. Wittram, 66 Cal. 639: In his
defense, the defendant gave no direct evidence of title. The burden of his defense was, that in
his opinion the title was good. But the opinions of witnesses as to the title of real property is
not evidence of title.
IV. Taking the entire scope of the case we find:
(1) That it is absolutely necessary to plead title, and to prove it, and that such plea and proof
is only incidental to the right of recovery of damages for trespass of cattle, and in no wise
involves the title or right of possession of real property.
(2) That the answer involved no issue of title or right to possession of real property, and
that the opinion of witnesses as to the title to the real property is not evidence of title.
(3) That there is no proper or necessary party plaintiff or defendant in the proceeding.
(4) That the affidavit upon which the writ is based is insufficient, and that it is not made by
the party beneficially interested, and defendant has not prosecuted his proper remedy.
Samuel Platt, for Relator, on rehearing:
I. The question of title is raised in an action of trespass before a justice of the peace if the
plaintiff offers deeds in evidence of his right of possession, or claims such right under a third
person, whose ownership he proposes to show. (Gay v. Hults, 55 Mich. 327; Jakeway v.
Barrett, 38 Vt. 316; Ostrom v. Potter, 71 Mich. 44; Orris v. Kempton, 105 Mich. 229; Lane
v. Young, 66 Hun, 563.) In the case at bar, plaintiff's possession was not an actually alleged
possession, but merely constructive, based upon an alleged title to the lands in question. It
was necessary to establish her title in order to prove possession, and the respondent had no
jurisdiction under the constitution and laws of the State of Nevada to hear testimony tending
to establish said title. (Am. Digest, vol. 31, col. 935, sec. 85, and authorities therein cited;
Hillman v. Stanger, 49 N. J. Law, 191.) In trespass cases in justice courts, if the defendant
offers not to prove title in himself, but to prove lack of title in plaintiff, the action under
section 25 of the small-cause act should be dismissed.
action under section 25 of the small-cause act should be dismissed. (Edgar v. Anness, 47 N. J.
Law, 465.)
Martha H. Blackwell brought suit in the Justice Court of Carson Township against Juan
Launiza claiming damages for the herding of sheep on lands alleged to be owned and
possessed by her and her assignors.
The affidavit of relator's attorney filed in this court states that by oral answer defendant
entered a general denial to the allegations of the complaint, but the record as certified by the
justice of the peace fails to show that there was any answer, either oral or written, verified or
unverified, questioning plaintiff's title to the lands. She recovered a verdict and judgment for
$75 and for costs and attorney's fees. Patents, state contracts, and deeds introduced in
evidence by her on the trial indicated that she was the owner of several hundred acres of the
land, but there was a deed to her from Clara Sweeney, given three years previously, for eighty
acres, for which the latter was not shown to have had any patent, contract, right, or title. It
appears from the record that defendant in that action, who is relator here, testified so far as he
knew the title to the lands was in the plaintiff and that he was not aware of any omission in
her title. Defendant's counsel was sworn as a witness, and stated from an examination of the
documentary evidence it was apparent that plaintiff did not have title to all the lands.
Thereupon, the attorney for the defendant renewed a motion to certify the case to the district
court for trial upon the ground that the title to real property was necessarily involved in the
determination of the action, and that the justice court had no jurisdiction under section 3634
of the Compiled Laws.
The proceeding here is brought to review the action of the justice court in refusing to
certify the case to the district court for trial and the question for determination is whether the
title to real property was necessarily involved so as to deprive the justice court of jurisdiction.
Section 8 of article VI of the Constitution of Nevada provides that justice courts shall not
have jurisdiction in cases wherein the title to real estate or mining claims, or questions of
boundaries to lands are involved," and section 3634 of the Compiled Laws: "The parties
shall not be at liberty to give evidence upon any question which involves the title to, or
the right of possession to, or the possession of, real property or mining claims, or upon
any question involving boundaries to land, or the legality of any tax, impost, assessment,
toll, or municipal fine, nor shall any issue presenting such question be tried by the justice;
and if it appear from the plaintiff's own showing on the trial, or from the answer of the
defendant, verified by his oath, that the determination of the action will necessarily
involve either of such questions, the justice shall suspend all further proceedings in the
action, and certify the pleadings, or, if the pleadings be oral, a transcript of the same,
from his docket to the district court for the county; and from the time of filing such
pleadings or transcript with the clerk of the district court, such district court shall have
over the action the same jurisdiction as if it were originally commenced therein."
the title to real estate or mining claims, or questions of boundaries to lands are involved, and
section 3634 of the Compiled Laws: The parties shall not be at liberty to give evidence upon
any question which involves the title to, or the right of possession to, or the possession of,
real property or mining claims, or upon any question involving boundaries to land, or the
legality of any tax, impost, assessment, toll, or municipal fine, nor shall any issue presenting
such question be tried by the justice; and if it appear from the plaintiff's own showing on the
trial, or from the answer of the defendant, verified by his oath, that the determination of the
action will necessarily involve either of such questions, the justice shall suspend all further
proceedings in the action, and certify the pleadings, or, if the pleadings be oral, a transcript of
the same, from his docket to the district court for the county; and from the time of filing such
pleadings or transcript with the clerk of the district court, such district court shall have over
the action the same jurisdiction as if it were originally commenced therein. It is not
pretended that a verified answer was filed and the affidavit is insufficient to show that there
was an oral answer questioning plaintiff's right to the lands, for the proceedings in the lower
court are required to be established by the record as certified. (Alexander v. Archer, 21 Nev.
32, 24 Pac. 373.)
We need not determine whether, in the absence of an issue raised by answer, evidence
could be introduced on the trial to show a conflict in regard to the title. It is sufficient for the
purposes of the case to say that if it could be so introduced and considered, the evidence
submitted did not show that the right to real property was necessarily involved. There was a
failure to prove that the plaintiff and her grantor had the patent right to this particular eighty
acres, but it is not shown that she did not have a prior possession which would have raised
sufficient presumption of her ownership in the absence of patents and deeds. Nor does it
appear whether the trespass was committed on all the lands claimed by the plaintiff, or only
on lands other than this eighty acres, which would not necessarily involve the title to the
latter. If evidence may be considered for any purpose when no issue is properly shown, we
may distinguish between absence of proof and conflict in evidence, and conclude that the
failure of the plaintiff to prove ownership by patent to part or all of the land did not make
it necessary to have the case certified to the district court.
is properly shown, we may distinguish between absence of proof and conflict in evidence, and
conclude that the failure of the plaintiff to prove ownership by patent to part or all of the land
did not make it necessary to have the case certified to the district court. If she had failed to
introduce evidence of her right by patent, deed, prior possession, or otherwise, to any part of
the land, the justice court would still have had jurisdiction to enter judgment in favor of the
defendant for costs. If she did not prove ownership by prior possession when she had not
connected herself with the patent right, then there was no proof that the land belonged to her,
and, there being none that the land belonged to any one else, such failure of proof did not
raise any conflict in the evidence, and did not show that the title was necessarily involved
when the defendant, as a witness, made no claim to the land nor contention that it belonged to
any third person, and his conduct and testimony were more nearly tantamount to an admission
that plaintiff was the owner. The defendant's attorney did not testify to any new facts, but in
regard to his opinion as to whether the evidence required the certification of the case, a matter
of law for the court. Oregon Short Line R. Co. v. District Court (Utah), 85 Pac. 362, 363, and
cases there cited, are instructive regarding the proposition here involved.
It is ordered that the writ be dismissed, and that the papers certified from the justice court
be returned to that tribunal.
Fitzgerald, C. J.: I concur.
Norcross, J., concurring:
I concur in the order dismissing the writ. If the transcript of the justice's docket had shown
that an oral answer had been filed denying plaintiff's allegations of ownership or right of
possession, then, in my judgment, it would have appeared that an issue was raised requiring
proof upon the part of plaintiff to establish her allegations of title or right of possession, and
such proof the justice, under the provisions of the statute, would not have jurisdiction to hear.
His duty then would have been to have certified the case to the district court. (King v.
Kutner-Goldstein Co., 135 Cal.
65, 67 Pac. 10.) While the justice did hear testimony upon the question of title, I think it was
improper for him to have done so, and such action might have been sufficient to have
supported a conclusion that the title or right of possession of real property was involved in the
action, did not the testimony of the defendant, practically conceding plaintiff's title, negative
such a conclusion.
On Rehearing.
Upon the rehearing the attorney for the relator asked to introduce an amended record
showing that a general denial of the allegations of the complaint by oral answer was entered
in the justice court. We think he ought not to have waited until after the argument and the
rendition of our decision, and that the objection of respondent that the offer comes too late is
well taken under the following rule 8: Exceptions or objections to the transcript, statement,
the undertaking on appeal, notice of appeal, or to its service or proof of service, or any
technical exception or objection to the record affecting the right of the appellant to be heard
on the points of error assigned, which might be cured on suggestion of diminution of the
record, must be taken at the first term after the transcript is filed, and must be noted in the
written or the printed points of the respondent, and filed at least one day before the argument,
or they will not be regarded.
When a party assigns errors, it is incumbent on him to see that the record is in the
condition in which he is entitled to have it. If he proceed upon an imperfect transcript, and the
judgment of the court is against him, he cannot as a matter of right claim a certiorari to the
inferior tribunal. Suggestions of imperfections in records must be seasonably made and in
conformity to the rules of practice, or they will be denied. The court and suitors are bound by
its rules, and they should be construed as statutes would be construed. (Merchants' Nat. Bk. v.
Grunthal, 39 Fla. 388, 22 South. 685, and cases there cited.) Although constrained to so hold,
we would do so with reluctance if we did not believe that the correction of the record could
make no difference in the result.
The statute does not direct the justice court to certify the case to the district court on the
entering of a general denial by oral answer, but only when it appears by the filing of a verified
answer or upon the plaintiff's own showing that the title to real property is necessarily
involved. It is conceded that under the constitution and statute, to which reference is made in
the opinion, the justice of the peace is without jurisdiction to try cases in which such title is
involved, and the question presented pertains rather to the manner in which, as a matter of
practice, it may be shown that the title is necessarily involved so as to warrant the
certification of the case to the district court. Under a well-known rule of construction it may
be held that the later qualify the prior words in the statute, and that the case can only be
certified when it appears by the verified answer or on the plaintiff's own showing that the title
is necessarily involved. It would seem that the legislature may properly require, and have
required, the showing to be made in one of these ways as a matter of good faith. The
provision is similar in theory to that in some states which require the defendant to give notice
and a bond when he desires to have the case certified away from the justice court.
If the plaintiff in an action alleges that he is the owner of a piece of land, the mere entry of
an oral denial does not warrant the certification of the case, unless the courts legislate words
into the statute which it does not contain, and at the same time nullify the force of the
provision that the case may be removed when it appears by a verified answer or by the
plaintiff's own showing that the title is involved, for this provision would be surplusage if the
mere entry of an oral denial requires removal of the case. Oral and unverified answers may
be, and often are, entered for delay, and not seriously. They may be easily made when the
defendant has no bona fide contention regarding the title, and to hold that they are sufficient
to require the certification of the case would often lead to its removal when there is no proper
issue for the district court to try under its original jurisdiction, and enable overcontentious
attorneys to unnecessarily delay and annoy opposing litigants and trifle with the courts.
courts. Hence the provision for a verified answer is a wise one, and ought to be enforced. Nor
would the introduction of evidence by the plaintiff, such as deeds or patents indicating that he
held the title, and which were not conflicting, show that the title was involved or that there
was any real controversy regarding it for the district court. This construction does not deprive
the defendant of any rights, for, if he has, or believes he has, any real claims against the
plaintiff's assertion of title, he may easily file the verified answer or introduce some
conflicting evidence to show his good faith, and that the title is really involved, and thereby
require removal of the case.
When the defendant or his attorney took the stand on the trial and testified that, so far as he
knew, the title to the lands had always been in the plaintiff, there was an admission and an
estoppel, which, regardless of any pretense to the contrary in the oral answer, indicated that
there was no bona fide contention that the title was in defendant or in any one other than the
plaintiff, or which required the removal of the case to the district court. It should not be
demanded of any tribunal to try, or to have certified to it for trial, any matter which is not
bona fide in contention. On the same principle courts refuse to determine cases which have
been settled by the parties.
The order heretofore entered directing that the writ be dismissed, and that the papers be
returned to the justice court, is approved.
Norcross, J., dissenting:
I am unable to concur in the opinion of the court in this case. The court having granted a
rehearing, the proceeding was in the same condition it was before hearing had. Prior to the
argument on rehearing the court's attention was directed to the fact that respondent had, by
mistake, failed to certify a complete transcript upon the return of the writ, and a correct
transcript, duly certified, was presented for the consideration of the court. I think it was the
duty of the court, under these circumstances, to have proceeded with the consideration of the
case upon the corrected record.
consideration of the case upon the corrected record. (Comp. Laws, 3538.) The corrected
transcript of the justice's record shows that an oral answer, denying all the allegations of the
plaintiff's complaint, was filed. My views of the law, upon the record as thus presented, are
briefly expressed in my concurring opinion rendered upon the original hearing in this case.
____________
29 Nev. 203, 203 (1906) State v. Johnny
[No. 1695.]
THE STATE OF NEVADA, Respondent, v. JOHNNY, an Indian, and JOE IBAPAH,
an Indian, Appellants.
1. JurySelecting JuryIrregularities. Though the clerk of the board of county
commissioners cannot legally select, nor urge the selection of, any juror, the board, in selecting jurors
for attendance on the district court, may take advantage of information in the possession of the clerk, so
long as it exercises its own judgment in conformity with the statute.
2. Criminal LawSelection of JuryHarmless Error. In a criminal case, it was alleged that
the county clerk was present when the board selected jurors for attendance on the district court and
recommended a large number of electors to be selected as jurors. It was not shown that any of the persons
whom the clerk recommended were among the twelve who tried accused, or were on the panel drawn from
the box and in attendance on the court at the time of the trial. It was not claimed that the accused did not
have an impartial jury. Held, that the irregularity, if any, arising from the conduct of the clerk, was not
prejudicial to accused.
3. HomicideIndictmentSufficiency. Under Comp. Laws, 4208, providing that an
indictment shall be sufficient where the act charged is set forth in ordinary and concise language so as
to enable a person of common and ordinary understanding to know what is intended, etc., an indictment
charging that accused feloniously and of malice aforethought killed a human being by striking, cutting, and
stabbing, by means of which he died, being in substantial conformity to the form prescribed by section
4200, is not open to the objections that it does not charge accused with murder, or aver that the acts were
done with intent to kill.
4. Criminal LawTrialSeparate Trial of DefendantsTime to Demand Separate Trial of
Defendants. Comp. Laws, 4325-4327 (Cr. Prac. Act, 360-362), provide that where two or more defendants
are jointly indicted, they shall be jointly tried, unless for good cause shown the court shall otherwise direct,
and the court may at any time before defendant has gone into his defense, on the application of the district
attorney, direct any defendant to be discharged from the indictment, etc. Two persons jointly indicted were
jointly tried. After the state had rested defendant J. rested, and moved that the case be given to the jury at
that time, before any testimony was offered on behalf of his codefendant.
his codefendant. Held, that the motion was properly denied, for, if granted, it would have given the
defendant a separate trial, which could only be granted on application made before the commencement of
the formation of the jury.
5. SameHarmless ErrorErroneous Admission of Confession. A defendant cannot be
prejudiced by the admission of his confession which he voluntarily acknowledges under oath is true.
6. SameConfessionsAdmissibility. That one was imbued with fear, occasioned by his
arrest for crime, and a knowledge of his guilt thereof, does not alone make his confession inadmissible.
7. SameErroneous Admission of EvidenceHarmless Error. Where, on a trial for
homicide, defendant admitted the killing, and sought to avoid a conviction by showing that he was drunk
at the time, the admission of evidence that defendant when intoxicated was transformed into a dangerous
character was not prejudicial to him.
8. Error in Admitting Improper Evidence. The error in admitting improper evidence in a
criminal case to establish a fact testified to by other witnesses, including accused, when testifying as a
witness in his own behalf, is harmless.
9. HomicideInstructionsIntoxication. On a trial for murder in the first degree instructions
that drunkenness can only be considered for the purpose of determining the degree of the crime, and for
this purpose must be received with great caution; that presumptively every killing is murder; that in cases
of premeditated murder the fact of drunkenness is immaterial; that the jury must discriminate between the
condition of mind merely excited by intoxicating drink, and yet capable of forming a deliberate intent to
take life, and such a prostration of the faculties as renders a man incapable of forming the intent; that the
evidence must convince the jury that the deliberate premeditated design to murder was intentionally
formed; that, in considering whether such a design was formed, the jury must consider the evidence of
drunkenness, and, if accused was too much intoxicated to form such a deliberate and premeditated purpose,
he cannot be found guilty of murder in the first degree, etc., correctly state the law on the defense of
drunkenness.
10. Criminal LawInstructionsApplicability to Case. The refusal to charge on the law of
manslaughter on a trial for homicide is not error, in the absence of evidence tending to reduce the killing to
manslaughter.
11. Refusal to Give Instructions Embodied in Those Given. It is not error to refuse to give
instructions embodied in those given.
12. SameCredibility of Testimony of AccusedInstructions. Where the court charged that
the jury must consider all the evidence, an instruction that the evidence of accused, if convincing, could be
acted on, otherwise rejected, was not erroneous, as leading the jury to fail to give due consideration to the
testimony of the accused.
13. IndiansCrimes by Indians. Under Comp. Laws, 4655, providing that the laws
concerning crimes and punishments and the laws concerning proceedings in criminal cases shall extend
to the Indians in the state, etc., an Indian on trial for crime is subject to the same laws as govern in the case
of a white man.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Elko
County; George S. Brown, Judge.
Johnny, an Indian, and Joe Ibapah, an Indian, were convicted of murder in the first degree,
from which they appeal. Affirmed.
F. S. Gedney, for Appellant Johnny:
I. The court erred in denying defendant's challenge to the panel of the jury. Our statute
provides that the board of county commissioners shall select the trial jurors that shall be
required for attendance on the district court. (Comp. Laws, 3875.) A party entitled to an
action, if he is entitled to a right of trial by jury, is also entitled, at the commencement of the
trial, to a panel drawn in substantial conformity with the requirements of the statute. (State v.
Landry, 74 Pac. 418; State v. Tighe, 71 Pac. 3.)
II. A departure from the forms prescribed with respect to the drawing and return of the
jury, such as may deprive a defendant of an opportunity to secure a competent and impartial
jury, is ground for a challenge to a panel. (People v. Davis, 15 Pac. 8; State v. Austin, 183
Mo. 476; State v. McNamara, 3 Nev. 70; People v. Coffman, 24 Cal. 234.)
III. The indictment in this case is defective, and the court should have sustained the
defendant's objection to the same. It is defective in that it does not in the body thereof charge
the defendants of the crime of murder or state that murder was committed.
IV. The court should have granted the motion of the defendant Johnny, and allowed the
jury to pass upon his guilt or innocence, before Ibapah's defense was put in. It is the privilege
of a defendant jointly tried with another, when there is little or no more evidence against him
and he is willing to be tried on the evidence of the prosecution, to demand that the jury pass
upon his case before the other defendant opens his defense, and the jury should be charged by
the court, and consider their verdict as if the case had no connection with any other. (Vybee v.
State, 36 Tex. 366.)
V. One codefendant's case should be given to the jury when the other defendant requests
it, so that the codefendant may use him as a witness in his behalf. (Jones v. State, 62 Am.
Dec. 550; Fitzgerald v. State, 12 Mo. 413.) If this right is given to a codefendant, it certainly
should be extended to the person whose life is in jeopardy, the one who must suffer the
consequences of a conviction.
VI. There is no presumption that a killing is not manslaughter; the state must prove it is
murder; that is, the burden of proving that the killing was done with malice aforethought is
upon the state. Otherwise, the state could prove that a certain person killed another and could
there rest and be entitled to a verdict of murder in the second degree, at least. True, malice
may be presumed, but the facts when shown must warrant the presumption, and those facts
must be shown. Express malice must be shown by the external circumstances capable of
proof. (Comp. Laws, 4670-4672.) Malice is never presumed, but must be proved; it is an
essential element of murder, therefore there is no presumption that every, or any, killing is
murder. (21 Am. & Eng. Ency. Law, 2d ed. 139.)
E. J. L. Taber, for Appellant Joe Ibapah:
I. The specific acts alleged are not alleged to have been done with intent to kill. (Am. &
Eng. Ency. Law, vol. 21, pp. 102, 111; 10 Ency. Pl. & Pr. 116, 117.)
II. The confession made by Joe Ibapah the night of his arrest, while standing outside the
jail with an officer and two other men; his confession next morning at the breakfast table; and
the one after breakfast, in the jail, in the presence of the newspaper editors and others, should
have been excluded. These confessions were not freely and voluntarily made, and more
particularly the one made the evening of the arrest, while in the custody of Officer Harbin.
None of these confessions were reliable. They were extorted by fear. Ibapah was made to
believe that it would be better for him to tell. He was afraid not to tell something, whether it
was the truth or not. There were inducements held out by implication, Ibapah having been
advised that he had better tell the whole thing, as Johnny had already told it all, and had
made his confessions in reliance upon such statements; and requests and admonitions to
tell all about it were given in such language and under such circumstances that the
prisoner must have understood them as recommending a confession of guilt.
as Johnny had already told it all, and had made his confessions in reliance upon such
statements; and requests and admonitions to tell all about it were given in such language and
under such circumstances that the prisoner must have understood them as recommending a
confession of guilt. The words spoken to Ibapah were equivalent to: You had better speak
the truth. You had better confess. You had better tell about it. Ibapah was in the custody of
the officers when he made these confessions, and the evidence shows that they were induced
by hope and fear. The prisoner was certainly influenced to some extent by hope or fear, and
especially by fear. The confession made by Ibapah the evening of his arrest was certainly
obtained under improper influences, and there was no evidence obtained to rebut the
presumption that this influence was still exercising itself upon Ibapah's mind the next
morning, when he made confessions of the same nature. The evidence adduced to rebut this
presumption must be strong and clear in order to render the confession admissible. The state
did not acquit itself of the burden which rested upon it to show that these confessions were
voluntary. It seems clear that the confessions were, and that the first one in particular was,
made involuntarily and under the influence of fear. But, even if there was only a reasonable
doubt as to whether the confessions were voluntary or involuntary, the law is clear that they
should have been excluded. It should be remembered also that this defendant was an Indian.
He was not acquainted with criminal procedure. He did not know but that he might suffer
harm then and there. It is only natural that he should have been filled with the greatest fear
and that he should have expected that by telling something, whether true or not, he might
ward off present bodily harm. These confessions should not have been admitted under the
circumstances, even in the case of a white man, much less in the case of an ignorant Indian, in
the custody of the officers and surrounded by white men, not knowing what might happen to
him next. It cannot be said that these confessions were prompted by a desire on the part of the
accused to relieve his conscience or to state the truth.
The law looks with great suspicion on confessions made to officers. The actions of those in
control of Ibapah were equivalent to threats. The evidence clearly shows that a trap had been
laid for the prisoner.
III. The law is well settled that if the court sees fit to refuse defendant's requested
instructions and substitute for them its own, it must be careful in so doing to instruct the jury
in a manner which will be entirely fair. We submit that in this case the court in its instructions
has not given the rights proper consideration in behalf of the defendants, and we fully request
the court in considering this matter to bear in mind, among others, the following principles
and authorities: Abbott's Trial Brief, Criminal Causes, p. 612, par. 2.
IV. A party has a right to have his instructions given in his own language, if there are facts
in evidence to support them, and they contain a correct statement of the law, and are not
vague, ambiguous, or calculated to mislead. (State v. Allen, 45 W. Va. 65, 30 S. E. 209.)
Requested instructions which are pertinent and clear should be given, and others of a more
general nature should not be substituted therefor. (State v. McCann, 16 Wash. 249.)
V. The presumption of criminal intent, even where it has been shown that the act charged
was done with a knowledge of the facts, is not a presumption of law, but is a question for the
jury. It is error to instruct them that the law presumes a criminal intent. They may be
instructed that from such facts they may infer criminal intent. But where a specific intent is
necessary to make the act criminal, the specific intent cannot be inferred from the act.
(Abbott's Tr. Br., Crim. Causes, pp. 677, 678.)
VI. Intoxication may be considered upon the question of mental capacity to exercise a
specific intent or deliberation or premeditation necessary to be proved. (See note to Harris v.
United States, 36 L. R. A. 465; People v. Hill, 123 Cal. 47.)
VII. The trial court refused to give any instructions pertaining to manslaughter. This was
error. There was evidence, though it may have been slight, that the deceased was killed
because he refused to give back fifty cents which had been given him by one of the
defendants for the purpose of buying whisky.
been given him by one of the defendants for the purpose of buying whisky. This was evidence
of provocation, even if it was only slight. (11 Ency. Pl. & Pr. 182.)
VIII. The court committed error in both Nos. 13 and 27 of its charges to the jury, in that
those parts of the charge fail to state that the jury must find certain things from the evidence.
This should at least be stated, even if the court should not take the view that the words
beyond a reasonable doubt should also be added. (11 Ency. Pl. & Pr. 183.) The first part of
No. 27 of the court's charge to the jury was prejudicial repetition. (11 Ency. Pl. & Pr. 189.) As
to the trial court's refusal to give most of defendants' requested instructions, see 11 Ency. Pl.
& Pr. 213, 214, 215, 253, 298, 299.
James G. Sweeney, Attorney-General, and Otto T. Williams, District Attorney of Elko
County, for Respondent:
I. The trial court did not err in denying defendants' challenge to the jury. It nowhere
appears in the empaneling of the venire from which the jury was selected in the present case
that any of the substantial rights of the defendants were affected, nor that they suffered any
substantial injury. (Malignon v. Territory, 58 Pac. 505; Sharp v. United States, 76 Pac. 177;
United States v. Collins, 1 Woods, 499; State v. Squires, 2 Nev. 226; Brafford v.
Commonwealth, 16 S. W. 710; 12 Ency. Pl. & Pr. 277.) The county commissioners clearly
and unmistakably substantially complied with the law in drawing the jury, and the transcript
plainly discloses that there was no material or substantial departure from the statutes. (Comp.
Laws, 3875, 4288, 4293, 4294; Trans. pp. 297-319.) The testimony taken on the challenge
interposed shows beyond a question of a doubt that the board of county commissioners
empaneled the jury, and that, if any assistance was rendered them by the county clerk, it was
in his ministerial capacity as clerk of said board. We do not deny the doctrine sustained by
authorities cited by counsel and innumerable other authorities to the effect that if there is such
a substantial departure from the statutes in drawing a panel that defendants were deprived of a
fair and impartial jury, a challenge properly interposed should be sustained.
interposed should be sustained. Nor do we take any exception to the doctrine that if a panel
is drawn by any one other than those officially authorized and directed to empanel a jury that
such a jury will be illegal. It is not necessary to discuss the point further in the present case,
however, as the court's findings of fact, as settled and allowed on the bill of exceptions on the
testimony adduced at the time the challenge was interposed, is abundantly sustained by the
case of State v. Hancock, 28 Nev. 300.
II. The indictment is legally sufficient. The intent of a person to commit murder need not be
stated in the indictment; the intent resolves itself into a question of fact to be determined from
the evidence in each particular case. In setting out a statutory offense it is sufficient to
describe it in the words of the statute, with the statement of the acts constituting the offense,
in ordinary and concise language and in such a manner as to show that the statutory offense
has been done by the party therein named and to inform him as to what has been intended.
(Comp. Laws, 4199-4201, 4206-4208; State v. Millain, 3 Nev. 409; State v. Glovery, 10 Nev.
24; State v. Huff, 11 Nev. 17; State v. Raymond, 11 Nev. 99; State v. Crozier, 12 Nev. 300;
State v. Hing, 18 Nev. 307; State v. Trolson, 21 Nev. 419.)
III. There was no evidence tending to show manslaughter, hence requested instructions were
properly refused. (State v. Millain, 3 Nev. 410; State v. Donovan, 10 Nev. 36.) No evidence
in the record tending to show insanity, hence improper to instruct on that subject. (State v.
Hartley, 22 Nev. 359.) And the instruction on drunkenness presented the law of the case.
(State v. Thompson, 12 Nev. 151; People v. Belencia, 21 Cal. 544; People v. Williams, 43
Cal. 345; People v. King, 27 Cal. 507; People v. Lewis, 36 Cal. 531; People v. Ferris, 55 Cal.
592; People v. Vincent, 95 Cal. 428; People v. Hawkins, 63 Pac. 258.) Judgment not to be
reversed because of refusal to give instruction requested if those refused were covered and the
law of the case laid down properly and fairly by trial judge. (State v. Buralli, 27 Nev. 54, and
cases there cited.)
The defendants, on the 27th day of December, 1905, killed a human being, designated in
the indictment as Fred Foreman, at Montello, in the County of Elko, by cutting and stabbing
him with knives. They were thereafter jointly indicted by the grand jury of Elko County for
the crime of murder, jointly tried upon such indictment, and both convicted of murder in the
first degree. Thereafter, on the 23d day of March, 1906, judgment of death was pronounced
upon them. They appeal to this court from the judgment, and from an order denying their
motion for a new trial.
Both upon the trial and upon this appeal, the defendants have been each represented by
special counsel, and each relies upon one or more assignments of error based upon exceptions
in which the other did not join. For this reason, the case must be treated as if there were two
separate appeals. Most points, however, are common to both, and will require to be noticed
but once. The evidence in this case shows that the man killed by the defendants was one of
the world's unfortunates, who was traveling, friendless and alone, across the state. He had but
one leg, and walked with a crutch. Upon the night of the murder he was sleeping in an
enclosure made of railroad ties, in the center of which was a fire. This inclosure was entered
by the defendants, according to their own testimony, some time during the night, probably
about midnight. At the trial the defendants made no attempt to disclaim responsibility for the
killing, but, upon the contrary, admitted it in their own testimony. The defendant, Ibapah,
who is a Goshute Indian, detailed with considerable particularity the manner in which the
murder was accomplished. According to his testimony, the defendant, Johnny, and himself
had been drinking quite frequently of Jamaica ginger during the day, and had also secured a
pint flask of whisky, which they consumed. Some time during the night they observed the
light caused by the fire in the tie house. They went to the inclosure and climbed down in it,
finding the man, whom they afterwards killed, lying down on some ties. They first sat down
upon a tie, and then asked the man to go and get them some whisky.
and then asked the man to go and get them some whisky. Johnny gave him half a dollar, and
the man said, I can't go up there; I got one leg. What happened next the witness said he did
not remember because he was too drunk. He then testified that the man put the money in his
pocket, and Johnny asked him to give it back. He did not know whether he gave the money
back, but Johnny said to him, Ibapah, Let's go and kill that man. I hold both hands and you
cut throat. Ibapah said, All right. Johnny then gave Ibapah his knife, and held the man's
hands crossways by the wrists. Ibapah then went and got the man by his coat. The man tried
to raise up, and Ibapah put his knee on his breast, holding his knife in his right hand. Johnny
then said, Go ahead and cut him. He held the coat with his left hand and with the right hand
he put the knife against his throat, and Johnny says, Cut him hard. Then he killed him.
After they had killed him Johnny looked in the man's pockets. Johnny then cut off the man's
shoe, saying, There is money in shoe sometimes. Then they both said, Let's put him on top
of fire. Johnny said, Let's put on lots of ties and burn him up. They put the body on the
fire, and put ties on it also. They then left; Ibapah taking with him the dead man's overcoat,
and went to the camp of Johnny's father. Upon arriving there Johnny asked for something to
eat, and Ibapah told that they had killed a man. The testimony of Johnny, who is a Shoshone
Indian, varies from that of Ibapah, in that he testified he did not know much about what
happened; that he was too drunk to remember. He testified that he remembered holding the
murdered man's hands, and helping to place him on the fire, but further than that he had no
recollection of the occurrence whatever. The condition in which the body of the deceased was
found the morning following the murder is described by one of the witnesses for the state as
follows: The throat had been cut from ear to ear. The left eye had been stabbed out. There
was a deep wound in the left cheek. The right arm had been broken so that the bone protruded
through the clothing. There were bruises on the body. The clothing had been almost torn off
the body. Blood stains were visible all around, and a pool of blood was in the south corner
of the little tie house in which the body lay.
were visible all around, and a pool of blood was in the south corner of the little tie house in
which the body lay. The body had been thrown on a coal fire, and was burning at the time.
The imprint of a bloody hand, clearly defined, was visible on the ties lying just west of the tie
house. Several ties had been thrown into this tie house near the fire, and one or two ties onto
the fire. I saw two knives; one lying on the pile of ties where the imprint of the hand was
outside, and the other in the tie house between the man's leg and a tie. The man's shoe was
near his foot. It had been cut from the top to the sole. There were bloody stains on and in the
shoe. The pockets of the coat and trousers had been turned inside out. Part of the clothing was
burned, and the pockets had been torn away and thrown into the fire and on the ground in the
tie house.
It would seem from the record that there was some manifestation upon the part of each of
the defendants to seek to gain some advantage at the expense of the other, although both
relied upon drunkenness in mitigation of the offense. According to their testimony, they had
consumed during the day several bottles of Jamaica ginger, which contained, according to the
testimony, about seventy per cent of alcohol; and a pint flask of whisky. Charles Brown, a
witness on behalf of the defendants, testified that he saw them at Montello the afternoon and
evening preceding the murder. He saw them first about 2 o'clock, when they seemed to be
under the influence of liquor, drunk enough to be boisterous. He saw them again between 4
and 5 o'clock, coming in front of a saloon, and they were talking quite loud, and were drunk.
He, in company with a man named Richard Cromley, saw them again that night between 11
and 12 o'clock. They were quite drunk then, trying to help each other along. They were
talking very loud and boisterous.
1. Upon the case being called for trial, the defendants jointly interposed a challenge to the
panel, upon the ground that there was a material departure from the forms prescribed by the
statute in respect to the drawing and the return of the jury. The irregularity complained of is
alleged to have consisted in this: That at the meeting of the board of county commissioners,
for the purpose of selecting from the qualified electors the number of trial jurors that
would be required for attendance upon the district court until the next annual selection,
one A. G. Dawley, county clerk of the County of Elko, was present, and did then and there
nominate, suggest, and recommend a large number of electors to be selected as such
jurors, to wit, more than twenty, and that the names so selected and nominated by said
Dawley were entered upon the minutes of the board, and their names deposited in the
jury box.
commissioners, for the purpose of selecting from the qualified electors the number of trial
jurors that would be required for attendance upon the district court until the next annual
selection, one A. G. Dawley, county clerk of the County of Elko, was present, and did then
and there nominate, suggest, and recommend a large number of electors to be selected as such
jurors, to wit, more than twenty, and that the names so selected and nominated by said
Dawley were entered upon the minutes of the board, and their names deposited in the jury
box. Also, that a large number of the persons selected by the board at the time were selected
from old jury lists of said County of Elko, and that many of the names so selected were there
suggested, designated, and recommended by the said Dawley. The court heard the testimony
of several witnesses relative to the manner of selecting the trial jurors for the county for the
year in question, and then made his finding, and delivered his decision on the motion as
follows: From the testimony produced here on the hearing of the challenge, the court finds
that all of the persons whose names were put on the jury list were selected by the board of
county commissioners; that none of them were selected by Mr. Dawley as alleged in the
challenge, and also find that it is not true that selections were made from old jury lists,
although if a jury list had been used by the commissioners for the purpose of finding out the
names, it would have been perfectly proper. The book used was a book showing jury service,
and it was proper for the commissioners to consult the book. I do not find that, although Mr.
Dawley in certain cases said that certain men would be good jurymen; I do not find that in
any such case the commissioners failed to exercise their own judgment in making up the list.
There has been no injury shown to the defendants. For these reasons there has been no
material departure from the forms prescribed by the statute. The challenge is disallowed.
We have carefully reviewed the transcript of the evidence in the record upon the motion,
and think the same fully supports the findings and conclusions of the trial court. Mr. Dawley
was the clerk of the court, as well as the clerk of the board of county commissioners.
board of county commissioners. He had kept a record of jury service which covered a period
of nearly ten years. Although he could not legally select, nor properly urge the selection of
any juror, we see no objection to the board of county commissioners taking advantage of
information in the possession of their clerk, so long as they exercise their own judgment in
conformity with the statute, and that, we think, the evidence shows they did in this case. If
any of the men whom Mr. Dawley said would make good jurors were put on the general list
of two hundred and fifty-five for the year by the commissioners, before or after he had so
stated, it is not shown that any of them were among the twelve who tried the defendants, or
were on the panel drawn from the box and in attendance on court at the time of the trial. It
cannot, we think, be said, nor was it claimed, that defendants did not have the benefit of a fair
and impartial jury; nor that they were deprived of any substantial right, or were in any way
prejudiced by the manner in which the jury was selected. (12 Ency. Pl. & Pr. 277.)
2. It is contended that the indictment is defective, and that the court should have sustained
defendants' objection to the same. The body of the indictment reads as follows:
Defendants Johnny, an Indian (whose other name, if any, is to the grand jury unknown),
and Joe Ibapah, an Indian (whose other name, if any, is to the grand jury unknown), are
accused by the grand jury of the County of Elko, State of Nevada, by this indictment of the
crime of murder, committed as follows, to wit: That the said defendants Johnny, an Indian,
and Joe Ibapah, an Indian, on or about the 27th day of December, A. D. 1905, in the County
of Elko, State of Nevada, and before the finding of this indictment, without authority of law,
feloniously, wilfully, unlawfully and of their malice aforethought, killed a certain human
being, herein designated as Fred Foreman, whose true name is to the grand jury unknown, by
striking, cutting, and stabbing the said Fred Foreman with knives; whereof, and by means of
the striking, cutting, and stabbing aforesaid, the said Fred Foreman then and there died.
Counsel for appellants claim that the indictment is defective in this: "That it does not in
the body thereof charge the defendants of the crime of murder or state that murder was
committed." Also, that "the specific acts alleged, viz., the cutting, etc., are not alleged to
have been done with intent to kill."
ive in this: That it does not in the body thereof charge the defendants of the crime of murder
or state that murder was committed. Also, that the specific acts alleged, viz., the cutting,
etc., are not alleged to have been done with intent to kill. The indictment follows
substantially the form suggested by our statute. (Comp. Laws, 4200.) The act charged as the
offense is, we think, clearly and distinctly set forth in ordinary and concise language, and in
such a manner as to enable a person of common understanding to know what is intended, and
with such a degree of certainty as to enable a court to pronounce judgment upon a conviction
according to the right of the case, and it is therefore sufficient. (Comp. Laws, 4208.)
3. After the state had rested its case, counsel for the defendant Johnny, announced that his
client, also, rested, and on his behalf moved that the case be given to the jury at this time
before any testimony is offered on behalf of the defendant Ibapah. Counsel then stated to the
court, as a reason for making the motion, that Mr. Taber, counsel for Ibapah, informs me
that the defendant Ibapah will take the stand in his own behalf, and I believe Ibapah's
testimony will be prejudicial to the defendant Johnny. The court, after taking time to
consider the motion, denied it, and this ruling is assigned as error.
Sections 360 to 362, inclusive, of our criminal practice act (Comp. Law, 4325-4327)
provide as follows:
4325. Sec. 360. When two or more defendants are jointly indicted for any offense, they
shall be jointly tried, unless for good cause shown by the prosecution or defense, the court
shall otherwise direct.
4326. Sec. 361. When two or more persons are included in the same indictment, the court
may at any time before the defendant has gone into his defense, on the application of the
district attorney, direct any defendant to be discharged from the indictment, that he may be a
witness for the people.
4327. Sec. 362. When two or more persons are included in the same indictment and the
court is of opinion that in regard to a particular defendant there is not sufficient evidence to
put him on his defense, it shall order him to be discharged from the indictment, before the
evidence shall be deemed closed, that he may be a witness for his codefendant."
discharged from the indictment, before the evidence shall be deemed closed, that he may be a
witness for his codefendant.
A defendant, jointly indicted with another, who intends to demand a separate trial, must
make his motion before the formation of the jury is commenced. (State v. McLane, 15 Nev.
359.) To have permitted the defendant Johnny to have his case submitted and determined
upon the conclusion of the state's case, would, in effect, have given him a separate trial,
which would not only have been in plain violation of the statute, but might have been fatal
error so far as Ibapah's case was concerned. Counsel for defendant Johnny, in his brief, says:
It is the privilege of a defendant jointly tried with another, when there is little or no evidence
against him and he is willing to be tried on the evidence of the prosecution, to demand that
the jury pass upon his case before the other defendant opens his defense; and the jury should
be charged by the court, and consider their verdict as if the case had no connection with any
other. To support this contention counsel cites Vybee v. State, 36 Tex. 366. We think
counsel's position is not only not supported by the authority cited, but that it is clearly not the
law. We quote from the authority cited the following: After the defendants had withdrawn
their motion for a severance, and elected to be jointly tried, they could at any time after the
state had closed its evidence, if there was little or no evidence against one or the other of
them, have demanded that the jury should decide upon the case of such one of them; and in
all such cases the jury should be charged by the court, and they should consider of their
verdict, in the same manner as if the case had no connection whatever with any other, and
their verdict should be guilty or not guilty, as the case may be. It is clearly shown by the
decision that both of the defendants must join in the request for such a submission, and that
the purpose of it is so that the other defendant shall not be deprived of the evidence of
codefendants who are not inculpated by the state's evidence. In this state we have a simpler
way of accomplishing the same result. See Comp. Laws, 4327, supra. In any event, both
under the Texas procedure and that of this state, there must not be sufficient evidence, in the
judgment of the court, to put him on his defense before his codefendant can, in the
manner required, avail himself of his testimony if he so desires.
must not be sufficient evidence, in the judgment of the court, to put him on his defense before
his codefendant can, in the manner required, avail himself of his testimony if he so desires.
Johnny was not in the fortunate position that it could be said there was little or no evidence
against him, nor was the purpose sought to be accomplished by the submission of his case
upon the close of the state's testimony, the use of his testimony in behalf of his codefendant.
4. Confessions of the defendant Ibapah were admitted in evidence, over the objection of
his counsel that it did not appear that such confessions were given voluntarily; but, upon the
contrary, were obtained by reason of fear, inducements, and threats. One of these confessions
was made to the officers upon the evening of the defendant's arrest, and before he was placed
in jail. The other confession was made the following morning, in the presence of the sheriff,
to representatives of the local newspapers. The latter confession was reduced to writing, read
over to the defendant, and signed by him by affixing his mark thereto. The first confession
was made while the defendant was in the custody of Guy Harbin, the deputy sheriff, a Mr.
Brown, and a Mr. Stanley, during the temporary absence of the sheriff. It would appear from
the evidence that the defendant was told by Mr. Stanley that the defendant Johnny had told of
the crime, and that he further said to him: You might as well tell the truth. Beyond this
there does not appear to have been anything said to the defendant to induce him to make a
confession. Counsel placed the defendant Ibapah upon the stand to recite the circumstances of
the confession, but he did not vary in any particular degree in his testimony from that recited
by the witness for the state. He did, however, say that it was Mr. Harbin who told him that
Johnny had already told about it. He then testified: When he told me that it scared me
more. Everything that I told then was true. I was scared very much that night. All that can be
made of the defendant's testimony is, that he was scared when he made his confession to
Harbin, but he iterates upon the stand that what he told that night was the truth. The only
object in excluding testimony given under threats, duress, or upon promise of reward, is,
that such testimony might not be the truth.
under threats, duress, or upon promise of reward, is, that such testimony might not be the
truth. A defendant cannot be prejudiced by the admission of a confession which he
voluntarily acknowledges, under oath, is the truth. But the fact that he was imbued with fear
occasioned by his arrest and a knowledge of guilt, would not alone make his confession
inadmissible. All that has been said about the confession made by the defendant Ibapah to
Deputy Sheriff Harbin and the others, upon the evening of his arrest, will apply to his
confession made the following morning to the newspaper men. The sheriff testified as
follows with reference to the latter confession: When Ibapah was brought out, I told him if
he felt like it he could make a statement to these men. I told him that it was not necessary
unless he wanted to, and he said he would tell them. Even if there was a question as to the
admissibility of these confessions, the error, if any, became cured when the defendant became
a witness in his own behalf, and corroborated every statement contained in his various
confessions. (People v. Ketchum, 73 Cal. 635, 15 Pac. 353; People v. Daniels, 70 Cal. 521,
11 Pac. 655; 12 Cyc. 466.)
5. After Ibapah had testified in his own defense, and rested his case, counsel for Johnny
called as a witness Antelope Jack, Chief of the Goshutes, to testify to the character of Ibapah.
To his testimony counsel for Ibapah interposed the following objections: I object to placing
any witness on the stand with reference to Ibapah by the codefendant Johnny, as it cannot
possibly touch the question as to who was the instigator of this crime. The objection was
overruled, and we quote from the record the following testimony of the witness: My name is
Antelope Jack. I live at Deep Creek. I live there long time. I know Ibapah, since he was small
boyever since his father give him whisky. Ibapah's father all the time give him whisky. He
is a good boyeverybody know he is a good boy. Everybody think when he grow up he was
a good boy. Last summer Indians think about him, maybe he kill white man and maybe he kill
Indian. Everybody around Deep Creek is afraid of Ibapah. Ibapah was a little boy when his
father first gave him whisky.
first gave him whisky. I think Ibapah was a good boy when he was little. When he was a boy
he was always a good boy. When he get big everybody was afraid of him. When he got drunk
he was bad. When he was not drunk he good boy. Conceding, without deciding, that it was
error to have admitted this testimony, we are unable to see how it could have been prejudicial
to the defendant Ibapah. Ibapah had already testified that he had killed the deceased by cutting
his throat while Johnny held his hands, and that thereafter they had thrown the body upon the
fire. He was not seeking to establish innocence of crime, but his effort was directed to
avoiding a conviction of murder in the first degree, by showing that he was in a drunken
condition at the time he killed the deceased, and was therefore incapable of that premeditation
which is an essential element of murder in the first degree. Evidence which tended to show
that intoxicating liquor had the effect of transforming him from a good boy into a dangerous
character, we think could not have prejudiced the defense, but would rather tend to strengthen
it.
6. Counsel for Johnny assigns error in the refusal of the court to strike out, upon the
ground that it was hearsay, the testimony of an Indian witness called Captain Jim, who
testified upon the part of the state to the effect that on the night of the killing the two
defendants were at his camp, and that Ibapah said in the presence of Johnny that Johnny held
the man's hands while Ibapah cut his throat. We doubt if the record of this testimony will
warrant a conclusion that it was hearsay. But, conceding that it was, the error in admitting it
was harmless, for other witnesses testified to the same conversation, and Johnny, as a witness
in his own behalf, also testified to the same effect. (People v. Marseiler, 70 Cal. 98, 11 Pac.
503.)
7. Upon the law of drunkenness as a defense to crime, the court gave instructions Nos. 26
and 27 of its own motion, and defendants requested instruction No. 5, which instructions read
as follows:
(26) It is a well-settled rule of law that drunkenness is no excuse for the commission of a
crime. Temporary insanity, produced by intoxication does not destroy responsibility, when
the party, when sane and responsible made himself voluntarily intoxicated; and
drunkenness forms no defense whatever to the fact of guilt, for, when a crime is
committed by a party while in a fit of intoxication, the law will not allow him to avail
himself of his own gross vice and misconduct to shelter himself from the legal
consequences of such crime.
the party, when sane and responsible made himself voluntarily intoxicated; and drunkenness
forms no defense whatever to the fact of guilt, for, when a crime is committed by a party
while in a fit of intoxication, the law will not allow him to avail himself of his own gross vice
and misconduct to shelter himself from the legal consequences of such crime. Evidence of
drunkenness can only be considered by the jury for the purpose of determining the degree of
the crime, and, for this purpose, it must be received with great caution.
(27) In this case if you find that the defendants unlawfully and with malice aforethought,
as already defined to you, killed the person designated as Fred Foreman, it is murder, and if
such killing was wilful, deliberate, and premeditated, or was done in the perpetration or
attempts to perpetrate robbery, it is murder of the first degree, otherwise it is murder of the
second degree, and in determining the degree, any evidence tending to show the mental status
of the defendants is proper for the consideration of the jury. The fact, if it be a fact, that the
defendants were drunk, does not render the act less criminal, and in that sense it is not
available as an excuse, but there is nothing in this to exclude it as evidence upon the question
as to whether the act was deliberate and premeditated or was committed in the carrying out of
an intent to rob. Presumptively, every killing is murder, but so far as the degree is concerned,
no presumption arises from the mere fact of killing, considered separately and apart from the
circumstances under which the killing occurred. The question is one of fact to be determined
by the jury from the evidence in the case, and it is not a mere legal conclusion, and
drunkenness, as evidence of want of premeditation or of an intent to rob, is not within the rule
which excludes it as an excuse. Drunkenness neither excuses the offense nor avoids the
punishment which the law inflicts, when the character of the offense is ascertained and
determined, but evidence of drunkenness is admissible solely with reference to the question
of premeditation, or where there is evidence tending to show that a murder has been
committed in the perpetration or attempt to perpetrate a robbery, as to the question of the
existence of the felonious intent to steal which is an essential element of robbery.
which is an essential element of robbery. In cases of premeditated murder, the fact of
drunkenness is immaterial. A man who is drunk may act with premeditation as well as a sober
one, and is equally responsible for the consequences of his act. In murder of the first degree, it
is necessary to prove the killing was premeditated or was committed in the perpetration or
attempt to perpetrate robbery or one of the other felonies already enumerated, which involves,
of course, an inquiry into the state of mind under which the party committed it, and, in
prosecution of such an inquiry, his condition as drunk or sober is proper to be considered. The
weight to be given it is a matter for the jury to determine, and it should be received with great
caution and carefully examined in connection with all the circumstances and evidence in the
case. You should discriminate between the conditions of mind merely excited by intoxicating
drink and yet capable of forming a specific and deliberate intent to take life, and such a
prostration of the faculties as renders a man incapable of forming the intent, or of deliberation
or premeditation. If an intoxicated person has the capacity to form the intent to take life, and
conceives and executes such intent, it is no ground for reducing the degree of his crime that
he was induced to conceive it, or to conceive it more suddenly by reason of his intoxication.
Defendants' requested instruction No. 5: You are instructed that in order to find the
defendants or either of them guilty of murder in the first degree you must find from the
evidence beyond all reasonable doubt that the murder was perpetrated by means of poison, or
lying in wait, or torture, or by any other, wilful, deliberate, and premeditated killing, or in the
perpetration or attempt to perpetrate robbery. This ingredient of deliberate premeditated
killing must be clearly shown and proven beyond all reasonable doubt. It is not sufficient that
you think that the killing was deliberate and premeditated; the evidence must convince you of
that fact to an abiding certainty and beyond all reasonable doubt. The evidence of deliberation
and premeditation must be such as to convince you that the deliberate premeditated design
and purpose to murder was knowingly and intentionally formed and considered in the mind
of each defendant and meditated upon before the fatal blow was struck; and, in
considering whether such a design was formed in the minds of each of the defendants,
you should consider the evidence, if any, of drunkenness.
ingly and intentionally formed and considered in the mind of each defendant and meditated
upon before the fatal blow was struck; and, in considering whether such a design was formed
in the minds of each of the defendants, you should consider the evidence, if any, of
drunkenness. If the defendants were drunk at the time, and were too much intoxicated to form
such a deliberate and premeditated purpose, they cannot be found guilty of murder in the first
degree. It is true that drunkenness is no excuse for the commission of an offense, but
nevertheless the jury must consider the evidence of drunkenness and determine whether it
was sufficient to so cloud the minds of the defendants as to interfere with the formation of
deliberate and premeditated purpose to kill. If the drunkenness was sufficient to create a
reasonable doubt in your minds as to the existence of such a deliberate premeditated purpose
you cannot find the defendants guilty of murder in the first degree.
Counsel for defendants attack the court's instruction No. 27 as being an erroneous
statement of the law, ambiguous and misleading, consequently highly prejudicial to the
defendants. The instruction complained of was doubtless copied in the main from an
instruction that has a number of times met with the approval of the Supreme Court of
California. (People v. Williams, 43 Cal. 345; People v. Belencia, 21 Cal. 545; People v.
Lewis, 36 Cal. 531; People v. Ferris, 55 Cal. 592; People v. Jones, 63 Cal. 168; People v.
Vincent, 95 Cal. 425, 30 Pac. 581.) The instructions upon the law of drunkenness, as
applicable to this case, should be considered together. The jury, we think, were fairly and
correctly instructed upon this point of the law. (People v. Leonardi, 143 N. Y. 364, 38 N. E.
372; State v. Hawkins, 23 Wash. 289, 63 Pac. 258; Wilson v. State, 60 N. J. Law, 171, 37 Atl.
954, 38 Atl. 428; Hopt v. People, 104 U. S. 632, 26 L. Ed. 873; Booher v. State, 156 Ind.
447, 60 N. E. 156, 54 L. R. A. 391; State v. Thompson, 12 Nev. 151.) See, also, 21 Cyc. 670;
McClain on Cr. Law. 162.
8. The refusal of the court to give certain requested instructions upon the law of
manslaughter was not error, as there was no evidence tending to reduce the offense to the
grade of manslaughter.
grade of manslaughter. (State v. Donovan, 10 Nev. 36; State v. Millain, 3 Nev. 409; Pirtle v.
State, 9 Humph. 663; State v. Weaver, 35 Or. 415, 58 Pac. 109.)
9. A number of instructions requested by defendants were refused by the court, either
upon the ground that they were inapplicable to the case, or that they were covered by
instructions already given. A careful examination of these requested instructions convinces us
that the court did not err in their refusal. (State v. Buralli, 27 Nev. 54, 71 Pac. 532; State v.
Maher, 25 Nev. 465, 62 Pac. 236.)
10. It is contended that the instruction given at the request of the prosecution relative to
the consideration which the jury should give to the defendants' testimony, was erroneous and
prejudicial. This instruction, substantially as given by the court in this case, has heretofore in
a number of cases been approved by this court. (State v. Hartley, 22 Nev. 360, 40 Pac. 372,
28 L. R. A. 33; State v. Streeter, 20 Nev. 403, 22 Pac. 758; State v. Hing, 16 Nev. 307; State
v. Hymer, 15 Nev. 49.) The following language of the instruction is that to which exception is
particularly taken: If convincing and carrying with it a belief in its truth, you have a right to
act upon it; if not, you have a right to reject it, etc. As this instruction has been given in other
cases in this state, the words we have italicized have been omitted. It is urged by counsel here
that the use of these words was, in effect, a direction to the jury that it was entirely optional
with them whether they should act upon the testimony of the defendants, even though they
believed in the truth of the same. While we think it would have been clearer to have omitted
from the instruction the words in question we do not think it at all probable that the jury
placed any such construction as contended upon them. In another instruction the jury were
told that they must consider all the evidence, etc. That a jury would fail to give due
consideration to the testimony of a defendant, which was convincing and carried with it a
belief in its truth, is too unreasonable for consideration. We have no hesitancy in saying that
the defendants were not prejudiced by this instruction.
There are some other alleged errors in the record, but we have examined them, and think
they are not of sufficient merit to require notice here.
have examined them, and think they are not of sufficient merit to require notice here. Counsel
for defendants have dwelt in their briefs upon the point that the defendants were Indians, and
that, as a matter of general knowledge, intoxicating liquor more readily destroys the mental
faculties of the Indian than it does those of the white man. It is further argued that the very
revolting manner in which this crime was committed tends strongly to prove that at the time
the crime was committed the defendants were impelled to commit the murder because of their
drunken condition. We may concede all that counsel has to say upon this question. This case
serves as a terrible illustration of what may result from the crime of disposing of spirituous
liquors to Indians. Liquor has the effect of arousing in the Indian all the dormant savagery and
cruelty of his nature. It is a crime in this state to dispose of liquor to Indians, and it may not
be out of place here to say that the violation of this law doubtless led to the revolting murder
committed by these two defendants. The statute of this state applies the criminal laws to the
Indians, without reservation, other than where the offense is committed by one Indian against
another upon a government reservation. (Comp. Laws, 4655.) Upon the trial for an offense,
they are subject to the same laws, rules, and conditions as govern in the case of a white man.
The case appears to have been very carefully tried in the lower court. We have examined all
of the assignments of error, and our conclusion is that the judgment of the trial court must be
affirmed.
The judgment and order denying the motion for a new trial are affirmed, and the district
court is directed to fix a time and make all necessary and proper orders for having its sentence
carried into effect by the warden of the state prison.
____________
29 Nev. 226, 226 (1906) Ex Parte Patterson
[No. 1705.]
In the Matter of the Application of R. W. PATTERSON for a Writ of Habeas Corpus.
Criminal LawPunishmentSentenceFine and Imprisonment. A sentence reciting the conviction of accused
of a criminal offense, and that he "be fined * * * $500 and imprisonment in the county jail * * * for the
term of one hundred and eighty days in addition to said fine," imposes absolutely a fine of $500 without
order of commitment until the same be paid, and an absolute imprisonment for one hundred and eighty
days. Held, that accused, having been imprisoned one hundred and eighty days, is entitled to his discharge,
though the fine has not been paid.
Petition by R. W. Patterson for a writ of habeas corpus against C. P. Ferrell, Sheriff of
Washoe County, State of Nevada. Granted, and petitioner discharged, on the ground that no
legal warrant exists for holding petitioner in confinement or restraint.
M. B. Moore, for Petitioner:
I. Justice's jurisdiction. (Comp. Laws, 2531.) Judgment to pay fine. (Comp. Laws, 4413,
4414, 4417, 4418, 4578, 4579, 4588, 4590, 4646.)
II. Compare section 5155 and section 4919, Revised Laws Utah, 1898. Case read: Roberts
v. Howells, 62 Pac. 892. Cases cited: In re Lewis, 41 Pac. 1077; People v. Hamberg, 24 Pac.
300; Lowery v. Hayne, 24 Pac. 995; In re Wadleigh, 23 Pac. 192; In re Rosenheim, 23 Pac.
372; Ex parte Baldwin, 60 Cal. 434. The cases of Rosenheim and Baldwin are both California
civil cases, and emphatically sustained and are in accord with case of Roberts v. Howells.
E. P. Moran, for Respondent. [No brief on file.]
Petitioner was imprisoned in the jail of Washoe County under a warrant of commitment
made by the justice of the peace of Sparks Township in said county. The commitment was in
the following form:
State of Nevada, Plaintiff v. R. W. Patterson, Defendant. A complaint under oath having
been filed in this court on the 30th day of April, 1906, charging said defendant, R. W.
Patterson, of a certain public offense, to wit, a misdemeanor, committed on the 26th day
of April, 1906, and a warrant of arrest having been duly issued on said 30th day of April,
1906, for the arrest of said defendant; and said defendant having been duly arrested, and
thereafter, on the 2d day of May, 1906, tried before the court with a jury so found guilty
as charged in the complaint, and all and singular the law and the premises by the court
here understood and fully considered, and no sufficient cause appearing why judgment
should not be pronounced against said defendant.
the 30th day of April, 1906, charging said defendant, R. W. Patterson, of a certain public
offense, to wit, a misdemeanor, committed on the 26th day of April, 1906, and a warrant of
arrest having been duly issued on said 30th day of April, 1906, for the arrest of said
defendant; and said defendant having been duly arrested, and thereafter, on the 2d day of
May, 1906, tried before the court with a jury so found guilty as charged in the complaint, and
all and singular the law and the premises by the court here understood and fully considered,
and no sufficient cause appearing why judgment should not be pronounced against said
defendant. Wherefore, it is ordered and adjudged by the court that for said offense you, the
said R. W. Patterson, be fined the sum of five hundred dollars, and imprisoned in the county
jail of said County of Washoe for the term of one hundred and eighty days in addition to said
fine, from date hereof. Dated in open court the 3d day of May, 1906. [Signed] James Pollock,
Justice of the Peace.
Petitioner had, with credits, etc., served the full term of the one hundred and eighty days
stated in the commitment; but had not paid the fine of $500 therein stated.
Two questions were argued by counsel in the case: (1) Does the warrant of commitment
above stated impose upon the petitioner a fine of $500, and also give him the privilege of
paying the said fine at rate of one day for each two dollars thereof? And (2) does the statute
warrant the justice in imposing such sentence, to wit, absolute imprisonment for the full term
of one hundred and eighty days, and in addition thereto imprisonment for two hundred and
fifty days, conditioned upon his failure to pay the fine of $500? Under the view that we take
of the case, the second question need not be determined. The sentence in the warrant of
commitment is plainly: (1) An absolute fine for $500, without order of commitment to prison
until said fine be paid at rate of two dollars, etc.: and (2) an absolute imprisonment for one
hundred and eighty days. There being no alternative in the first part of the sentence of
discharging the fine of $500 by serving one day's imprisonment for each two dollars thereof,
such part of the sentence having, as above seen, been obliterated, such fine is absolute,
and the petitioner could not be imprisoned at all under said first part; and the petitioner
having with credits, etc., served the full term of one hundred and eighty days imposed
upon him under the second part of said sentence, he was, of course, entitled to his
discharge.
It appearing that the respondent herein, C. P. Ferrell, sheriff of Washoe County, has no
legal warrant for longer holding the petitioner in custody, it is therefore ordered that the
petitioner be forthwith discharged from custody by the respondent herein.
such part of the sentence having, as above seen, been obliterated, such fine is absolute, and
the petitioner could not be imprisoned at all under said first part; and the petitioner having
with credits, etc., served the full term of one hundred and eighty days imposed upon him
under the second part of said sentence, he was, of course, entitled to his discharge.
It appearing that the respondent herein, C. P. Ferrell, sheriff of Washoe County, has no
legal warrant for longer holding the petitioner in custody, it is therefore ordered that the
petitioner be forthwith discharged from custody by the respondent herein.
____________
29 Nev. 228, 228 (1906) Hershiser v. Ward
[No. 1699.]
A. E. HERSHISER and DANIEL HUTCHINSON, Appellants, v. B. W. WARD, CHARLES
L. KNOX, et al., Respondents.
1. Abstracts of TitleAction Against AbstractersPleadingsReliance on Abstract. The
complaint against abstracters employed by plaintiff to examine and furnish an abstract of title of a lot, for
purpose of which plaintiff had contracted with Hancock, alleging that in reliance upon the pretended
abstract of title showing title in said Hancock, without incumbrance, and depending solely thereon,
plaintiffs were induced to and did purchase the said land from Hancock and pay him therefor, is sufficient
as against a general demurrer, without an allegation that the purchase depended on the abstract defendants
were employed to furnish, or that it in any way depended on what the abstract might disclose.
2. SameNature of Contract. A complaint against abstracters for furnishing a defective
abstract, alleging a hiring to furnish a full and complete abstract, is sufficient without an allegation that
the abstract was to be made from any particular date.
3. Pleadingsconclusion of Law. The allegation, in a complaint against abstracters for
furnishing a defective abstract, that plaintiffs were ousted and dispossessed of the land by due course of
law by N., is not objectionable on general demurrer, as stating a conclusion of law instead of facts.
4. Abstracts of TitleAction Against AbstractersPleadingExhausting Remedy Against
Grantor. The complaint against abstracters for negligently furnishing a defective abstract, by reason of
which plaintiffs lost the property bought by them, need not show an exhaustion of remedy against their
grantor, or his insolvency; the contrary state of facts being an affirmative defense.
5. Demand on Grantor for Return of Price. The allegations in the complaint against
abstracters for furnishing a defective abstract, in reliance on which they bought the property of Hancock
for $1,100, and lost the property because he had no title; that Hancock has refused and still refuses to pay
plaintiffs the $1,100, or any part thereof, impliedly shows a demand on Hancock for the return of the
money.
6. PleadingAllegation of Fact. The complaint against abstracters for furnishing a defective
abstract, alleging that in reliance thereon plaintiffs bought the land of Hancock and paid him $1,100
therefor, taking a deed without warranty or covenant; that Hancock did not have title, and they were ousted
by the owner; that Hancock has failed and refused, and still fails and refuses, to pay to plaintiffs the $1,100,
or any part thereof, sufficiently alleges as an ultimate fact, as against a general demurrer, that plaintiffs
have suffered loss of $1,100.
7. Abstracts of TitleAction Against AbstractersPleadingShowing in Abstract. The
complaint against abstracters for furnishing a defective title, alleging that they furnished one showing that
H. was the owner of the land without any incumbrances, is sufficient allegation that the abstract showed
that there were no incumbrances.
Action by A. E. Hershiser and others against B. W. Ward and others. From a judgment in
favor of defendants, plaintiffs appeal. Reversed and remanded.
Cooke & Ayres, for Appellants:
I. That the liability of an abstracter for negligently making an abstract of title, whereby a
purchaser is led into purchasing a worthless title, is secondary to a supposed remedy against
the purchaser's grantor, is, we believe, without authority of law or reason. Surely such a
decision is entirely without precedent. We believe we can speak authoritatively on this point,
for we have spared no pains in the search of a precedent on such point, and neither court nor
adverse counsel have cited one. The complaint affirmatively shows that the contract between
plaintiffs and defendants was an independent one with which Hancock had no connection
whatever, and to which he was not a party. So far as the complaint shows, he may never have
heard of it. The undertaking implied by law from engaging in the business of making
abstracts of title for compensation is that the abstracter possesses the requisite
knowledge and skill, and that he will use ordinary care in the performance of his duties."
of making abstracts of title for compensation is that the abstracter possesses the requisite
knowledge and skill, and that he will use ordinary care in the performance of his duties. (1
Cyc. 214, and cases cited in note 12.)
II. It appears from the complaint that the deed and instrument of conveyance received by
plaintiffs from Hancock contains the words grant, bargain and sell,' but does not contain
any other warranty or covenant whatsoever, and that plaintiffs have not, nor has either of
them, ever at any time received any other warranty or covenant from said Hancock, or at all,
relating to or concerning said lands or premises, or the title thereto. Whether or not, then, the
plaintiffs had any remedy against Hancock depends upon what covenants are implied from
the use of the words grant, bargain and sell. As near as we are able to understand the
decision of the lower court, the opinion of the learned judge thereof proceeded upon the
theory that the words grant, bargain and sell gave us a warranty of title sufficient to
constitute a cause of action against Hancock on covenants, and further that, even though we
had no covenants whatsoever, still Hancock would be bound to plaintiffs for money had and
received. We presume that the court considered that the common law would imply the
promise to repay. However, we are not entirely clear on this point and cannot say that we
exactly understood by just what reasoning we were supposed to have a remedy for money had
and received. But this is surely not the law. For, as one of the best texts on the subject puts it:
The rule is well settled that, in the absence of fraud, the purchaser of real property takes the
title at his own risk, and, if he has not taken the precaution to secure himself by covenants, he
has no remedy for his money, though he afterwards be evicted by a paramount title or the land
be burdened by incumbrances. (8 Am. & Eng. Ency. Law, 2d ed. 53, and cases cited in note
3.) At common law there was no implied covenants whatever, except such as arose out of the
word of feoffment, dedi, a word long since in disuse in deeds in this state, and we think pretty
much in this country, owing to the change of conditions upon the abolition of the feudal
system. The covenants expressed by the words "grant, bargain and sell" are therefore
purely statutory and, being in derogation of the common law, must be construed strictly.
the words grant, bargain and sell are therefore purely statutory and, being in derogation of
the common law, must be construed strictly.
III. Possibly the leading case on this subject in this country is the case of Douglass v.
Lewis, 131 U. S. 75, et seq. In that case (opinion by Chief Justice Fuller), at page 82, the court
says: At common law, in the transfer of estates of freehold by deed, a warranty was implied
from the word of feoffment, dedi, and from no other word, and from words of bargain and
sale merely no covenant was implied in any case. And on page 85 of the same opinion the
court says: If, it appears to us, however, the question arises not upon the covenants in a deed,
but upon the construction of a statute, which turns certain words of grant into express
covenants, the same rule of construction does not apply. In respect to deeds, the words are to
be taken most strongly against the party using them, while in respect to statutes, if in
derogation of the common law, as that under consideration is, they should be construed
strictly. And in the same opinion, at page 87, the court speaks approvingly of the warning
given by Chancellor Kent in his Commentaries: It may not be very inconvenient that those
granting words should imply a covenant against the secret acts of the grantor; but beyond that
point there is great danger of imposition upon the ignorant and the unwary, if any covenant be
implied, that is not stipulated in clear and precise terms. (4 Kent's Commentaries, 473, 474.)
IV. Surely neither in the statement of the evidentiary facts nor in the complaint can there
be found anything which comes within the protection of the covenants by our statute implied
from the words grant, bargain and sell, whether that statute be construed either strictly or
liberally. We deem it clear and settled beyond the question of a doubt that plaintiffs never had
any remedy against Hancock whatever. But, even if they had a remedy against Hancock,
defendants having unskillfully performed their contract, from which damages arose to
plaintiffs, they were prima facie liable, or, more accurately, prima facie plaintiffs were
damaged by the unskillful performance of defendants of their contract. If, in fact then,
plaintiff had been protected by covenant, so that upon further proof they were not
damaged, the burden of showing the same would have devolved upon defendants.
in fact then, plaintiff had been protected by covenant, so that upon further proof they were not
damaged, the burden of showing the same would have devolved upon defendants. Plaintiffs
in their complaint have surely made out at least a prima facie case, even if they have some
action against Hancock, and it would devolve upon defendants to allege and affirmatively
prove that they have some protection, by which in fact they are not damaged.
V. If the rule of law is that plaintiffs must exhaust a remedy against their grantor first, why
is it that none of the decided cases review that point and establish it? In all of the many
abstract cases, both those in which demurrers have been considered, and those where there is
no decision upon a demurrer, but where the complaint, so far as the decisions of the courts of
last resort show, were regarded as good and no demurrer interposedin all of those cases,
one will look in vain for any allegation that a remedy has been exhausted against the grantor
or that the grantor is insolvent. It may be that this reasoning is not strong, but, still, when the
only case in which the question has ever been raised in a court of last resort has decided the
point to be without merit, and all other cases are silent upon that point, it seems to us that it
should be regarded as the settled policy of the law. It is a simple matter, one that would be
likely to rise in the mind of an attorney and any court. And silence upon that point seems to
us to argue that in all the abstract cases it must have been regarded by counsel as not worth
raising and by the courts as not worth considering.
Curler & King, for Respondents:
I. The demurrer filed to said second amended complaint is upon the grounds that said
complaint does not state facts sufficient to constitute a cause of action in favor of the
plaintiffs and against the defendants, B. W. Ward and Charles L. Knox. In said second
amended complaint filed in this court on the 17th day of October, 1904, on page 2 and in
paragraph 3 of said complaint, the plaintiffs allege that on or about June 24, 1902, the
plaintiffs employed the defendants to make an abstract of a certain piece of land and premises
described in said complaint and in the same paragraph allege that prior to the date of
June 24, 1902, they had contracted with one W. H. Hancock for the purchase of said
described land, but do not allege that said purchase depended upon the abstract that was
to be afterwards furnished by said defendants, or that said purchase in any way depended
upon what said abstract might disclose.
described in said complaint and in the same paragraph allege that prior to the date of June 24,
1902, they had contracted with one W. H. Hancock for the purchase of said described land,
but do not allege that said purchase depended upon the abstract that was to be afterwards
furnished by said defendants, or that said purchase in any way depended upon what said
abstract might disclose. (Talpey v. Wright, 61 Ark. 275; Savings Bank v. Ward, 100 U. S.
195.)
II. That the defendants were to examine and furnish a true, accurate, full, and correct
abstract of the title to that certain lot described in said complaint. Said complaint does not
allege that said abstract was to be made from the time of the issuing of the patent by the
United States, nor any particular date, time, or conveyance. When the abstracter engages to
make an abstract from a certain date only, he is under no duty to inquire into the existence of
judgments or conveyances recorded prior to that time, and any abstract furnished can be a
true, accurate, full, and correct abstract from whatever date commenced. (Wakefield v.
Chowen, 26 Minn. 379; Am. & Eng. Ency. Law, vol. 1, p. 221.) In section 5 of page 3 of said
amended complaint the plaintiffs allege that at the time of the purchase of said described land
the Bank of Nevada was the owner in fee thereof and that the same appeared of record on the
public records of Washoe County, but they allege nothing to show that said mortgage was due
and paid prior to the furnishing of the abstract by the defendants, and plaintiffs simply assume
that said title was in the Bank of Nevada. (Turner v. White, 73 Cal. 299.) In paragraph 8 on
page 4 of said complaint plaintiffs allege that they were ousted and dispossessed of said land
and premises by due course of law by the Bank of Nevada, but they fail to show when or how
they were ousted and dispossessed of said land and premises by said Bank of Nevada; they do
not show when they went into possession, or that they ever had possession of said land and
premises; they do not show by what due course of law the Bank of Nevada ousted and
dispossessed the plaintiffs of said land and premises; they simply state a conclusion of law
and all the authorities hold that you must state facts, and from those facts the conclusions are
drawn.
are drawn. (Levinson v. Schwartz, 22 Cal. 229; Thomas v. Desmond, 63 Cal. 426.) They do
not show that the plaintiffs, on discovering the defect in the abstract, took proper measures to
avert the loss, and if they failed to do so they cannot hold the abstracters liable. (Am. & Eng.
Ency. Law, vol. 1, p. 221; Roberts v. Leon Co., 63 Iowa, 76.) The employer, after discovering
an error in the abstract, must use ordinary diligence to avert a loss and to inform the
abstracters of such error, in order that the latter may take measures to avert the consequences
of the mischief, and if, through failure to use these precautions, a loss occurs, the employer
cannot recover.
III. Nothing shows that there ever was a demand made of said Hancock for the return of
said $1,100, or any part of the same, and without a demand on said Hancock for the return of
said $1,100 the plaintiffs cannot say that said Hancock would refuse to return the same if a
demand was made; in other words, the plaintiffs have no cause of action against the
defendants until all lawful means for the recovery of said $1,100 from said Hancock have
failed. It must be shown first that said Hancock is insolvent, and nothing whatever can be
collected from him, before the defendants have become liable in damages to said plaintiff.
(Brown v. Sims, 72 Am. St. Rep. 310.)
IV. The plaintiffs claim that they were ousted and dispossessed of said land and premises
by due course of law. The plaintiffs allege that, from the defect in the title of the vendor, they
have been ousted and dispossessed of said land and premises by due course of law. Now, how
can they allege that they have been ousted and dispossessed of said land and premises,
without first showing when they went into possession of the same, if they ever did? All of
plaintiffs' authorities on this point refer to a deed of warranty, and we do not think it
applicable to this case. As the grantor does not covenant against all possible incumbrances, or
all interruptions of claim and ouster, it therefore becomes necessary to specify the title
paramount by reason of which the covenantee or his assigns have been ousted or disturbed in
the possession, bearing in mind that these plaintiffs never had possession. (Jennings v.
Kierman, 55 Pac. 443.)
Cooke & Ayres, for Appellants, in reply:
I. The first attack made upon the sufficiency of our complaint is the statement that the
complaint alleges that plaintiffs contracted with one W. H. Hancock for the purchase of said
described land, but does not allege that said purchase depended upon the abstract of title that
was to be afterwards furnished by said defendants, or that said purchase in any way depended
upon what said abstract might disclose. Upon this point we certainly differ with counsel, and
refer to the said second amended complaint where it is alleged for the purchase of which in
fee simple and without incumbrances, the plaintiff had heretofore contracted, etc. Counsel
assumes, without any precedent or authority whatever to support such an assumption, that this
is not a sufficient allegation that plaintiffs were to purchase if the title was found good upon
an abstract, and not to purchase if the title was not found good. We submit, however, that,
under the contract as stated in the language quoted, if Hancock could not give a fee simple
title free from incumbrance, then defendants were not bound to and would not under the
contract purchase the land in question. The language is almost identical with that of the case
of Morange v. Mix, 44 N. Y. 315, where the facts as stated by the court so far as relevant are:
At the trial it was proven by the plaintiff that he entered into a contract with one Lichenstein,
in August, 1857, to purchase certain lands situate in the City of Brooklyn, to be conveyed to
the plaintiff free of incumbrance, except a certain mortgage for $3,000, for the consideration
of $10,000 over and above the mortgage; that prior to receiving the deed and paying the
consideration the plaintiff made a requisition in writing, etc. The search was made and the
property purchased, and suit was brought and held proper upon an omission from the abstract
of certain assessments. Our allegation was drafted with that statement before us and was
modeled thereon, and we believe is practically identical in substance with it. Our complaint
contains every element that was found essential in the case above quoted from, with the
additional point that whereas in that case the land was to be conveyed free from all
incumbrances except a certain mortgage, while in our case the complaint alleges that it
was to be free from any incumbrances.
all incumbrances except a certain mortgage, while in our case the complaint alleges that it
was to be free from any incumbrances. We also refer to said complaint where it is alleged
that plaintiffs employed defendants to examine, and furnish to plaintiffs a true, accurate, full,
and correct abstract of the title to certain land. The object of an abstract of title is to enable
the purchaser, or his counsel, to pass readily upon the validity of the title in question. (1 Cyc.
213, and note 2.) In Baker v. Caldwell, 3 Minn. 94, the court quoted with approval a
definition from Burrill's Law Dictionary which states that an abstract of title is intended to
show the origin, course and incidents of the title, without the necessity of referring to the
deeds themselves. We also refer to the complaint where it is alleged by which pretended
abstract of title it appeared and was shown that the said W. H. Hancock was the owner of the
said land and premises in fee simple without any incumbrances; in reliance on said pretended
abstract of title, and depending solely thereon, plaintiffs were induced to and did, on or about
the 28th day of June, 1902, purchase said land and premises from said Hancock. We can
hardly conceive how it could more plainly be made to appear that plaintiffs desired to
purchase the land if Hancock's title was good, and that they would not purchase if it were
found not to be good, or to be incumbered; that they employed defendants to furnish the
abstract in order that they might ascertain what was the condition of the title, and would
thereupon decide whether or not to purchase; that the object of the abstract was that they
might determine whether or not they would purchase; that they did purchase in reliance upon
the abstract only.
II. Counsel again contends that our complaint does not show that the abstract to be
furnished was to be from the Government of the United States down, but was to be from a
certain date only. We agree with counsel that when the abstracter engages to make an
abstract from a certain date only, he is under no duty to inquire into anything prior to that
date. But there is nothing upon which to base the assertion that such was the case. The
allegation of the complaint is that defendants were to furnish a "true, accurate, full, and
correct abstract of the title."
plaint is that defendants were to furnish a true, accurate, full, and correct abstract of the
title. What, then, is an abstract of title? An abstract of title is a memorandum or concise
statement of the conveyances and incumbrances which appear on the public records affecting
the title to real property. The object of the abstract of title is to enable the purchaser, or his
counsel, to pass readily upon the validity of the title in question. (1 Cyc. 213, notes 1, 2, 3.)
III. Counsel assumes that we should have alleged that the abstract was to be from the
government down, or that the court will infer that it was from some particular date only,
subsequent to the defect. Had the word full been omitted from the allegation of the kind of
abstract that was ordered and furnished, still the allegation would have been sufficient under
the authorities to have compelled defendant to furnish an abstract from the source of title to
date. But we have made our allegation stronger by the use of the word full abstract. This
can leave no doubt of the kind of an abstract that was ordered and the kind the one furnished
was represented to be. But why should we say from the United States Government down?
What presumption is there that all titles must originate in the United States Government? In
many of the eastern states the land all belonged to individuals before the adoption of the
constitution. In some of the western states titles are traced back to the Mexican government,
and down to date through the grants of that government. When one undertakes to make a true
and full abstract of title, he necessarily engages to trace the title to its source, whether that
source be in the Government of the United States or not. But the point is made the more
ridiculous when it is considered that the pretended abstract of title that actually was furnished
started with the United States Government, and through a long line of transfers showed the
correct course of title, and then, almost at the end of the abstract, omitted the instruments by
which, had the abstract been correctly made, Hancock's defect of title would have been
disclosed. We consider the point under discussion a mere quibble unworthy of the
consideration of this court and an encroachment upon its time, yet, as the same has been
raised and argued in the brief, we deem it expedient to reply thereto.
this court and an encroachment upon its time, yet, as the same has been raised and argued in
the brief, we deem it expedient to reply thereto.
IV. Respondents object to the manner of our pleading the negligence of plaintiffs, as
being conclusions of law. Yet the form we have used has come direct from decided cases.
That defendants were guilty of negligence and want of due care in examining into, and in the
investigation of, the title of said land, is copied verbatim from Gilman v. Hovey, 26 Mo.
280, and which case is relied upon by 1 Cyc. 218, note 43, as authority for the text. A
general allegation of defendant's want of care in his investigations is sufficient. They also
object to our allegation that by the exercise of proper diligence and skill, they could have
discovered, etc., as a conclusion. In the case of Building Association v. Dickens, 64 S. W., it
was held error to sustain demurrer to complaint alleging that by ordinary diligence he might
have known of the same. A number of suits against attorneys for negligence in which the
allegations are quite as general as ours, but which have been held good by the courts, are cited
in 3 Ency. Pl. & Pr. 107, note 3. We do not consider it necessary to quote these. But the fact
that the complaint contains conclusions of law, rather than allegations of fact, is not a matter
that can be reached by the general demurrer. A special demurrer is required to reach that.
On the 1st day of May, 1904, the appellants here, as plaintiffs in the court below, filed
therein their second amended complaint; the matters alleged therein and pertinent to this
appeal are stated as follows: That on or about the 24th day of June, 1902, the plaintiffs
employed said defendants, as such copartners, as aforesaid, for fees and reward to them by
plaintiffs paid, to examine and furnish to plaintiffs a true, accurate, full, and correct abstract
of the title to that certain lot, piece, or parcel of land situate, lying, and being in the then
Town [now City] of Reno, in the County of Washoe, and State of Nevada, bounded and
particularly described as follows, to wit: That parcel of land situate in Conner's Addition to
said Reno, bounded on the west by Ralston Street, on the south by Oak Street, on the east
by Nevada Street, and on the north by the section line between Sections 2 and 11, in
Township 19 north, Range 19 east, M. D. B. and M., for the purchase of which, in fee
simple, and without incumbrances, the plaintiffs had theretofore contracted with one W.
H. Hancock, who claimed to be the owner thereof.
described as follows, to wit: That parcel of land situate in Conner's Addition to said Reno,
bounded on the west by Ralston Street, on the south by Oak Street, on the east by Nevada
Street, and on the north by the section line between Sections 2 and 11, in Township 19 north,
Range 19 east, M. D. B. and M., for the purchase of which, in fee simple, and without
incumbrances, the plaintiffs had theretofore contracted with one W. H. Hancock, who
claimed to be the owner thereof. (4) That defendants, in the performance of the duties or such
employment, did thereafter, and on or about the 25th day of June, 1902, furnish to plaintiffs a
pretended abstract of title to the said land, and did report and represent to plaintiffs that the
same was a full, true, accurate and correct abstract of title to said land; by which pretended
abstract of title, it appeared and was shown that the said W. H. Hancock was the owner of
said land and premises in fee simple without any incumbrances; in reliance on said pretended
abstract of title, and depending solely thereon, plaintiffs were induced to and did, on or about
the 28th day of June, 1902, purchase said land and premises from said Hancock, and did pay
him therefor the sum of $1,100, in lawful money of the United States, and, as evidence
thereof, plaintiffs did then and there take and receive from said Hancock a certain deed or
instrument in writing, executed by said Hancock, and duly acknowledged, purporting to
convey from said Hancock to plaintiffs the said land and premises in fee; that said deed or
instrument in writing contains the words grant, bargain, and sell,' but does not contain any
other warranty or covenant whatsoever, and that plaintiffs have not, nor has either of them,
ever, at any time, received any other warranty or covenant from said Hancock, or at all,
relating to or concerning said lands or premises or the title thereto. (5) That said Hancock was
not the owner of said lands or premises, or of any interest therein whatever except a mere
equitable interest as mortgagee under and by virtue of a certain indenture of mortgage, and
that the Bank of Nevada, a corporation, was the owner in fee thereof, and that the same
appeared of record on the public records of said Washoe County, of which plaintiffs were
ignorant, and which defendants could, by the exercise of proper diligence and skill, have
discovered and which they failed to discover by omitting to exercise due care and skill;
and defendants were guilty of neglect and want of due care in examining into, and in the
investigation of, the title of said land.
tiffs were ignorant, and which defendants could, by the exercise of proper diligence and skill,
have discovered and which they failed to discover by omitting to exercise due care and skill;
and defendants were guilty of neglect and want of due care in examining into, and in the
investigation of, the title of said land. (6) That the said mortgage by and through which said
Hancock held said equitable interest, as aforesaid, was given to secure, and did secure, the
payment of a certain promissory note, dated and executed November 1, 1897, and, by its
terms, payable on demand. That the first plaintiffs, or either of them, discovered or learned
that said Hancock was not the owner in fee of said lands and premises, but was the holder
only of said equitable interest, as aforesaid, was on or about the ___ day of February, 1904,
and more than six years after the date and execution of said promissory note, and after any
action to foreclose the said mortgage or collect the said note was barred by section 3718 of
the Compiled Laws of Nevada, and when the said equitable interest which said Hancock held
in and to said lands and premises, as aforesaid, had, without the fault of these plaintiffs, or
either of them, become of no value whatever. (7) That said Hancock has failed and refused,
and still does fail and refuse, to pay to plaintiffs, and said plaintiffs have not received from
said Hancock, or at all, the said sum of $1,100, or any part thereof. (8) That by reason of the
said Hancock's want of title, and the fact that plaintiffs took no title by said deed from
Hancock, and the fact that said Bank of Nevada was the owner of said lands and premises, as
aforesaid, the plaintiffs were ousted and dispossessed of said land and premises by due course
of law. Wherefore plaintiffs pray judgment against said defendants, jointly and severally, in
the sum of $1,100, together with interest thereon at the legal rate from the 28th day of June,
1902, and for costs and disbursements of suit.
To this complaint defendants filed a general demurrer, the court sustained the demurrer,
and, on plaintiffs declining to amend, gave judgment for the defendants. From said judgment,
this appeal is taken.
To sustain the judgment respondent's counsel make, if we correctly gather them from
their brief, many points of objection to the complaint.
we correctly gather them from their brief, many points of objection to the complaint.
1. That the plaintiffs do not allege that said purchase depended upon the abstract that was
to be afterwards furnished to them by said defendants, or that said purchase in any way
depended upon what said abstract might disclose. Without going into an elaborate analysis
of the allegation on this point, we deem it sufficient to meet the assault of a general demurrer;
and whether it was sufficient to repel a special demurrer on the ground stated is not before us
for determination.
2. Counsel's second point is that: Said complaint does not allege that said abstract was to
be made from the time of the issuing of the patent by the United States, nor from any
particular date, time, or conveyance. We think this allegation is sufficient. It required
defendants to furnish a full and complete abstract. We can see no reason why respondents
should arbitrarily take any particular date, and say that, prior to that date, they were not
required to make search and report of the title.
3. As a third point counsel say: In section 5 of page 3 of said amended complaint, the
plaintiffs allege that, at the time of the purchase of said described land the Bank of Nevada
was the owner in fee thereof, and that the same appeared of record on the public records of
Washoe County; but they allege nothing to show that said mortgage was not due and paid
prior to the furnishing of the abstract by defendants, and plaintiffs simply assume that said
title was in the Bank of Nevada. On the contrary, the allegation is an assertion, not an
assumption, that the Bank of Nevada was the owner in fee, etc.
4. Under the fourth point counsel say plaintiffs allege that they were ousted and
dispossessed of said land and premises by due course of law, by the Bank of Nevada, but they
fail to show when or how they were ousted and dispossessed of said land and premises by
said Bank of Nevada. They do not show when they went into possession or that they ever had
possession of said land and premises. They do not show by what due course of law the Bank
of Nevada ousted and dispossessed the plaintiffs of said land and premises.
ousted and dispossessed the plaintiffs of said land and premises. They simply state a
conclusion of law, and all the authorities hold that you must state facts, and from those facts
the conclusions are drawn. This allegation, too, we think, good under the general demurrer.
5. Fifth, counsel claim that the complaint does not show that the plaintiffs, on
discovering the defect in the abstract, took proper measures to avert the loss; and, if they fail
to do so, cannot hold the abstracters liable. This claim is, we think, untenable. Plaintiffs
were not required to show this. If the facts were otherwise, it was a matter of affirmative
defense to be set up by defendants.
6. The sixth point states that there was nothing to show that there ever was a demand
made of said Hancock for the return of said, $1,100, or any part of the same, and, without a
demand on said Hancock for the return of said $1,100, the plaintiffs cannot say that said
Hancock would refuse to return the same if a demand was made, in other words, the plaintiffs
have no cause of action against the defendants until all lawful means for the recovery of said
$1,100 from said Hancock have failed. It must be shown, first, that said Hancock is insolvent,
and nothing whatever can be collected from him, before the defendants have become liable in
damages to said plaintiff. We think there was. It said Hancock has * * * refused * * * and
still does * * * refuse to pay plaintiffs * * * the sum of $1,100, or any part thereof. Refusal
to do a thing implies a demand made to do it. Certainly this would be so on general demurrer.
7. The seventh point is that there is no allegation that the plaintiffs have suffered loss of
$1,100, or any sum; but only the statement of a conclusion of law that plaintiffs have so
suffered. On the contrary, we think an inspection of the allegation in this respect shows
allegation of an ultimate fact, good as against general demurrer at least.
8. Counsel say there was no report in the abstract of title furnished by respondents that the
land in question was free from all incumbrances; but only that it was from some
incumbrances. Their contention is expressed as follows: The attorneys for the plaintiff in
their said brief on the demurrer, compare the Morange v. Mix case, in 44 N. Y. 315, with
this case, and claim that this case is much stronger than the New York case; and we call
the court's attention to line 4 on page 2 of their brief, where this language is found:
'While, in our case, the complaint alleges that it was to be free from any incumbrance.'
Webster defined the word 'any' as one out of many, indefinite. 'Nor knoweth any man the
Father, save the Son.' {Matt.
demurrer, compare the Morange v. Mix case, in 44 N. Y. 315, with this case, and claim that
this case is much stronger than the New York case; and we call the court's attention to line 4
on page 2 of their brief, where this language is found: While, in our case, the complaint
alleges that it was to be free from any incumbrance.' Webster defined the word any' as one
out of many, indefinite. Nor knoweth any man the Father, save the Son.' (Matt. xi, 27.) It is
also defined as some,' an indefinite number of quantity, as Are there any witnesses present?'
Now, the word any' incumbrance does not mean all incumbrances, as the word any,' in its
largest meaning, simply means some,' and does not mean from all incumbrances.
The language in the allegation (allegation 4) is: That defendants, in the performance of
the duties of such employment, did thereafter, and on or about the 25th day of June, 1902,
furnish to plaintiffs a pretended abstract of title to the said land, and did report and represent
to plaintiffs that the same was a full, true, accurate, and correct abstract of the title to said
land, by which pretended abstract of title it appeared and was shown that the said W. H.
Hancock was the owner of said land and premises in fee simple without any incumbrances; in
reliance on said pretended abstract of title, and depending solely thereon, plaintiffs were
induced to and did, on or about the 28th day of June, 1902, purchase said land and premises
from said Hancock and did pay him therefor the sum of $1,100 in lawful money of the United
States. The allegation is that Hancock was the owner of said land and premises in fee
simple without any incumbrances. The phrase without any incumbrances means just what
it says. It means there were no incumbrances. Indeed, it means there was not a single
incumbrance. It could not possibly mean there were some incumbrances, or even there was a
single incumbrance. So to hold would be a strange perversion of language.
A few other points are made in the brief of respondents; but we think they are not of such
moment as to require mention here, except the following:
9. Ninth point, if we correctly apprehend it, is this: That in case of negligence in the
abstracter's work, and consequent loss therefrom, the damaged employer cannot sue the
negligent abstracter until he has exhausted all remedy against the grantor of the title
involved or shown that such grantor is insolvent.
That in case of negligence in the abstracter's work, and consequent loss therefrom, the
damaged employer cannot sue the negligent abstracter until he has exhausted all remedy
against the grantor of the title involved or shown that such grantor is insolvent. And, further,
that this showing of exhaustion of remedy against grantor or his insolvency is an affirmative
showing on the part of the plaintiff, and that, without such showing, his complaint would be
bad on general demurrer. Is this the law? We think it is not necessary that such affirmative
showing be made in the complaint, and it is unnecessary now to determine whether the same
would constitute a defense if pleaded by answer. It is urged in the brief that Hancock may
have paid the damages of $1,100 to plaintiff. It is alleged in the complaint, however, that
Hancock has not so paid. It is also urged that Hancock may be able to pay it on being sued.
Defendants' obligation was a direct contract to furnish plaintiff a full, complete, and correct
abstract of title to the land in question, such as would protect the plaintiffs from incurring the
loss that they have alleged. If plaintiffs had it in their power to protect themselves from such
loss by any course of action that they could be reasonably and legally required to take, that is
an affirmative defense that respondents should set up and plead to defeat plaintiffs' action.
The case of Morange v. Mix, 44 N. Y. 315, throws considerable light on this question.
We think the judgment appealed from in this case is erroneous. Said judgment is reversed,
and the case is remanded to the trial court, for further proceedings in accordance with this
opinion.
____________
29 Nev. 247, 247 (1907)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1907.
____________
[No. 1708.]
THE STATE OF NEVADA, ex rel. THE EQUITABLE GOLD MINING COMPANY, a
Corporation, Relator, v. M. A. MURPHY, District Judge of the First Judicial District of
the State of Nevada, Storey County, Respondent.
1. New TrialProceedings to ProcureNotice of IntentionTime for ServiceStatement.
Under the practice act, 197 (Comp. Laws, 3292), providing that a party intending to move for a new trial
shall give notice of the same, when the action has been tried by a jury, within five days after the rendition
of the verdict, and when tried by the court, within ten days after receiving written notice of the decision of
the judge, and that he shall prepare and file his statement within five days after giving such notice, where a
suit for injunction is tried by the court with a jury, a party may give notice of intention to move for a new
trial within ten days after receiving written notice of the decision of the judge, and may prepare and file his
statement within five days after giving his notice.
2. SameWaiver of Rights. The time within which a party may serve notice of intention to
apply for a new trial and prepare and file his statement in a suit for injunction tried by the court with a
jury is not curtailed by the application of the attorney at the time of the rendition of the verdict, without
knowing that it had been approved by the court, for an order allowing until thirty days after the receipt of
the transcript of the evidence from the reporter in which to file a statement on motion for new trial.
3. AppealRecordStatement of Facts. A statement on appeal from orders denying motions
to strike out and amend the judgment should not contain the depositions and testimony introduced on the
trial.
4. SameAppeal from Special Order. Under Comp. Laws, 3860, providing that during the
progress of a cause a party may take his bill of exceptions to the admission or exclusion of testimony or
to the rulings of the judge on points of law, and section 330 of the practice act (Comp. Laws, 3425),
authorizing an appeal from any special order made after final judgment, and section 332 (Comp. Laws,
3427), providing for the preparation and filing of a statement of the case on appeal from a judgment or
order, orders denying motions to strike out and amend a judgment may be presented by statement on
appeal, instead of by a bill of exceptions.
Application by the State of Nevada, on relation of the Equitable Gold Mining Company, a
corporation, for a writ of mandate to M. A. Murphy, District Judge of the First Judicial
District of the State of Nevada, Storey County. Granted.
Statement of Facts.
T. Berry and others brought an action in the District Court of Storey County against the
Equitable Gold Mining Company, the relator here, for the waters of a certain spring, and
asked in their complaint that the company and its agents be forever enjoined from interfering
with the free use and enjoyment by them of these waters, and for costs. No damages were
demanded, and the case was purely one in equity. The trial was held before the Honorable M.
A. Murphy, the respondent, as district judge, and a jury, which on September 20, 1905, found
a general verdict in favor of the plaintiffs, and special issues, among which two stated that ten
gallons for domestic and ten for mining purposes had been appropriated or used per day.
Upon the rendition of the verdict, counsel for the defendant asked for ninety days, and the
court made an order allowing him thirty days after he should receive a transcript of the
testimony from the reporter in which to serve and file a statement on motion for new trial. On
September 21, 1905, the next day after the verdict was found, the clerk, upon the application
of one of the attorneys for the plaintiffs, entered a judgment reciting the trial, the impaneling
of the jury, the introduction of oral and documentary evidence, and the rendition of the
verdict, and that wherefore, by virtue of the law and by reason of the premises, it was
ordered, adjudged, and decreed that the plaintiffs were the owners of the spring, and that
the defendant, the Equitable Gold Mining Company, and its agents, were perpetually
enjoined from in any manner interfering with the free use and enjoyment by plaintiffs of
the spring or water flowing therefrom.
of the spring, and that the defendant, the Equitable Gold Mining Company, and its agents,
were perpetually enjoined from in any manner interfering with the free use and enjoyment by
plaintiffs of the spring or water flowing therefrom. The judgment was not signed by the
judge, and contained no reference to any finding or order made by him. On February 9, 1906,
the defendant's attorneys received the court reporter's transcript of the testimony given on the
trial, and on April 11th they filed notice of a motion to strike out and set aside the judgment
entered by the clerk on several grounds, among them stating that the judgment was not
entered according to the practice of the court and was void when entered by the clerk; that no
order had been made directing its entry; that the court had never filed any findings, nor
adopted the verdict and special issues found by the jury. With permission obtained from the
court defendant filed on August 31st an amended motion to strike out the judgment. After
hearing had, the court on August 27, 1906, concluded that, under the practice act, it was the
duty of the clerk to enter the judgment within twenty-four hours after the rendition of the
verdict, and denied the motion to strike it out, and directed the entry nunc pro tunc as of date
of September 20, 1905, of an order which he had made that day upon the rendition of the
verdict of the jury approving it and directing the clerk to enter judgment in accordance
therewith. Owing to noise in the court room this order had not been heard nor entered by the
clerk, nor heard by any of the attorneys at the time it was made at the close of the trial, and it
was unknown to them and did not appear in the minutes until again announced by the judge
in August. On August 27th, and after the making of this order, a motion asking to have the
judgment modified to conform to the special findings of the jury as approved by the court was
denied. The order of the court directing the entry of the judgment and the verdict and the
issues found by the jury do not direct or mention the injunction inserted in the judgment by
the clerk. No notice of the entry of the judgment or of the decision of the court or of the
adoption of the verdict was served upon defendant or its attorney.
On August 31, 1906, more than thirty days, and more than six months, after the receipt of the
reporter's notes defendant filed a transcript labeled Statement on Motion for New Trial and
Appeal, which purports to contain the testimony of the witnesses, the depositions and
proceedings had on the trial in September, 1905, and these are also embraced or largely
duplicated in another bulky document indorsed Statement on Appeal, filed September 8,
1906, and containing the minutes, entries, and records, and specifications of error relating to
the denial by respondent of the motions to strike out and modify the judgment entered by the
clerk. Plaintiffs filed motions to strike out and proposed amendments. Respondent has
refused to settle both these statements, the former on the ground that it was not filed within
thirty days after the defendant's attorneys received the transcript from the reporter, the time
for filing it allowed by the order, and that, therefore, the court had lost jurisdiction, and the
latter, it seems, because it contains the evidence given and proceedings had on the trial, and
he considered it a statement on motion for a new trial instead of on appeal from his orders
refusing to strike out or modify the judgment entered by the clerk, although defendant's
counsel contended in court that it was a statement on appeal from these orders. Respondent is,
and has been, willing to settle a bill of exceptions pertaining to these orders, and as he refuses
to settle the statement on appeal which relates to them, at least partly because it contains the
evidence given on the trial, it is not clear whether he deems a bill of exceptions necessary as
distinguished from a statement on appeal.
F. M. Huffaker and F. P. Langan, for Respondent.
Mack & Shoup, for Relator:
I. In an action tried by the court the clerk must enter judgment in accordance with the
direction of the court, and has no authority to insert in the judgment anything not so directed.
(Card v. Meincke, 24 N. Y. Supp. 375; Ramaley et al. v. Ramaley et ux., 72 N. W. 694.)
Where a case is heard by a court or referee, the judgment entered by the clerk of the court
must be in accordance with the conclusions of law and the order for judgment.
the court must be in accordance with the conclusions of law and the order for judgment. He
has no authority to include anything in the judgment which is not authorized by such
conclusions and order, even though the findings of fact would have justified or required
different conclusions of law. (Ramaley v. Ramaley, 72 N. W. 694.)
II. Mere clerical errors in the entry of judgments may be corrected upon notice and
motion, and such corrections do not come within the statutes or rules of court declaring that
judgments cannot be corrected or modified after the time specified in such statute or rule.
(Birmingham v. Leonhardt, 43 Pac. 1896; Nell v. Dayton, 49 N. W. 981; McClure v. Bruck,
45 N. W. 428; Swain v. Naglee, 19 Cal. 127; Roussett v. Boyle, 45 Cal. 64; Dreyfus v.
Tompkins, 67 Cal. 339.) A party obtaining the entry of a judgment through the misprision of
the clerk, when in fact the same was never so pronounced or rendered, cannot, while
admitting the facts of the mistake, retain its fruits. (Roussett v. Boyle, 45 Cal. 64.)
III. In the case at bar the court never signed or ordered an injunction against the defendant
restraining the defendant from interfering or using the waters of the spring in question. There
were not even any findings or evidence to justify such a judgment, and the clerk had
absolutely no authority to enter such a judgment and injunction upon his own motion. An
injunction is purely equitable relief, which the court alone can grant, and then only upon facts
and findings sufficient to warrant the granting of the same. There is absolutely no authority
for a clerk to grant an injunction under any circumstances, and it certainly cannot be
contended that he could grant an injunction upon his own motion, or upon application of an
attorney in the action, and insert the same in the judgment.
IV. The court having adopted the special findings of the jury, the same must control the
judgment. Such special findings have expressly found that the amount of water taken and
placed to a beneficial use by said plaintiffs amounted to twenty gallons per day, and no more,
any judgment giving plaintiffs any greater amount of water would be contrary to such special
findings and could not be sustained.
By the Court, Talbot, J. (after stating the facts):
The questions presented are whether, under our practice act, in an equity case tried before
the court with a jury, a party is required to file his notice and statement on motion for new
trial within five days after the rendition of the verdict as in ordinary jury cases, or has he for
this purpose until ten days after he receives written notice of the decision of the judge, as in
cases tried before the court without a jury, and, if so, was this time shortened by reason of the
fact that, upon the rendition of the verdict and findings by the jury, and on the application of
the defendant's attorney, who was unaware that the court had approved them, or had directed
the clerk to enter judgment, the court made an order giving thirty days after the receipt of the
reporter's transcript of the testimony in which to serve and file statement on motion for new
trial? Also, is a statement on appeal from an order denying a motion to strike out or modify a
judgment previously entered by the clerk, when such statement is filed within twenty days
after the making of such order, allowable and subject to settlement although improperly
containing the evidence and proceedings of the trial not germane to the exceptions and
specifications of error taken against such order?
Section 197 of the practice act (Comp. Laws, 3292) provides that the party intending to
move for a new trial shall give notice of the same, when the action has been tried by a jury,
within five days after the rendition of the verdict, and when tried by the court, within ten days
after receiving written notice of the decision of the judge, and that he shall prepare and file
his statement within five days after giving such notice. In construing this language we must
not forget the principles which govern and distinguish between law and equitable actions. It
seems from the opinion of the respondent that he considered the case as one tried by a jury,
and that defendant had only five days provided by this statute, and thirty days after the receipt
of the transcript from the reporter, allowed by the order of the court, in which to file the
statement on motion for new trial. If this position were correct, the time had expired, and the
court had lost jurisdiction before this statement was filed as he held.
diction before this statement was filed as he held. But, the case being an equitable one, the
trial was only nominally before a jury, and, for all practical and effective purposes, was
before the court.
The verdict of the jury was only advisory and without force until adopted by the judge. He
was at liberty, as in other equity cases, to approve it, or to make findings or enter judgment
contrary to what the jury had found, if he deemed the same more appropriate. The case was
one for the court, and, notwithstanding the verdict, there was nothing against the defendant
demanding any notice or statement on motion for new trial, and the finding of any would
have been premature, until the judge, acting as a chancellor, had rendered his decision. If it be
conceded that he did this to the extent of the verdict and special issues by adopting them and
ordinary judgment in accordance therewith at the time of their rendition, the case is not
different in its nature and the practice ought not be different than it would be if he had not
adopted them for months after, or had rejected them and made different findings. Neither the
judge nor the jury have yet made any findings or order directing the perpetual injunction
placed in the judgment by the clerk. We conclude that, in this case, and in all purely equitable
ones, the statute allows the defeated party until ten days after receipt of written notice of the
decision of the judge in which to give notice of his intention to move for a new trial, and five
days after the giving of this notice in which to file and serve his statement on motion or new
trial, as heretofore held by this court. (Thompson v. Crane, 25 Nev. 119, 58 Pac. 53; Duffy v.
Moran, 12 Nev. 98; Hayne on New Trial and Appeal, p. 75.)
As said by Chief Justice Murphy in South End M. Co. v. Tinney, 22 Nev. 71, 35 Pac. 108:
It frequently becomes the duty of the court, in giving effect to statutes, to restrain, enlarge, or
qualify the ordinary and literal meaning of the words used.
Nor do we think that the time to which defendant was entitled by the statute was curtailed
or waived by the fact that the attorney, at the time of the rendition of the verdict and without
knowing that it had been approved by the court, applied for and obtained an order allowing
until thirty days after receipt of the transcript of the evidence from the reporter in which
to file a statement on motion for new trial.
applied for and obtained an order allowing until thirty days after receipt of the transcript of
the evidence from the reporter in which to file a statement on motion for new trial.
The same section provides that the court or judge may enlarge, but not that he may
shorten, the time. When counsel obtained the order, and until after the period allowed by it
for filing the statement had expired, he not only had not been served with written notice of the
rendition of any decision by the judge, but was unaware that the court had approved the
verdict, or ordered judgment entered by the clerk, or rendered any decision which is required
or is of force in an equity case, and against which a statement on motion for a new trial could
be properly directed. Evidently the purpose of obtaining the order of the court was to extend
and not to curtail the time allowed by statute. To say otherwise would be equivalent to
holding that the defendant's time for filing the statement expired before it was aware that the
time for filing one had arrived. We see no more element of waiver in applying for the order
under the circumstances than there would be if the case had been tried without a jury and
taken under advisement by the court and upon its submission the same order had been applied
for and obtained. If the securing of such an order were held to be a waiver of further time, and
the court had taken the case under consideration and not rendered a decision until more than
thirty days after defendant received the transcript from the reporter, the time for filing the
statement on motion for new trial would have expired before it arrived. Not knowing when
notice of the rendition of the decision would be served or whether this would be more than
ten days before the transcript of the evidence would be obtained from the reporter, the
securing of an order allowing thirty days after the receipt of the transcript ought not to be
deemed a waiver when defendant was unaware that the judge had adopted the verdict or
rendered his decision. If defendant's attorney, who was present in court, had known at the
time that the court adopted the verdict and ordered judgment, nevertheless it would have been
necessary to have served him with written notice of the decision of the court as the statute
requires, unless asking for the order with such knowledge would be a waiver, and
regarding this we express no opinion, for it is not denied that he was unaware that the
court approved the verdict or ordered judgment.
as the statute requires, unless asking for the order with such knowledge would be a waiver,
and regarding this we express no opinion, for it is not denied that he was unaware that the
court approved the verdict or ordered judgment. In Keane v. Murphy, 19 Nev. 96, 6 Pac. 840,
the attorney for the losing party was present in court, heard the decision rendered, and
requested one of the plaintiff's counsel to add no more costs in entering judgment than he
could help, but it was held that he did not thereby waive service of written notice of the
decision. Nevertheless this notice may be waived by filing a notice of intention or statement
on motion for new trial and in other ways. But decisions were cited in this case to sustain the
statement that the legal presumption of a waiver of any right by a litigant will not be drawn,
except in a clear case, and especially not, when to allow such presumption would deprive a
party of his day in court.
The statement on appeal filed September 8, 1906, and within twenty days after the denial
of the motions to strike out and amend the judgment, but nearly one year after its entry by the
clerk, improperly contains the depositions and testimony introduced on the trial and which
belong to a statement on motion for new trial, and, as regards any exceptions made on the
trial, the statement on appeal was taken too late. But this is not so in regard to that part of it
pertaining to the orders of the court denying the motions to strike out and to modify the
judgment entered by the clerk, and to the record and matters relating to these orders and
motions, such as the verdict, special findings, orders of the court, entry of the judgment by the
clerk, and minutes relating to these. They could be properly presented by statement on appeal
instead of by bill of exceptions, and the time for such presentation had not expired. The
incumbering of this statement with the evidence given on the trial, of which it was mostly
composed and which ought to have been confined to the statement on motion for new trial,
may have caused the respondent to regard it as being intended for the latter statement. The
insertion of such useless matter is condemned. It serves no good purpose, but makes
unnecessary expense for litigants and renders the real points involved more obscure and
difficult to comprehend.
more obscure and difficult to comprehend. This is not the first time we have taken occasion to
express our disapproval of the practice, too common, of loading statements with a mass of
material which does not pertain to the exceptions taken or the questions controlling the case
on appeal, and which only tend to befog the real issues and burden this court, if not the trial
judge, with the labor of garnering a little wheat from much chaff. The depositions and
evidence introduced on the trial and other irrelevant matters should be eliminated, and those
properly pertaining to the orders denying the motions to strike out and modify the judgment
should be allowed on the settlement of the statement on appeal.
Section 4 of the act to regulate appeals, approved March 11, 1865, found at section 3860
of the Compiled Laws, directs that during the progress of a cause a party may take his bill of
exceptions to the admission or exclusion of testimony or to the rulings of the judge on points
of law, and it shall not be necessary to embody in such bill anything more than sufficient facts
to show the point and pertinency of the exceptions taken. The practice act was passed four
years later, and the filing and settlement of the statement on appeal from the orders denying
the motions to strike out and to amend the judgment as entered by the clerk are authorized by
section 330 (Comp. Laws, 3425), which provides for an appeal from any special order made
after the final judgment, and by section 332 (Comp. Laws, 3427), which provides: When
the party who has the right to appeal wishes a statement of the case to be annexed to the
record of the judgment or order, he shall, within twenty days after the entry of such judgment
or order, prepare such statement, which shall state specifically the particular errors or grounds
upon which he intends to rely on the appeal, and shall contain so much of the evidence as
may be necessary to explain the particular errors or grounds specified, and no more, and shall
file the same with the clerk, and serve a copy thereof upon the adverse party. The respondent
may, within five days thereafter, prepare and file amendments to the statement, and shall
serve a copy thereof on the appellant; the statement and amendments shall be presented to
the judge or referee who tried or heard the case, upon notice of two days to the
respondent, and a true statement shall thereupon be settled by such judge or referee."
statement and amendments shall be presented to the judge or referee who tried or heard the
case, upon notice of two days to the respondent, and a true statement shall thereupon be
settled by such judge or referee.
It is ordered that a writ of mandate issue directing the respondent to settle the proposed
statement filed on August 31, 1906, and indorsed Statement on Motion for New Trial and
Appeal, and so much of the proposed statement filed September 8, 1906, and indorsed
Statement on Appeal, as pertains to the orders overruling the motions to strike out and
modify the judgment.
Fitzgerald, C. J., absent.
____________
29 Nev. 257, 257 (1907) Gulling v. Washoe County Bank
[No. 1672.]
ROSAN GULLING, Executrix, and CHARLES GULLING, Executor of the Estate of Martin
Gulling, Deceased, Respondents, v. THE WASHOE COUNTY BANK, a Corporation,
Appellant.
1. JudgmentConclusivenessPersons Included and AffectedCodefendants. In an action
to foreclose a trust deed, in addition to the owner of the property, two parties were made defendants under
the allegation that they claimed some interest in the property subject to the trust deed. Both these parties
answered. The answer of the second party answering was not served on the first one; neither did it mention
him in the title of the action, nor in specific terms set up a cross-complaint against him, although the body
of the answer was to that effect, and in each answer it was set out that defendant appeared in response to
the summons, and in answer to the summons and complaint of the plaintiff, and the first party did not
demur or plead to the answer of the second party. Held, that, as these defendants at the trial actually
litigated between themselves the issues which the decree in the case purports to determine, the decree is
conclusive as between them.
2. EvidenceParol EvidenceIssues Decided. Where pleadings on their face and the
judgment roll do not show the issue tried and determined between parties, it may be shown by extrinsic
evidence.
3. ConclusivenessNature and Requisites. Where issues between parties have once been
tried and finally determined, the same questions cannot again be litigated by such parties or their privies.
4. Evidence of JudgmentIssues. Evidence considered, and held that the matters sought to be
litigated were tried and determined in a former action in which the parties were codefendants.
Talbot, J., dissenting.
On rehearing. Reversed and remanded. [For original opinion, see 28 Nev. 450.]
Cheney, Massey & Price, for Appellant:
I. No question of constructive service or of the default is presented. The court had
jurisdiction of the subject-matter, to wit, the right of Martin Gulling to have his mortgage
foreclosed, and it also had jurisdiction of the persons, to wit, the Washoe County Bank and of
Martin Gulling. They both had appeared in the action. There was no direct proof showing
whether the bank's answer had or had not been served upon Gulling. There is no rule of law
or practice of the courts which makes proof of such service any part of the record. The record
is silent upon that question. The record being silent, what presumption should the court
adopt? (Freeman on Judgments, 133; Black on Judgments, 271; Elliott on Evidence, 99.)
Goodwin, Webb, Dodge & Parker, for Respondents:
This court in its former opinion (28 Nev. 450) held with the trial court that because of the
fact that the answer of the defendant Washoe County Bank was not served on its codefendant,
Martin Gulling, in the suit of the Farmers' and Mechanics' Savings Bank v. Daniel Powell et
al., and because of the further fact that the said answer of the Washoe County Bank did not
mention Martin Gulling in the title of the action, or in specific terms set up a cross-complaint
or cross-bill against him, and because of the further fact that in the answers of both Gulling
and the Washoe County Bank in said action it was set out that each defendant appeared in
response to the summons and in answer to the summons and complaint of the plaintiff, and
because of the further fact that Gulling did not demur, answer, or otherwise plead to the said
answer of the Washoe County Bank, that no issue was raised between the said
codefendants Martin Gulling and Washoe County Bank in said action, and therefore the
decree entered therein in favor of the defendant Washoe County Bank and against the
defendant Gulling was without jurisdiction and void, and hence does not constitute an
estoppel in the present action.
that no issue was raised between the said codefendants Martin Gulling and Washoe County
Bank in said action, and therefore the decree entered therein in favor of the defendant Washoe
County Bank and against the defendant Gulling was without jurisdiction and void, and hence
does not constitute an estoppel in the present action. A further examination of this case
convinces me that we were in error upon the intricate legal questions here presented. It does
not seem to be seriously disputed in this case that had the answer of the Washoe County
Bank, in the former action, set up its allegations by way of a cross-complaint or cross-bill
against Gulling, and he had been served with the same, and that Gulling had, without
objection, gone to trial upon issues thus raised, that he would have been bound by the decree
in question. The error that this court, and I think the trial court, also, fell into, was in taking
substantially the view that an issue between codefendants could not be raised and determined
in a proceeding so as to be binding upon the parties, unless such issue was presented upon the
face of the pleadings, and the pleadings duly served or a waiver of service shown, and that in
this case there was no issue raised upon the face of the pleadings, and the court found that no
service between the said codefendants was made.
It may safely, I think, be said that the judgment roll alone in the case of the Farmers' and
Mechanics' Savings Bank v. Powell et al. does not show upon its face a joinder of any issue
between the said codefendants Gulling and Washoe County Bank. We shall, at least, for the
purposes of this opinion concede that it does not. The principle, however, I believe is well
settled in reason and authority that where the pleadings do not upon their face show the issue,
if any, tried and determined between parties to an action, the same may be shown by extrinsic
evidence. Black on Judgments, vol. 2, 614, p. 738, says: The doctrine of res judicata does
not rest upon the fact that a particular proposition has been affirmed and denied in the
pleading, but upon the fact that it has been fully and fairly investigated and tried; that the
parties have had an adequate opportunity to say and prove all that they can in relation to it;
that the minds of the court and jury have been brought to bear upon it, and so it has been
solemnly and finally adjudicated.
have been brought to bear upon it, and so it has been solemnly and finally adjudicated. Now,
these conditions are fully met when any question, though foreign to the original issue,
becomes the decisive question, the turning point in the case. In that event it will receive just
as full and exhaustive an examination as if it were the sole subject-matter of a distinct and
independent suit, and therefore should be considered as much settled by the judgment as if it
stood alone as the issue in the case. For these reasons, the more correct doctrine is that the
estoppel covers the point which was actually litigated and which actually determined the
verdict or finding, whether it was statedly and technically in issue or not. Numerous cases
incline to this view, and many attempts have been made to formulate a satisfactory statement
of the true rule. Thus it has been said that the matter in issue or point in controversy is that
ultimate fact or state of facts in dispute upon which the verdict or finding is predicated.
Again, it has been held that, if a particular matter which was not necessarily involved in the
issue, but which the issue was broad enough to cover, actually arose and was determined, it
may be connected with the record by evidence aliunde. In a well-considered case in Nevada
the court thought it was not necessary that the particular point should have been directly and
specifically put in issue by the pleadings, but it is sufficient if it is shown that the question
which was tried in the former action between the same parties is again to be tried and settled
in the suit in which the former judgment is offered in evidence. But, when the fact is not
directly put in issue by the pleadings, and it was not a fact necessarily to be passed upon
before judgment could be rendered, then parol evidence is admissible to show that the same
fact was submitted to and passed upon by the jury in the former action. If this be not done, the
judgment would, as evidence, be conclusive of nothing but the material facts directly put in
issue by the pleadings, or such as it was necessary to pass upon in finding the verdict or
rendering the judgment.' (Sherman v. Dilley, 3 Nev. 21.) * * * In all cases, therefore, where it
is sought to apply the estoppel of a judgment rendered upon one cause of action to matters
arising in a suit upon a different cause of action, the inquiry must always be as to the
point or question actually litigated and determined in the original action, not what might
have been thus litigated and determined.
rendered upon one cause of action to matters arising in a suit upon a different cause of action,
the inquiry must always be as to the point or question actually litigated and determined in the
original action, not what might have been thus litigated and determined. Only upon such
matters is the judgment conclusive in another action. Again, in section 624, the same author
says: It is now fully settled upon the authorities that extrinsic evidence, when not
inconsistent with the record and not impugning its verity, is admissible for the purpose of
identifying the points litigated and decided in a former action between the same parties, when
the judgment therein is set up as a bar or estoppel in the case on trial. * * * The record must
show that the same matter might have come in question on the former trial, and then the fact
that it did come in question may be shown by extrinsic proof.
See, also, Freeman on Judgment, vol. 1, 272, 273; Van Fleet's Former Adjudication, vol. 2,
413; 24 Am. & Eng. Enc. Law, p. 732; 23 Cyc. 1304.
The reasons supporting the foregoing rule will certainly apply as strongly to a case where
parties to an action have, in their pleadings, set up allegations of fact which would have raised
an issue between them, providing the same had been set up with the due formalities of
pleading and service of the same been made, and it is simply a question whether the parties,
regardless of such lack of formality in pleading and want of service, have, nevertheless,
appeared in court and actually treated the pleadings as raising issues between them, and,
without objection, have tried, argued, and submitted such issues for the determination of the
court. In the light of the foregoing rule, is there proof in this case showing that, regardless of
the fact that the answer of the Washoe County Bank was not served upon Gulling and that an
issue was not strictly raised upon the pleadings, the decision of the trial court was,
nevertheless, based upon issues actually litigated between the said parties to the former
action? A careful investigation of the record in this case, with the view of the application of
the rule stated, convinces me that there is undisputed evidence in the record that the two
codefendants, Gulling and Washoe County Bank, treated each other as adverse parties and
actually litigated the issues which the decree in that case purports to determine.

ants, Gulling and Washoe County Bank, treated each other as adverse parties and actually
litigated the issues which the decree in that case purports to determine.
In the trial of the present cause, appellant offered in evidence, in support of his plea of res
judicata, the papers filed in the former case, and the record shows that they were admitted
without objection. In the complaint of the Farmers' and Mechanics' Savings Bank, a decree of
sale of the premises covered by the trust deed was prayed for in case the same is not sold by
said trustees prior to the entry of judgment herein. Before the case came on for trial the
trustees did sell the property under the provisions in the trust deed, and the plaintiff from the
proceeds of such sale received the amount of the indebtedness due it. It then filed in the
action a disclaimer of any further interest in the action, and prayed that its complaint be
dismissed. When Gulling filed his answer to the plaintiff's complaint, he admitted all the
allegations of the complaint, and that his mortgage was subsequent to and subject to the trust
deed of the plaintiff, and alleged that it was presented for the purpose of having the same
adjudicated in this action and finally determined by the court in said action. He further
included in his answer the following allegations: And the defendant, Martin Gulling, avers
that in addition to the plaintiff, corporation, certain others, to wit, Thomas E. Haydon, Henry
Anderson, B. N. Steinman, C. H. Cummings, and others, whose real names are unknown to
this defendant, have, or claim to have, some interest or claim upon said premises as
purchasers, mortgagors, judgment creditors, or otherwise, which interest or claims are
subsequent to and subject to the lien of this defendant. He then prayed for the usual decree
of foreclosure and sale, and that the proceeds of said sale be applied, first, to the payment
and satisfaction of any judgment, the plaintiff, Farmers' and Mechanics' Savings Bank, a
corporation, may secure in said action; and, second, in payment and satisfaction of any
judgment this defendant may obtain herein. When the plaintiff in said action filed its
disclaimer and prayed that its complaint be dismissed, none of the numerous defendants
appeared to have asked that the action be dismissed, but, upon the contrary, the cause
came on for trial and each sought to have his rights adjudicated.
the action be dismissed, but, upon the contrary, the cause came on for trial and each sought to
have his rights adjudicated. There never was any real issue or controversy between the
defendant Gulling and the plaintiff in said action. When Gulling elected to remain in the
action after the plaintiff had disclaimed and prayed to be dismissed, he, in effect, assumed the
character of plaintiff. That he sought to have his mortgage foreclosed in that action is
indicated by the fact that he submitted evidence and proofs. He could not properly seek to
have his mortgage foreclosed without the holder of the legal title to the land being brought
into the action, and, as to him, made a defendant. Regardless of the form of Gulling's
pleading, its allegations were essentially directed against the holder of the legal title to the
mortgaged premises. The Washoe County Bank, at the time of the trial, held the legal title to
the land in question, and, in any action in which Gulling sought a foreclosure of his mortgage,
was a necessary party, and, in effect, would constitute a defendant as against Gulling. There is
evidence which goes to show that both Gulling and the Washoe County Bank recognized this
as the situation of the case. Gulling had been served with notice that the trustees, Steinman
and Cummings, were proceeding to sell the premises under the trust deed. Even if Gulling
had not been served with the answer of the Washoe County Bank, it cannot be said that he did
not have knowledge that the defendant bank had filed an answer of some sort, for he
stipulated with the said bank for the taking of testimony of witnesses at Sacramento for the
purpose of proving the trustees' sale, and he was advised of the nature of the testimony sought
to be adduced, for he acknowledged service of copies of the interrogatories to be propounded.
This stipulation was entered into nearly four months after the plaintiff had filed its disclaimer
and prayed to be dismissed. The evidence sought to be obtained by the Washoe County Bank
can scarcely be said to have been obtained for the purpose of establishing any issue between it
and the plaintiff.
With the complaint of the plaintiff practically out of the case, the answer of the Washoe
County Bank could have no function in the proceeding other than as a defense in the
nature of an answer or cross-bill to the defendant Gulling's cause of action.
function in the proceeding other than as a defense in the nature of an answer or cross-bill to
the defendant Gulling's cause of action. If not before, Gulling was at the time of the trial
advised of the purport of the Washoe County Bank's pleading. If, without objection, he went
to trial, seeking upon his part a foreclosure of his mortgage, with the Washoe County Bank,
upon the other hand, setting up the ownership of the legal title to the land in controversy, and
alleging facts which it claimed cut off Gulling's right to a foreclosure, it is difficult to see how
Gulling did not consent to a trial of the issues of fact and law thus presented, irrespective of
the form and character of the pleadings, or the nature of the service in the action. If he did so
consent and did so proceed to try the issues thus presented, he is as much bound by the decree
as he would be under the most formal pleadings and service, for the court would then
unquestionably have jurisdiction of both the parties and the subject-matter.
In addition to the fact that it appears that Gulling proceeded with the trial of the case, there
is evidence in the record, admitted without objection and standing without contradiction,
tending to prove that the codefendants Gulling and Washoe County Bank proceeded to try
and did try the issues actually determined and set forth in the decree. In the opinion of Judge
Cheney, rendered in the cause in question, we find the following: There is no serious
controversy concerning the facts of this case. The real issue is one of law between the
defendants, the Washoe County Bank, as purchaser under the trustees' sale, and Martin
Gulling, as mortgagee, under a mortgage made subsequent and subject to the conveyance
called a trust deed,' and by virtue of which the sale was made. * * * Something was said
upon the argument about the price for which this property sold being inadequate, and the
place of sale being unfair and oppressive. Several sufficient answers may be made to this. * *
* It is further urged that a great hardship will be wrought upon the second mortgagee if the
defendant bank is held to have acquired the legal title to this property, etc.
These extracts from the opinion of the trial judge indicate most strongly that both counsel
for Gulling and the Washoe County Bank must have entered into an argument of the legal
questions presented from the proofs offered by Gulling on the one hand, and the bank
upon the other.
County Bank must have entered into an argument of the legal questions presented from the
proofs offered by Gulling on the one hand, and the bank upon the other. If the parties were
not trying those issues, I cannot see upon what theory they were arguing their legal effect to
the court, unless the argument was subject to some reservation not disclosed by the record.
After the decision was rendered the defendant bank submitted findings, to which the
defendant Gulling interposed certain objections and amendments, and these objections and
amendments came on regularly for settlement, and counsel for Gulling participated in such
settlement, but it nowhere appears in the record disclosed in this case that the defendant
Gulling ever raised a question that the trial court rendered a decision upon issues not
presented to the court for determination. No appeal was ever taken from the judgment, and, so
far as the record here shows, no attempt was ever made to have it set aside or its regularity
questioned in any particular. Whether the court would have been authorized to have
proceeded with the trial of the cause, after the plaintiff had withdrawn from the case, over the
objection of any of the other parties to the suit, is not before us for consideration, nor is the
question of the character of the pleadings filed, for the record does not disclose that any
objection thereto was ever made.
It has been very strenuously contended by counsel for respondents upon this appeal that
Martin Gulling in the former action was in court for certain purposes, but not for the purpose
of trying the issues which the court in fact determined. This point was given great weight by
this court in its former opinion, but further examination and consideration convinces me that
the undisputed evidence shows that he remained in the case for the purpose of trying, and that
he actually did try, the issues which the decree of the court determined. As I now view this
case, the record shows that the pleadings were in such shape that, without objection and by
the consent of the parties, the issues determined by the trial court in the former proceeding
might have come in question, and the uncontradicted proof offered shows that such issues, by
the consent of the parties, did come in question, were litigated, and determined.
question, were litigated, and determined. There may be evidence, not offered upon the trial of
this case, contradictory to that presented in the present record, which would show, or tend to
show, that the questions determined by the trial court in the case of Farmers' and Mechanics'
Savings Bank v. Powell et al. were not, in fact, litigated by the parties to this action, or that, if
such questions were presented, argued, and submitted, it was subject to some objection or
reservation which might not make the decision binding. However, unless the evidence
contained in the present record is overcome, I think it cannot be said that the plaintiff herein
is not estopped by the decree entered in the said suit instituted by the Farmers' and Mechanics'
Savings Bank. No proposition of law is more thoroughly settled than that, when issues
between parties to an action have once been tried and finally determined, whether such
determination is erroneous or not, the same questions cannot again be litigated by such parties
or their privies. As this case now appears, the matters now sought to be litigated were tried
and determined in the case of Farmers' and Mechanics' Savings Bank v. Powell et al., in
which case the parties to this proceeding were codefendants.
For the reasons given, the judgment and the order of the trial court are reversed, and the
cause is remanded for a new trial.
Talbot, J., dissenting:
In the suit of the Farmers' and Mechanics' Bank of Sacramento, brought in the district
court at Reno against the Pollocks and Powell to foreclose its trust deed on property in
Washoe County, the parties hereto and others were made defendants under the usual general
allegation that they claimed or had some interest in the property which was subject and
subsequent to the trust deed. Gulling promptly, and before the sale by the trustees in
California, answered the complaint in that action, and admitted the execution and priority of
the trust deed, and claimed a second lien against the property under the mortgage executed to
him by the Pollocks and Powell, but this answer was not served upon them so as to warrant
the judgment directed to be entered against them by the decision of the district court.
them so as to warrant the judgment directed to be entered against them by the decision of the
district court. Several months after Gulling filed his answer, and after the trustees' sale, the
Washoe County Bank filed its answer against the complaint, and therein set up the trustees'
sale, having demurred in the meantime. The answer of Gulling did not refer to this sale,
which had not taken place until after it was filed. No cross-complaint or allegation of fact was
made or served between Gulling and the Washoe County Bank, and it seems to be conceded
that the pleadings raised no issue between them.
We have for consideration a question of law relating to the validity of a judgment against a
defendant and in favor of a codefendant between whom there was no cross-complaint, no
allegation of fact, no denial, no issue pleaded. If such a judgment is binding between
codefendants without pleadings between them, when they have appeared in court and litigated
the matter on which it is based, is there evidence in the record to show as a fact that the
Washoe County Bank and Martin Gulling as hostile codefendants and adversary parties
litigated the question of the validity of the trustees' sale on which the judgment in that case
was rendered? It is generally and properly held that an allegation between the parties which is
not denied, or which is defective and is not attacked by demurrer or in some manner on the
trial, is sufficient to sustain a judgment. This is not a case of that kind, for there is not, as
between the codefendants concerned, even a defective statement of fact, nor one side of an
issue as constituted by allegation and denial under the usual rules of pleading. Good reasons
are apparent for sustaining a judgment in favor of a plaintiff, which rests on an allegation in
his complaint which is not denied or which, if defective, was not attacked by demurrer or
motion, or in some way, in the nisi prius court. But if a judgment is to be conclusive between
codefendants without any allegation between them, as now held by the court, consistently
and, a fortiori, it should be good between a plaintiff and defendant without allegation, and
parties may in the future try their cases without any pleading. Will the estates, heirs, and
successors in interest of litigants always be sufficiently protected by any judgment the
court may enter, even in the absence of, and without notice to, the parties concerned, and
without any pleadings or showing of any action on their part, if they and their estates are
to be bound after the original litigants, their attorneys, and all present in court by whom
the matter litigated can be proved are dead?
successors in interest of litigants always be sufficiently protected by any judgment the court
may enter, even in the absence of, and without notice to, the parties concerned, and without
any pleadings or showing of any action on their part, if they and their estates are to be bound
after the original litigants, their attorneys, and all present in court by whom the matter
litigated can be proved are dead? All the attorneys then residing in the state who appeared for
the various parties in the original case, as well as Martin Gulling, have since died. One or two
text-writers without considering all the distinctions made by the courts or mentioning
statutory provisions which may control in a few states, and while admitting that the
authorities are conflicting, assert that the parties ought to be bound by a judgment based on
matters which they have litigated, but which were not put in issue by the pleadings.
Regarding this question, Mr. Black in his work on Judgments, wherein he cites with approval
Sherman v. Dilley, 3 Nev. 24, decided in 1867, appears oblivious to the provisions of our
practice act approved on March 8, 1869, two years after that case was decided. The decision
was by only two of the justices, and was rendered, it would seem, after the court had changed
its opinion, and while it was not entirely certain regarding the position taken. It was said in
the decision: By the former opinion of a majority of the court in this case, the judgment of
the lower court was reversed, and a new trial ordered. Upon further examination of the
authorities, however, I am satisfied that we were incorrect in our conclusions, and that the
judgment of the lower court must be affirmed. And, referring to the matter covered by the
estoppel: It is, perhaps, not necessary that it should have been directly and specifically put in
issue by the pleadings. The case was essentially different from the one at bar. It was an
action to enjoin the diversion of water, and the pleadings in the former suit between the same
parties related to certain premises. Under the riparian theory then claimed and the decisions,
the water was appurtenant to the land, and it could have been assumed that the complaint and
judgment for the premises carried the water with the other appurtenances without mentioning
them.
them. The opinion seems to have been criticised in another regard in a later one by this court.
(Lawson's Nevada Digest, p. 266, sec. 68.) At section 614 of Black on Judgments (2d ed.) the
author states: We have now seen that the estoppel of a judgment does not extend to such
matters as come only incidentally or collaterally into the controversy, but only to points
actually and necessarily adjudicated. In other words, that a former judgment is conclusive
only as to matters in issue or points in controversy, upon the determination of which the
finding or verdict was rendered. But what is the matter in issue' within the meaning of this
rule? Is the test to be furnished solely by the issues framed in the suit, or also by the course
and nature of the evidence? Suppose that a question arises on the trial which, per se, has
nothing to do with the cause of action, and is not mentioned in the pleadings, but which
materially affects the stated issue and must be determined before the issue can be found either
way. Suppose, further, that such question, thus becoming necessary to the decision of the
cause, is controverted between the parties, and is made the subject of evidence, argument, and
instructions, and that its resolution in effect determines the verdict of the jury. Now, is the
question to be considered res judicata between the parties or not? Unfortunately the
authorities are in conflict upon this subject, and the matter rests in much doubt and
confusion. At section 25 of Chand's Treatise on the Law of Res Judicata, he says: The
important question, however, is: What is the matter in issue within the meaning of the rule?
And, unfortunately, there is a considerable conflict of authority on that point. Section 428 of
volume 2, Van Fleet's Former Adjudication, states that parol evidence is not competent to
show that matters outside of the issues were passed upon.
Extracts from some decisions holding this view are:
Davidson v. Shipman, 6 Ala. 33: The general rule of the conclusiveness of judgments is
the one laid down by Chief Justice De Grey, in the Duchess of Kingston's Case. That the
judgment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as
evidence conclusive, between the same parties, upon the same matter directly in question in
another court.' This celebrated judgment has been ever since recognized in England and
the United States as a correct exposition of the rule.
question in another court.' This celebrated judgment has been ever since recognized in
England and the United States as a correct exposition of the rule. Some difficulty has,
however, been found to exist, and some discrepancies will be discovered upon an
examination of the numerous cases on this question as to the mode of ascertaining what was
the point in issue between the parties, and whether proof, aliunde, for that purpose is
admissible, or whether the point must not appear from the record. See the numerous cases on
this head collected, and arranged by Cowen and Hill, vol. 3, Phil. Ev. 826, 848. Necessarily
parol evidence must be admitted to identify the subject-matter of the suit. Every fact which
exists on record must be proved by the record, but, when the question is as to the real
subject-matter of the suit, or to show a bar to another suit, the identity of the cause of action
may be proved by other than record evidence.' (Parker v. Thompson, 3 Pick. 429.) See, also,
Cist v. Zeigler, 16 Serg. & R. 282, 16 Am. Dec. 573; Robinson v. Windham, 9 Port. 397. A
former judgment is a bar only in reference to the subject-matter of the suit, and the points
there put in issue and determined. Where, therefore, it is proposed to show, by the record of a
judgment, that a certain matter was decided, it must appear from the record that such matter
was in issue, and then parol testimony may be admitted to show that the matter was in fact
submitted to the jury. If the matter was not within the issue, such testimony is not
admissible.
Towne v. Nims, 5 N. H. 259, 20 Am. Dec. 578: The same principle is applied and
illustrated in a great many cases to be found in the books. (Kent v. Kent, 2 Mass. 338; Bank v.
Robinson, 2 N. H. 126; Rice v. King, 7 Johns. 20; Kitchin v. Campbell, 3 Wils. 304; Adams v.
Barnes, 17 Mass. 365; Tilton v. Gordon, 1 N. H. 33; Rex v. Pancras, Peake's N. P. C. 219;
Strutt v. Bovingdon, 5 Esp. N. P. C. 56; Da Costa v. Villa Real, 2 Stra. 961; Smith v. Whiting,
11 Mass. 445; Burt v. Sternburgh, 4 Cow. 559, 15 Am. Dec. 402.) In all these cases the point
upon which the judgment was held to be conclusive was directly in issue on the face of the
record; and was the foundation of the judgment. The judgment, to be conclusive, must be
upon the precise point.
conclusive, must be upon the precise point. (2 Stark, Ev. 198-201; Bull. N. P. 244.) It is also a
settled principle of law that when a fact, directly in issue on the face of the pleadings, is
determined by a jury in one case, the verdict may operate as an estoppel, if properly pleaded,
in another suit brought diverso intuitu between the same parties. But to constitute a legal
estoppel in such a case, the fact must have been in issue on the face of the pleadings in the
first case, and the verdict must be pleaded as an estoppel. (3 Stark, Ev. 1280, note y; Evelyn
v. Haynes, 3 East, 365; Outram v. Merliwood, Id. 346; Vooght v. Winch, 2 Barn. & Ald. 662;
Manny v. Harris, 2 Johns. 24, 3 Am. Dec. 386; Sintrenick v. Lucas, 1 Esp. N. P. 43;
Blackham's Case, 1 Salk. 290.)
Rosema v. Porter, 112 Mich. 14, 70 N. W. 317: We think it cannot be said that the
former judgment is res judicata as to the extent of the defendant's lien upon the horse. The
bill of particulars fixed the issue under the general pleadings. This being the case, the record
cannot be contradicted by showing that other matter has been adjudicated. (Mondel v. Steel, 8
Mees. & W. 858; Campbell v. Butts, 3 N. Y. 173; Burdick v. Post, 12 Barb. 168; Hatch v.
Benton, 6 Barb. 28; Meredith v. Mining Assn., 56 Cal. 178; Green v. Clark, 5 Denio, 497;
Jones v. Perkins, 54 Me. 393; Chapman v. Smith, 16 How. 114, 14 L. Ed. 868; 2 Van Fleet,
Former Adj. 428; 2 Smith, Lead. Cas. 784.)
Lewis' and Nelson's Appeal, 67 Pa. 165: But it is too well settled to need either argument
or authority to maintain it that the estoppel of a judgment extends only to the question directly
involved in the issue, and not to any incidental or collateral matter, though it may have arisen
and been passed upon. This is clearly stated in the language of Lord Chief Justice De Grey in
the Duchess of Kingston's Case, 11 Harg. State Trials, 261, 20 Howell's State Trials, 538, 2
Smith, Lead. Cas. 424.
Jones v. Perkins, 54 Me. 396: There are cases where parol evidence is admissible in aid
of the record. * * * It is never allowed to contradict or vary the record. (Gay v. Wells, 7 Pick.
217; McNear v. Bailey, 18 Me. 215; Sturtevant v. Randall, 53 Me.
v. Randall, 53 Me. 149.) The evidence must be confined to the proof of such facts and issues
as were, or might have been, legitimately decided under the declarations and pleadings. If
otherwise, it might contradict or vary the record. The record is conclusive evidence that the
judgment was rendered upon some one or more of the issues legitimately raised by the
pleadings of the parties. The parol proof is only to distinguish which of those several issues
were decided, or to show that some particular fact was decided in the determination of some
of those issues.
Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570: A decree or judgment on the matter
outside of the issue raised by the pleadings is a nullity. And: Courts can only hear and
determine causes on the pleadings actually filed, and not on what parties may agree they shall
be.
Campbell v. Consalus, 25 N. Y. 616: To make such proceedings and judgment thus
conclusive, it should have appeared, not only that the amount due on the mortgage was
litigated, and found by the referees in such prior action, but it should also have appeared by
the record of the judgment in such prior action that the amount due on the mortgage was put
in issue by the pleadings in such prior action. (Campbell v. Butts, 3 N. Y. 173; Manny v.
Harris, 2 Johns. 24, 3 Am. Dec. 386; Young v. Rummell, 2 Hill, 481, 38 Am. Dec. 594;
Burdick v. Post, 12 Barb. 168; Doty v. Brown, 4 N. Y. 71, 53 Am. Dec. 350; Standish v.
Parker, 2 Pick. 20, 13 Am. Dec. 393.) Even an agreement between the parties that matters
foreign to the pleadings shall be given in evidence and decided by the verdict of a jury will
not, it seems, enlarge the operation of a judgment entered on such verdict by way of estoppel.
(Wolfe v. Washburn, 6 Cow. 262; Guest v. Warren, 9 Ex. 379; 2 Smith, Lead. Cas. 672.)
In the opinion by Field, C. J., in Boggs v. Merced Mining Co., 14 Cal. 279, 380, it was
held that a court cannot properly, even upon the consent of the parties, pass upon questions
not raised by the written allegations of the pleadings.
Justice Sanderson, speaking for the court, in Garwood v. Garwood, 29 Cal. 521, said:
The judgment of a court having jurisdiction directly upon the point in controversy is, as a
plea, a bar; and, as evidence, competent and conclusive as between the same parties.
plea, a bar; and, as evidence, competent and conclusive as between the same parties. * * *
This rule, however, is restricted to facts directly in issue, and does not embrace facts which
may be in controversy, but rest in evidence and are merely collateral. A fact or matter in issue
is that upon which the plaintiff proceeds by this action, and which the defendant controverts
in his pleadings, while collateral facts are such as are offered in evidence to establish the
matters or facts in issue, and, notwithstanding they may be controverted at the trial, they do
not come within the rule. (King v. Chase, 15 N. H. 16, 41 Am. Dec. 675.)
Hicks v. Murray, 43 Cal. 522: Evidence of facts, or stipulations as to the facts of a case,
cannot make the case broader than it appears by allegations, nor can a party by mere force of
facts admitted or proven become entitled to relief to which he would not have been entitled
had his case been resisted only by general demurrer interposed to the pleadings upon which
he relies.
In Concannon v. Smith, 134 Cal. 18, 66 Pac. 40, the following from Freeman on
Judgments is quoted with approval: The general expression, often found in the reports, that a
judgment is conclusive of every matter which the parties might have litigated in the action, is
misleading. What is meant by this expression is that a judgment is conclusive upon the issues
tendered by the plaintiff's complaint. It may be that the plaintiff might have united other
causes of action with that set out in his complaint, * * * but, as long as these several matters
are not tendered as issues in the action, they are not affected by it.
In Meredith v. S. Clara Min. Assn., 56 Cal. 180: In Sintzenick v. Lucas, 1 Esp. R. 43,
Lord Kenyon lays it down that, to make a record evidence to conclude any matter, it should
appear that the matter was in issue, which should appear from the record itself; nor should
evidence be admitted that under such a record any particular matter came in issue. And in
Manny v. Harris, 2 Johns, 24, 3 Am. Dec. 386, Spencer, J., quotes Lord Kenyon approvingly,
and says, in effect, that unless the issue in the former action embraced the consideration of the
present cause of action evidence ought not to be received that the jury did decide upon it."
evidence ought not to be received that the jury did decide upon it.
Supporting the same principle are Shama Churn v. Prosunno Coomar, 34 V. C. L. B. 251;
Topliff v. Topliff, 8 Ohio, Cir. Ct. 55, Sections 257 and 272 of Freeman on Judgments (4th
ed.) and cases there cited, where it is said that the rule is inflexible that the estoppel is
restricted to the controversy made by the pleadings. Some of the cases holding that evidence,
aliunde, may be received to show what facts within the issue were or were not proved on a
former trial may appear to conflict with the above, when they really do not, and are easily
distinguished. This is true, regarding authorities cited by appellant, and by Professor Black in
his article on Judgments in 23 Cyc. For example, in Spiers v. Duane, 54 Cal. 176, instead of
the judgment covering matters outside of the pleadings, there was a complaint with
allegations admittedly sufficient, and it was held that objections that the answer was defective
could be made for the first time on appeal. Very correctly this and other cases hold that the
judgment will be final in favor of the party who has alleged facts to sustain it, although
denials may be defective or lacking. If it be claimed that part of the allegations in the
complaint or of affirmative matter in the answer may be dispensed with, or that allegations
between some of the parties may, for instance, as here, between codefendants, when there are
allegations between them separately and the plaintiff, but none directly between themselves,
it would be difficult to draw any line between such dispensation of a part and of all pleadings
between all parties, which would result in the lax practice of allowing litigants to try cases
and have them adjudicated without any pleadings, and lessen the stability and certainty of
judgments, thereby entailing greater hardships than by requiring litigants to properly plead.
If we had no statute or decision in point and swept aside the cases cited, and it were
considered the better rule to adopt in this state that regardless of pleadings parties are bound
by all matters litigated, and which the judgment may cover, it may be doubted whether the
record contains sufficient or proper evidence to indicate that the matter which controlled the
court and resulted in the judgment, the trustees' sale, and its validity against the Gulling
mortgage, or that anything else was litigated between the defendants there, who are
parties here.
controlled the court and resulted in the judgment, the trustees' sale, and its validity against the
Gulling mortgage, or that anything else was litigated between the defendants there, who are
parties here.
As it is a well-recognized principle, and one sustained by the authorities in the brief and
others such as Keagy v. Bank, 69 Pac. 811, 12 Okl. 37, and Harvey v. Osborn, 55 Ind. 535,
that defendants are not presumed to be adversary parties, it should not be inferred that they
litigated anything between themselves from the fact that they were both in court when the
answer of each was directed against the complaint, and contained no allegation of fact against
the other, nor should it be so inferred because in advance of the trial as a matter of
convenience and accommodation they joined in a stipulation to take depositions, which were
signed: Thos. E. Haydon and Robt. T. & Wm. H. Devlin, Attorneys for Plaintiff, W.
Webster, Atty. for Deft. Washoe County Bank, T. V. Julien, of Counsel, Atty. for other defts.
appearing in said action.
It ought not to be implied that Gulling was an adverse party to the Washoe County Bank
because he made this stipulation with the plaintiff and the other defendants any more than if
he had merely stipulated with the plaintiff when the other defendants did not join. Nor should
it be so inferred from the fact that they both appeared on the trial or in court at other times.
Nor are we warranted in presuming that they litigated between themselves questions relating
to the validity and effect of the trustees' sale because these appeared most important and
controlling to the district judge, and so seem to us now. On the trial below in this case the
record in the former action was admitted, and has been brought here on appeal, but no
testimony was introduced to show what questions had been litigated.
The findings recite that the defendants, which would include the parties here, introduced
evidence in support of the issues made by their answers, thereby implying that they did not
introduce other evidence. With the answers of the two defendants there, who constitute the
parties here, containing no issue nor allegation of fact between themselves, the introduction
of evidence to support the issues made by either or both of these answers and the
complaint would not indicate that either of these parties introduced evidence against the
other, nor that anything was litigated between them.
duction of evidence to support the issues made by either or both of these answers and the
complaint would not indicate that either of these parties introduced evidence against the
other, nor that anything was litigated between them. In the absence of presumptions and of
any written stipulation, or an oral one made in open court and entered in the minutes, and
with no showing that any evidence was introduced on the original trial by either of the parties
here against the other, it would seem that the pleadings and the findings of the trial court are
the only authorized or proper evidence of the facts which were in issue and were litigated.
There is nothing in the record from which it may be suspicioned that anything was litigated
between these parties as adversary codefendants in the former action, except the opinion of
the district judge filed after the trial and separately from the findings and judgment. This
opinion was beyond the control of the parties, and is quite different from the testimony of a
trial judge if given as a witness and subject to cross-examination, and its competency as
evidence may be doubted.
In Buckingham's Appeal, 60 Conn. 143, 22 Atl. 509, it was said: In admitting the record
itself, therefore, under the circumstances disclosed by the finding, we do not think the court
below erred. But the court also admitted in evidence the written opinion of the judge who
tried the case in the United States court. This was no part of the record. It was admitted for
the purpose of showing the grounds of the decree. The decree itself did not show on what
facts it was based. After the record was admitted the question then was whether the validity
of the gifts to the nieces, which was in issue in the case at bar, had been in issue and had been
determined in the prior suit. In such a case, if the record does not clearly disclose the facts
upon which the judgment or decree is based, they may be shown by any proper evidence
outside of the record. (Supples v. Cannon, 44 Conn. 424; Mosman v. Sanford, 52 Conn. 23.)
But the witnesses who give such evidence must give it in the ordinary way, and under the
conditions imposed upon all witnesses. It must be given under oath and subject to right of
cross-examination, and it must not be what is termed hearsay' evidence. By the admission of
the opinion aforesaid, as evidence to show the grounds of the decree, these fundamental
rules of evidence were violated, and the court committed an error."
the admission of the opinion aforesaid, as evidence to show the grounds of the decree, these
fundamental rules of evidence were violated, and the court committed an error.
In Keech v. Beatty, 127 Cal. 183, 59 Pac. 839: If it be conceded that parol evidence may
be given as to what the issues were in the former suit, the parol evidence would have to be
competent. The written opinion, without even the form of having been made under oath, was
not competent evidence for the purpose for which it was offered. In the decision of this court
in Wheeler v. Floral Mill and Mining Co., 9 Nev. 258, the court found as a fact that the
offset pleaded by respondent was a proper matter of offset'; but we cannot presume that this
fact was properly found, because there were no averments in the answer to base such a
finding upon. (Barron v. Frink, 30 Cal. 489; Burnett v. Stearns, 33 Cal. 473.)
If without pleadings matters in dispute may be tried and adjudicated by judgments which
are to be conclusive against the parties and act as estoppels against their heirs and successors
in interest, there should be proof competent within the ordinary rules for the admission of
evidence to indicate the things which were litigated, and, when the judgment is between
codefendants, it should especially be clearly shown that they had acted as adversary parties.
The cases seem to be uniform in requiring full and satisfactory evidence to establish matters
which have been litigated within the issues. If the practice act controls, it seems unnecessary
to determine whether it is the better doctrine where there is no statutory enactment to hold
that the parties are bound by all matters litigated, regardless of any issue or allegation in the
pleadings, as now seems to be advanced by a majority of this court, or, whether, in the
absence of such enactment, an issue, or at least an allegation in the complaint or answer, even
if defective or undenied, is necessary to support the judgment and conclude the parties as held
in the cases cited and others. As we have a statute clearly covering the matter involved, it is
more apropos to consider its language and meaning and the decisions in this state rendered
since its passage, and we should not forget that questions relating to its policy are for the
legislature, and that it ought not to be repealed and nullified by the courts, whether it be
deemed that some other rule would be better or more in consonance with the views of
this and other tribunals.
the legislature, and that it ought not to be repealed and nullified by the courts, whether it be
deemed that some other rule would be better or more in consonance with the views of this
and other tribunals. The practice act provides:
Sec. 150. The relief granted to the plaintiff, if there be no answer, shall not exceed that
which he shall have demanded in his complaint; but in any other case the court may grant him
any relief consistent with the case made by the complaint and embraced within the issue.
(Comp. Laws, 3245.)
Sec. 155. An issue of fact arises: First, upon a material allegation in the complaint,
controverted by the answer; and, second, upon new matter in the answer, except an issue of
law is joined therein. (Comp. Laws, 3250.)
Sec. 65. The allegation of new matter in the answer shall on the trial be deemed
controverted by the adverse party. (Comp. Laws, 3160.)
Provisions similar to section 150 are in force in New York, California, Iowa, Indiana,
South Carolina, Colorado, Kentucky, and Missouri. (Bliss, Code Pleading, 3d ed. 160.)
In Mitchell v. Mitchell, 28 Nev. 123, we have already had occasion to construe the fore
part of section 150, and to hold that upon default the court had no power to enter judgment
for more than the relief demanded in the complaint.
In McLeod v. Lee, 17 Nev. 112, 117, 28 Pac. 125, this court stated: The general principle
that a judgment of a court of competent jurisdiction between the same parties and upon the
same issues is, as a plea, a bar, or, as evidence, conclusive, is too well settled to require
discussion. Such a judgment is not only conclusive of the right which it establishes, but of the
facts which it directly decided. This rule is necessary for the repose of society. It is in the
interest of the public that there should be an end of litigation. * * * The estoppel extends to
every material allegation or statement which, having been made on one side and denied on
the other, was at issue in the cause, and was determined in the course of the proceedings.'
In that case evidence was allowed to identify a dam. It was said that this testimony was
admissible, not for the purpose of varying, controlling, or contradicting the record, but for
the purpose of more clearly showing that the dam in question in this suit was the same
dam that was in issue in the former action."
but for the purpose of more clearly showing that the dam in question in this suit was the same
dam that was in issue in the former action.
The cases are numerous and uniform holding that extrinsic evidence is not admissible to
impeach or contradict statements in the record with reference to points or matters in litigation,
or which have been adjudicated.
In Low v. Blackburn, 2 Nev. 73, it was stated: Even in equity, where technicalities are
mostly discountenanced, a party can have relief, if at all, only upon the allegations in the
pleadings. No decree can be made in favor of a party upon grounds not set forth in his
complaint or answer. The rule is absolute, in chancery, that a party can only recover upon the
case he presents. Secundum allegata et probata.' (Bailey v. Ryder, 10 N. Y. 363, 370; Byrne
v. Romaine, 2 Edw. Ch. 446, 447; Beaty v. Swarthout, 32 Barb. 293, 294.)
Chief Justice Hawley, speaking for the court, in Perkins v. Sierra Nevada S. M. Co., 10
Nev. 412, 413, said: The question whether the judgment in the case under consideration was
final must be determined with reference to the facts and issues presented by the record. * * *
It is a well-established principle of law that the findings of a court should be confined to the
facts at issue, and the judgment of the court must be warranted by the pleadings. (Burnett v.
Sterns, 33 Cal. 473; Bachman v. Sepulveda, 39 Cal. 689; Marshman v. Conklin, 21 N. J. Eq.
548; Munday v. Vail, 34 N. J. Law, 418; Dodge et al. v. Wright, 48 Ill. 383.) And the fact that
plaintiffs consented to this judgment does not change the rule. (Hastings v. Burning Moscow,
2 Nev. 96.)
If parties are to be bound by matters litigated without pleadings when the judgment is set up
as res judicata in another action, they would likewise be concluded by the same judgment on
appeal in the first action, for, by voluntary litigating matters outside of the issues, they would
be without the proper objection and specification of error on which to base an appeal, and
consequently the judgment would be equally conclusive and the rule the same in either case.
We should remember that we are acting on the chancery side of the court, and that equity
principles should apply, and, as this action is one purely in equity, doubts, if any, would be
more properly resolved in such a way that the rights of none would be cut off or lost.
and, as this action is one purely in equity, doubts, if any, would be more properly resolved in
such a way that the rights of none would be cut off or lost. With this purpose in view, if we
had no statute or decisions applicable in this state, it still would be better to hold that the
parties are not concluded by the former judgment which is not supported by any issue or
allegation in the pleadings, nor clearly shown by competent evidence to rest upon matters
which were litigated by the parties as adversary codefendants. It is apparent from the record
and uncontradicted that the property was of the value of about $14,000, more than sufficient
to pay the prior claim of the Sacramento Bank for $8,000 and interest, and the $2,000
mortgage of Gulling, which was the second lien on the property, and yet the Washoe County
Bank has its unsecured debt for $5,000, which was subsequent to both of these claims,
satisfied, while the Gulling mortgage remains unpaid.
The statute and decisions of this court rendered since its passage should be followed, and
the judgment of the district court, and of this court sustaining the same, as rendered before the
rehearing, ought to be affirmed.
____________
29 Nev. 281, 281 (1907) Turner v. Langan
[No. 1711.]
C. C. TURNER, Petitioner, v. HON. F. P. LANGAN, as Judge of the First Judicial District
Court of the State of Nevada, Lyon County, and I. H. STROSNIDER, Respondents.
1. ProhibitionWhen Writ Will LieRemedy by Appeal. The writ of prohibition will not lie
to restrain a judge of the district court from canvassing the returns from an election precinct in an election
contest, since the party aggrieved by any erroneous action of the court has an adequate remedy by appeal.
Application of C. C. Turner for a writ of prohibition directed to F. P. Langan, District
Judge of the First Judicial District of the State of Nevada, and I. H. Strosnider. Denied.
The fact sufficiently appear in the opinion.
Alfred Chartz, for Petitioner.
C. E. Mack, for Respondent:
I. A writ of prohibition never issues to review what has already been done, nor to prevent
the doing of an act which is not threatened to be done. (Coker v. Superior Court, 58 Cal.
178.) An order of prohibition may issue from the supreme court of this state in a proper case
to arrest the progress of a trial, but such order should not issue when there is another and
adequate remedy. (Low v. Crown Point M. Co., 2 Nev. 75.)
II. It is well established that when an appeal affords a complete and adequate remedy and the
same ends can be accomplished, although perhaps not in so expeditious a manner, the party is
not entitled to the extraordinary remedy of prohibition, but must have resort to his remedy by
appeal. (White v. Superior Court, 110 Cal. 58.) The writ of prohibition lies only where there
has been an excess of jurisdiction and there is not a plain, speedy, and adequate remedy in
the ordinary course of law. The petitioner, having a right of appeal from any order made by
the inferior court, is not entitled to a writ of prohibition. (Havemeyer v. Superior Court, 84
Cal. 327.)
III. In all cases of contested elections the district court of the respective districts shall have
original jurisdiction to try and determine all such cases, and may, by mandamus or
otherwise, obtain all documentary evidence required by either of the parties litigant.
try and determine all such cases, and may, by mandamus or otherwise, obtain all
documentary evidence required by either of the parties litigant. (Comp. Laws, 1621, 1622,
1623, 1624, 1625, 1635; Garrard v. Gallagher, 11 Nev. 386.)
IV. The petition of C. C. Turner shows that he and his colleagues, as commissioners of Lyon
County, acting as a board of canvassers, passed upon the Churchill returns and refused to
canvass the same, because the returns were irregular and indicative of a fraud perpetrated
after the votes had been cast, and having once acted on the returns they cannot be compelled
by mandamus to determine whether or not a question of fraud had been perpetrated after the
returns and votes had left Churchill Precinct, even if this were the only question set forth in
the complaint and answer. (McCreary on Elections, par. 57; People v. Supervisors of Green,
12 Bar. 217; State v. Rodman, 43 Mo. 256; Oglesby v. Sigman, 58 Miss. 502; McCreary on
Elections, 362, 363.) To have attempted to determine the question of how many votes in other
precincts had been thrown out that had been cast for contestant, as alleged in the complaint,
also to determine the question as to how many ballots were thrown out and not counted for
contestee by the various boards of election of Lyon County, by mandamus against said board
of county commissioners of Lyon County, would have been the height of folly.
This is an application, upon notice to respondents, for the issuance of a writ of prohibition
directed to the respondent, F. P. Langan, as District Judge of the First Judicial District in and
for Lyon County, and commanding him to refrain from canvassing the returns from a certain
election precinct in said county called Churchill Precinct, in a certain election contest for the
office of short-term county commissioner, now pending before said court, in which the
respondent, I. H. Strosnider, is plaintiff and contestant, and petitioner, C. C. Turner, is the
defendant and contestee. The writ is also asked for the purpose of prohibiting the respondent
judge from deciding the contest.
The petition sets forth the pleadings in the contest and a purported recital of the
proceedings thus far had showing present status of the case. Respondents have appeared by
counsel, and have opposed the issuance of the writ, upon the ground that no sufficient
showing has been made warranting the invoking of this extraordinary remedy. The plaintiff
and contestant in the lower court set up in his complaint that he had received at the general
election in 1906 for the said office of short-term county commissioner 282 votes, and that his
opponent, C. C. Turner, received 279 votes, and that, by reason of his having received a
majority of three votes, the contestant was regularly and legally elected.
The complaint further alleges that the board of county commissioners met on the ___ day
of November, 1906, and canvassed the returns for all the precincts of said Lyon County,
excepting the said Churchill Precinct, which they refused to canvass, with the result that, by
such canvass, it was found that plaintiff and contestant had received 275 votes, and said
defendant Turner had received 277 votes for said office, a majority of two votes in favor of
the defendant. The answer in the lower court denies the allegations of the complaint relative
to the plaintiff having received a majority of the votes cast, and further alleges facts which he
claims makes the returns from Churchill Precinct void and improper to be canvassed.
The defendant's answer, following the language authorized by the statute in election
contests, further charges the facts to be that, in other precincts in said County of Lyon, votes
were thrown out and not counted that were cast for defendant and contestee, by the various
boards of election for Lyon County, that should have been counted for defendant, and that
said various boards of election in said county counted votes for plaintiff that were illegal by
reason of having distinguishing marks, which should not have been counted, and counted
votes for plaintiff that should have been counted for defendant. The complaint also
contained a similar allegation in plaintiff's favor. (Comp. Laws, 1624.)
The case proceeded to trial upon the issues made by the pleadings. When the plaintiff
offered in evidence the returns from Churchill Precinct, the defendant objected to their
introduction, upon the grounds of immateriality and incompetency.
from Churchill Precinct, the defendant objected to their introduction, upon the grounds of
immateriality and incompetency. The admissibility of the returns of Churchill Precinct was
regarded as of such vital importance to the case that both sides took time to file briefs upon
the question. It appears that these briefs have been filed, but that the respondent judge has not
as yet determined their admissibility.
Petitioner sets forth in his petition that the respondent threatens to admit the returns and
ballots of this precinct, and will do so unless prohibited therefrom by this court. From the
showing made upon the hearing, we think it cannot be said that the trial court has, as yet,
made any intimation as to how he will determine the question presented to him. But even if
we concede, solely for the purposes of the case and the argument, the contentions of
petitioner that the trial court is threatening to admit and count the ballots of Churchill
Precinct, and that he will do so unless restrained, and that such act will be beyond the
jurisdiction of the court, nevertheless it is not such a showing as would warrant the
restraining of such proceedings by writ of prohibition.
In the recent case of Bell v. District Court, 28 Nev. 280, this court in its opinion quoted
with approval from the opinion of Hawley, C. J., in the case of Walcott v. Wells, 21 Nev. 51,
24 Pac. 368 (9 L. R. A. 59, 37 Am. St. Rep. 478), the following: The writ of prohibition is
an extraordinary remedy, and should be issued only in cases of extreme necessity. Before it
should issue, it must appear that the petitioner has applied to the inferior tribunal for relief.
The object of the writ is to restrain inferior courts from acting without authority of law in
cases where wrong, damage, and injustice are likely to follow from such action. It does not lie
for grievances which may be redressed, in the ordinary course of judicial proceedings, by
appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused
according to the facts and circumstances of each particular case. Like all other prerogative
writs, it is to be used with caution and forbearance, for the furtherance of justice, and securing
order and regularity in judicial proceedings in cases where none of the ordinary remedies
provided by law are applicable.
judicial proceedings in cases where none of the ordinary remedies provided by law are
applicable. The writ should not be granted except in cases of usurpation or abuse of power,
and not then unless the other remedies provided by law are inadequate to afford full relief. If
the inferior court has jurisdiction of the subject-matter of the controversy, and only errs in the
exercise of its jurisdiction, this will not justify a resort to the extraordinary remedy by
prohibition.
If the trial court should admit the ballots from Churchill Precinct, and if it were, as
contended by counsel for petitioner, that the trial court has no jurisdiction so to do, and injury
results therefrom to petitioner, the remedy by appeal, we think, is adequate to afford full
relief. It is not alone requisite that the trial court be without jurisdiction in the premises, but it
must satisfactorily appear that wrong, damage, or injustice is likely to follow from the
threatened action, and that no other remedy will afford full relief. The trial court
unquestionably has jurisdiction of election contests between rival claimants to a county
office. If the contest is improperly instituted, or if the complaint sets forth matters not within
the court's jurisdiction, or if incompetent evidence is admitted upon the hearing, the remedy
by appeal will ordinarily, at least, afford full relief, provided the proper objections and
exceptions are taken in the trial court.
We think the showing insufficient to entitle petitioner to the writ, and the same is denied.
____________
29 Nev. 286, 286 (1907) Hart v. Spencer
[No. 1702.]
JOHN HART, Appellant, v. GEORGE S. SPENCER and MRS. GEORGE S. SPENCER, His
Wife, Respondents.
1. AppealRecordTranscriptRequisites. Where the transcript on appeal from judgment
of dismissal contains the original papers filed in the case and an affidavit on motion for a new trial and on
appeal, a motion will be granted to strike out all papers, excepting the complaint, demurrer, summons, and
judgment.
2. DismissalDefects Relating to Record. Where the record on appeal from the judgment
does not contain a statement of the case, a bill of exceptions, or any document certified to by the clerk as
containing the judgment roll, or purporting to be the judgment, there is nothing before the court for
consideration, and the appeal will be dismissed.
Action by John Hart against George S. Spencer and his wife. From a judgment dismissing
the cause of action, plaintiff appeals. Appeal dismissed.
O. H. Mack, for Appellant.
Cheney & Massey, for Respondents.
The notice of appeal in this cause specifies that the appeal is taken from the judgment and
order of the trial court sustaining defendants' motion dismissing the cause of action from the
calendar. The transcript on appeal is in two volumes. Volume 1 contains apparently the
originals of papers filed in the case in the lower court, excepting a paper designated
Affidavit on Motion for a New Trial and on Appeal, which last-mentioned document
comprises volume 2.
Respondents have moved to strike out and discharge from the record on appeal all of
volume 2, and all the papers included in volume 1, excepting the complaint, demurrer,
summons, and judgment. An affidavit on appeal is unknown to the practice in this state, and,
as there is no appeal from an order denying a motion for a new trial, the affidavit in question
can have no proper place in the record.
29 Nev. 286, 287 (1907) Hart v. Spencer
question can have no proper place in the record. (Comp. Laws, 3427; Alexander v. Archer,
21 Nev. 31.)
The motion to strike out is allowed.
The record on appeal from the judgment does not contain a statement of the case or bill of
exceptions, either attached to the judgment roll or otherwise, and consequently the only thing
that could be considered upon the appeal would be the judgment roll. While the motion to
strike out mentions the judgment as one of the papers excepted from the motion, we do not
find in the record, certified to by the clerk as containing the judgment roll, any document
purporting to be the judgment or a copy thereof, nor a copy of the order dismissing the action.
There being nothing before the court for consideration, the appeal must be dismissed, and
it is so ordered.
Talbot, C. J.: I concur.
Sweeney, J., did not participate, the case having been submitted prior to his ascending the
bench.
____________
29 Nev. 288, 288 (1907) In Re Waterman
[No. 1716.]
In the Matter of the Application of RALPH E. WATERMAN for a Writ of Habeas Corpus.
1. ExtraditionInterstateConstitutional and Statutory Provisions. Under the Constitution of
the United States, art. IV, sec. 2, providing that one charged in one state with a felony, who shall flee from
justice and be found in another state, shall, on demand of the executive of the former state, be delivered up
for removal thereto, and Rev. Stats. U. S. 5278 (U. S. Comp. Stats. 1901, p. 3597), providing that when the
executive of a state demands a person as a fugitive from justice of the executive of a state to which such
person has fled, and produces a copy of the indictment charging the person demanded with having
committed felony, etc., it shall be the duty of the executive of the state to which such person has fled to
cause him to be arrested, etc.; the obligation of the executive of a state to deliver up a fugitive from justice
on demand of the executive of another state only arises when the fugitive is legally charged with a crime
committed within the state demanding his surrender.
2. Habeas CorpusExtraditionReview. The court, on habeas corpus for the discharge of
one arrested as a fugitive from justice, under an executive warrant, may examine into the sufficiency of the
papers on which the warrant is based, and, if the indictment or complaint on which the requisition is made,
and the executive warrant issued, is insufficient, the court will discharge the prisoner.
3. False PretensesIndictmentAllegations of Obtaining PropertyNecessity. An
indictment to charge the offense of obtaining property by means of false pretenses, as defined by the
Code of Iowa, sec. 5041, punishing one who, by false pretense, and with intent to defraud, obtains from
another any money, goods, or other property, etc., must allege that accused obtained from another
money, goods, or other property.
4. Description of Property. An indictment charging the offense of obtaining property by
means of false pretenses must allege the character of the property charged to have been obtained with
the same certainty as is required in an indictment for larceny.
Original proceeding. Application by Ralph E. Waterman for a writ of habeas corpus for
his discharge from custody under a warrant issued by the Governor of the State on the
requisition of the Governor of Iowa. Petitioner discharged.
R. C. Stoddard, Attorney-General, for the State.
Milton Detch, P. F. Carney, and Samuel Platt, for Petitioner:
I. The defendant should be discharged because the indictment does not charge an
offense against the laws of the State of Iowa in that it fails to show that the defendant
obtained by false pretenses any money, goods, or chattels; it fails to show that defendant
obtained any interest or benefit, by false pretenses or otherwise, in any money, goods or
chattels; it fails to show that complaining witness parted with anything of value.
ment does not charge an offense against the laws of the State of Iowa in that it fails to show
that the defendant obtained by false pretenses any money, goods, or chattels; it fails to show
that defendant obtained any interest or benefit, by false pretenses or otherwise, in any money,
goods or chattels; it fails to show that complaining witness parted with anything of value. The
indictment fails to establish the jurisdiction and venue in that it does not allege in what state,
territory, or jurisdiction defendant obtained the money, goods, or chattels; the indictment fails
to show that defendant is a fugitive from justice from the State of Iowa in that no offense is
alleged to have been committed within the State of Iowa; the consummation of the crime
being the obtaining of the money, goods, and chattels, and the place of obtaining not being
alleged, defendant is not a fugitive from justice, and the Governors of the States of Iowa and
Nevada abused their discretion in attempting to extradite an alleged offender in the face of a
record failing to show that he was a fugitive from justice.
By the Court, Sweeney, J.:
Petitioner was arrested upon an executive order issued by the Governor of the State of
Nevada upon a requisition of the Governor of Iowa, which alleged that petitioner was a
fugitive from justice from the State of Iowa, duly indicted for obtaining money under false
pretenses by a grand jury in that commonwealth, and requesting that said petitioner be
delivered into the custody of one Peter Arendt, the duly appointed agent of the State of Iowa,
for the purpose of receiving from the authorities of Nevada, and bringing back to Iowa, said
petitioner, to be then and there dealt with according to law. After being arrested on said
executive warrant of the Governor of Nevada, petitioner applied to a justice of this court for a
writ of habeas corpus, alleging that he was illegally restrained of his liberty upon various
grounds, chief of which being that the indictment upon which the requisition of the Governor
of Iowa was based was fatally defective in that it did not charge a crime against said
petitioner in violation of the laws of Iowa, or of the United States, and that the governor
had no jurisdiction to issue his said warrant arresting said defendant, because no
competent evidence was before him that petitioner was a fugitive from justice from the
State of Iowa, or had fled therefrom.
States, and that the governor had no jurisdiction to issue his said warrant arresting said
defendant, because no competent evidence was before him that petitioner was a fugitive from
justice from the State of Iowa, or had fled therefrom.
A writ of habeas corpus was thereupon issued by said justice directed to the said agent of
the State of Iowa, directing him to have the body of said petitioner before this court on a day
certain, to be then and there dealt with as this court may direct, and to show by what authority
he detained the petitioner in custody, and that in the meanwhile the petitioner be released on
bail upon the filing of a good and sufficient bond in the sum of $5,000.
It appeared from the return to the writ that said agent of Iowa had detained said petitioner
by virtue of an executive warrant of the State of Nevada issued upon a requisition warrant of
the Governor of Iowa, but had released said petitioner on bail upon a subsequent order of a
justice of this court pending the return of the writ. Petitioner traverses said return of the writ,
alleging in effect all matters set up in the original petition for said writ, and in addition
pleading that the requisition papers on which the executive warrant of the Governor of
Nevada was issued, certified copies of which were made part of the traverse, were not legally
sufficient to warrant the Governor of Nevada to have issued his warrant. No motion to
dismiss the writ being legally made, the issue presented the court is whether or not the
Governor of Nevada had the legal authority to have issued his executive warrant for petitioner
upon the requisition papers presented to him by the authorities of Iowa.
Before examining the requisition papers upon which the Governor of Nevada issued his
executive warrant, it will be necessary to pass upon the very material and serious objection
raised by the attorney-general in behalf of the state and sustained by many reputable
authorities, as to whether or not a judge or court, upon the hearing of a habeas corpus
proceeding, can go back of the simple requisition and examine the indictment or complaint
charging the crime upon which the defendant is sought to be extradited for the purpose of
passing judgment on the legality or illegality of the indictment or complaint on which the
executive warrant is issued, and by which petitioner is restrained of his liberty, or
whether the court is confined solely to the question as to whether the requisition warrant
is sufficient in form, and states the facts required to be stated in such a warrant to
authorize the petitioner to be held and taken back to Iowa.
the indictment or complaint on which the executive warrant is issued, and by which petitioner
is restrained of his liberty, or whether the court is confined solely to the question as to
whether the requisition warrant is sufficient in form, and states the facts required to be stated
in such a warrant to authorize the petitioner to be held and taken back to Iowa.
Upon this question the decisions of the various courts have not been entirely harmonious.
Article IV, section 2, of the Constitution of the United States, provides that: A person
charged in any state with treason, felony, or other crime, who shall flee from justice and be
found in another state, shall, on demand of the executive authority of the state from which he
fled, be delivered up, to be removed to the state having jurisdiction of the crime.
For many years after the adoption of the Constitution of the United States there was no
legislation providing the mode by which this clause of the constitution should be carried into
effect, and as a natural consequence controversies arose between the states in regard to this
matter, one of which, when the Governor of Virginia declined to comply with the requisition
from the Governor of Pennsylvania, during the administration of President Washington, gave
rise to the passage of the present act of Congress providing for the extradition of fugitives
from justice, which is as follows:
Whenever the executive authority of any state or territory demands any person as a
fugitive from justice of the executive authority of any state or territory to which such person
has fled, and produces a copy of an indictment found or an affidavit made before a magistrate
of any state or territory charging the person demanded with having committed treason, felony,
or other crime, certified as authentic by the governor or chief magistrate of the state or
territory from which the person so charged has fled, it shall be the duty of the chief executive
of the state or territory to which such person has fled to cause him to be arrested and secured
and to cause notice of the arrest to be given to the executive authority making such demand,
or to the agent of such authority appointed to receive the fugitive and to cause the fugitive to
be delivered to said agent when he shall appear.
If no such agent appears within six months from the time of the arrest, the prisoner may be
discharged. All costs or expenses incurred in the apprehending, securing, or transmitting of
such fugitive to the state or territory making said demand shall be paid by such state or
territory. (U. S. Rev. Stats. 5278; U. S. Comp. Stats. 1901, p. 3597.)
Construing this statute in the light of the authorities which I have examined, and the
section of the Constitution of the United States referring to extradition, I believe that the party
sought to be extradited must be charged with the commission of a crime and be a fugitive
from justice to authorize the executive of the state upon whom the demand is made to issue
his warrant, and that the obligation of the executive of a state to deliver up a fugitive from
justice on demand of the executive authority of another state only arises when the fugitive is
charged legally with crime within the state demanding the surrender and having jurisdiction
of the offense, and to be charged with crime means charged in the regular course of law and
in conformity with law. The question as to whether or not a defendant is properly charged
with crime under the laws of the state demanding his extradition is necessarily one of law,
and in accordance with the great weight of authority upon this question, in my opinion,
should at all times be open to judicial inquiry, on a writ of habeas corpus, as to whether or
not he is illegally restrained of his liberty. If the law were otherwise, why accompany the
requisition warrant with any other papers at all? If a defendant is unjustly accused, or illegally
charged, or restrained of his liberty, certainly justice demands that he should not be deprived
of his liberty or removed hundreds or thousands of miles, as the case may be, there to wait or
be put on trial on an illegal charge. The sooner his detention, if it be illegal, is so ascertained,
the better.
If, on the other hand, the defendant is properly charged with crime, and the requisition
papers on which the executive warrant is issued are valid and sufficient, a judge or court will
always remand the defendant to the custody of the agent to whom the executive warrant
commits him. I heartily agree with the opinion rendered in the case of United States v.
Greenhut {D. C.), 51 Fed.
United States v. Greenhut (D. C.), 51 Fed. 206, wherein, on a hearing for the extradition of
the defendant on an application for a warrant of removal, the court said: In a country of such
vast extent as ours it is not a light matter to arrest a supposed offender, and, on the mere order
of an inferior magistrate, move him hundreds and maybe thousands of miles for trial. The law
wisely provides for the previous sanction of a judge to such a removal. Mere technical defects
in an indictment should not be regarded, but a district judge, who should order the removal of
a prisoner when the only probable cause relied on or shown was an indictment, and that
indictment failed to show an offense against the United States, would misconceive his duty
and fail to protect the liberty of the citizen.
While I believe in paying the highest respect to the requisition warrants of chief executives
of other states, and believe that any executive would hesitate before issuing his requisition
warrant knowingly without believing that sufficient and legal grounds existed on which to ask
the extradition of a defendant, yet my regard for the sacred writ of habeas corpus is such that
I would jeopardize the retention of the goodwill of anyone rather than nullify, modify, or limit
in any way the prerogatives of this great writthe greatest bulwark of our libertyand which
gives every person under our glorious government the right to appeal to a judicial tribunal
when restrained of his liberty, and privileged to have the party in whose custody he is
detained directed to produce his body, and show by what right or authority of law he is
depriving him of his liberty.
In Robert v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544, the Supreme Court of the
United States, in passing upon the right of a governor to honor a requisition and issue his
warrant thereon, says: It must appear, therefore, to the governor of a state to whom such a
demand is presented, before he can lawfully comply with it: First, that the person demanded
is substantially charged with a crime against the laws of the state from whose justice he is
alleged to have fled by an indictment or an affidavit certified as authentic by the governor of
the state making the demand; and, second, that the person demanded is a fugitive from the
justice of the state the executive authority of which makes the demand.
and, second, that the person demanded is a fugitive from the justice of the state the executive
authority of which makes the demand. The first of these prerequisites is a question of law and
is always open upon the face of the papers to judicial inquiry on an application for a writ of
habeas corpus.
The Supreme Court of Iowa, in the case of Jones v. Leonard, 50 Iowa, 110, 32 Am. Rep.
116, in an extradition proceeding said: The governor of this state is not clothed with judicial
powers, and there is no provision of the Constitution or of the laws of the United States, or of
this state, which provides that his determination is final and conclusive in the case of the
extradition of a citizen. In the absence of such provision we hold that the decision of the
governor only makes a prima facie case; that it is competent for the court in a proceeding of
this character to inquire into the correctness of his decision and discharge the prisoner.
And in line with these decisions I find the great weight of authority is that in habeas
corpus proceedings a judge or tribunal may go behind the executive warrant and examine into
the sufficiency of the papers upon which it is based and in particular the indictment or
complaint upon which the requisition is made and the executive warrant issued, and, in case
the papers are fatally defective and insufficient, to discharge the prisoner. (In re Terrell, 51
Fed. 213; In re Corning, 51 Fed. 205; People v. Brady, 56 N. Y. 182; Jones & Atkinson v.
Leonard, 50 Iowa, 106, 32 Am. Rep. 116; Church on Habeas Corpus, pp. 821-869; Ex parte
Tod, 12 S. D. 386, 81 N. W. 637, 47 L. R. A. 566, 76 Am. St. Rep. 616; In re Cook, 49 Fed.
839; Ex parte Hart, 63 Fed. 249, 11 C. C. A. 165; In re Mohr, 73 Ala. 503, 49 Am. Rep. 63;
Hartman v. Aveline, 63 Ind. 353, 30 Am. Rep. 217; People ex rel. Corkran v. Hyatt, 172 N.
Y. 176, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. Rep. 706; People ex rel. v. Donohue, 84 N.
Y. 438; Hyatt v. People, ex rel. Corkran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657.)
In that the indictment is the heart of this proceeding and the basis on which this case must
stand or fall, let us examine the indictment in the light of the statute on which it is founded.
The indictment on which petitioner is held is as follows: District Court of the County of
Plymouth. State of Iowa against Ralph E. Waterman. February Term, 1907. State of Iowa,
Plymouth County, ss.: The grand jury of the County of Plymouth, in the name and by the
authority of the State of Iowa, accuse Ralph E. Waterman of the crime of obtaining money by
false pretenses in violation of section 5041 of the Code of Iowa, committed as follows: The
said Ralph E. Waterman, on or about the 5th day of August in the year of our Lord one
thousand nine hundred and four, in the County of Plymouth and State of Iowa aforesaid, then
and there being in said county and state, and then and there being an agent and director and
trustee of the Sioux City and Rock Springs Coal Mining Company, a corporation organized
and doing business under the laws of the State of Wyoming, and then and there duly
authorized to represent said company, and then and there intending unlawfully, feloniously,
designedly, and by false pretenses to cheat and defraud one Andrew Kloster, did then and
there unlawfully, feloniously, falsely, knowingly, and designedly pretend and state unto the
said Andrew Kloster that the said Sioux City and Rock Springs Coal Mining Company was
then and there a corporation with a fully paid up capital stock of $500,000 of the value of
$500,000; that said corporation had practically inexhaustible quantities of bituminous coal
and that its quality was of the best; that an analysis of the coal of said company showed that it
was the equal or better than the Rock Springs and Hocking Valley coals; that he then and
there said that said corporation was the owner of 800 acres of coal land in Wyoming upon
which it was opening a coal mine; that he then and there pretended and stated that the
following was a correct analysis of the said several coals, to wit:
Analysis of the Following Coals:
Rock Hocking Mammoth
Springs. Valley. Vein.
Moisture..................................................................4.32% 5.00% 6.77%
Volatile matter......................................................44.00% 32.80% 38.95%
Fixed carbon.......................................................... 50.05% 53.15% 53.21%
Ash ........................................................................ 1.63% 9.05% 1.07%

_______ _______ _______

Sulphur....................................................................0.00% 0.94%0.59% "That the vein
of coal was twenty feet thick; that said corporation had made ample arrangements for
transportation facilities; that the Union Pacific Railroad Company, upon whose line the
said corporation then owned a mine, was anxious to have all the tonnage it could obtain
from said corporation; that said railroad company had agreed to transport coal from the
mine of said corporation in Wyoming; that there were no elements of chance or
uncertainty regarding said coal proposition; that said company had been organized by
careful, conservative business men, with the sole view of making money for its
stockholders; that all the money which had theretofore been derived from sales of the
stock of said company had been invested and were then being invested in the
development of a coal mine which he then represented that said company was opening
and equipping in the State of Wyoming; that all the money which should be derived from
the sale of stock unto the said Kloster would be invested in the equipment of said mine;
that machinery had been purchased to operate said mine; that relying on said false
pretenses and statements of the said Waterman, he, the said Kloster, then and there
bought five hundred shares of the capital stock of said Sioux City and Rock Springs Coal
Mining Company, which the said Ralph E.
That the vein of coal was twenty feet thick; that said corporation had made ample
arrangements for transportation facilities; that the Union Pacific Railroad Company, upon
whose line the said corporation then owned a mine, was anxious to have all the tonnage it
could obtain from said corporation; that said railroad company had agreed to transport coal
from the mine of said corporation in Wyoming; that there were no elements of chance or
uncertainty regarding said coal proposition; that said company had been organized by careful,
conservative business men, with the sole view of making money for its stockholders; that all
the money which had theretofore been derived from sales of the stock of said company had
been invested and were then being invested in the development of a coal mine which he then
represented that said company was opening and equipping in the State of Wyoming; that all
the money which should be derived from the sale of stock unto the said Kloster would be
invested in the equipment of said mine; that machinery had been purchased to operate said
mine; that relying on said false pretenses and statements of the said Waterman, he, the said
Kloster, then and there bought five hundred shares of the capital stock of said Sioux City and
Rock Springs Coal Mining Company, which the said Ralph E. Waterman then and there
pretended were of the par value of $500, and paid therefor the sum of $250; that the value of
said stock was not then $500, but in truth and in fact it was not to exceed $100; that all of the
foregoing pretenses, statements, and representations so made by the said Ralph E. Waterman
unto the said Andrew Kloster were then and there both false, and said Sioux City and Rock
Springs Coal Mining Company did not then have any title whatever to said land in Wyoming
and did not have a capital stock of $500,000 fully paid up and of the value of $500,000, but
that said stock had been paid for by some leases of coal declaratory statements which had no
value whatever at that time; that said corporation was not the owner of any bituminous coal
whatever, its coal being lignite; that the quality of said coal was not the best, but that it was
inferior to the best coals; that the analysis of said coal was false, and that said coal did not
analyze so as to make a favorable comparison with the Rock Springs and Hocking Valley
coal in respect to moisture and fixed carbon; that the coal of said corporation then
contained at least 15% of moisture, and did not contain in excess of 44% of fixed carbon;
that the vein of coal of said company was not twenty feet thick, but was only eleven feet
thick; that said corporation had not arranged with the Union Pacific Railroad Company or
with any other carrier to transport the coal which it intended to mine; that the Union
Pacific Railroad Company was not then anxious to have any tonnage whatever from said
corporation, but in truth and in fact absolutely refused to haul the coal of said
corporation; that there were then many elements of chance and uncertainty regarding
said coal proposition in this, that said corporation then and there had no title whatever to
any land, had made no arrangement for transportation or equipment, and had not money
enough in the treasury to make such arrangements; that said company was not organized
by careful, conservative business men, and was not organized to make money for its
stockholders, but only for the purpose of selling stock; that the money derived from the
sales of stock were not invested in the development and equipment of the mine of said
corporation, and no machinery was purchased to operate the same; that perhaps 30% of
the money derived from the sale of stock was used to develop the mine, and that all the
remainder was kept by said Waterman and his associates and converted to his own use,
all of which he, the said Waterman, then and there well knew, and who then and there
made the aforesaid false and fraudulent representations, statements, and pretenses, with
the intent then and there and thereby to cheat and defraud the said Kloster of said sum of
money, to wit, $250 as aforesaid, contrary to the statutes in such cases made and
provided and against the peace and dignity of the State of Iowa.
did not analyze so as to make a favorable comparison with the Rock Springs and Hocking
Valley coal in respect to moisture and fixed carbon; that the coal of said corporation then
contained at least 15% of moisture, and did not contain in excess of 44% of fixed carbon; that
the vein of coal of said company was not twenty feet thick, but was only eleven feet thick;
that said corporation had not arranged with the Union Pacific Railroad Company or with any
other carrier to transport the coal which it intended to mine; that the Union Pacific Railroad
Company was not then anxious to have any tonnage whatever from said corporation, but in
truth and in fact absolutely refused to haul the coal of said corporation; that there were then
many elements of chance and uncertainty regarding said coal proposition in this, that said
corporation then and there had no title whatever to any land, had made no arrangement for
transportation or equipment, and had not money enough in the treasury to make such
arrangements; that said company was not organized by careful, conservative business men,
and was not organized to make money for its stockholders, but only for the purpose of selling
stock; that the money derived from the sales of stock were not invested in the development
and equipment of the mine of said corporation, and no machinery was purchased to operate
the same; that perhaps 30% of the money derived from the sale of stock was used to develop
the mine, and that all the remainder was kept by said Waterman and his associates and
converted to his own use, all of which he, the said Waterman, then and there well knew, and
who then and there made the aforesaid false and fraudulent representations, statements, and
pretenses, with the intent then and there and thereby to cheat and defraud the said Kloster of
said sum of money, to wit, $250 as aforesaid, contrary to the statutes in such cases made and
provided and against the peace and dignity of the State of Iowa. [Signed] J. T. Keenan,
County Attorney of Plymouth County, Iowa.
It was stipulated between counsel and admitted in evidence that the statute upon which this
indictment was founded is as follows: If any person designedly and by false pretense, or by
any privy or false token, and with intent to defraud, obtain from another any money,
goods or other property, or so obtain the signature of any person to any written
instrument, the false making of which would be punished as forgery, he shall be
imprisoned in the penitentiary not more than seven years, or be fined not exceeding five
hundred dollars, or imprisoned in the county jail not exceeding one year, or both such fine
and imprisonment."
or by any privy or false token, and with intent to defraud, obtain from another any money,
goods or other property, or so obtain the signature of any person to any written instrument,
the false making of which would be punished as forgery, he shall be imprisoned in the
penitentiary not more than seven years, or be fined not exceeding five hundred dollars, or
imprisoned in the county jail not exceeding one year, or both such fine and imprisonment.
(Code of Iowa, Annotated, 1897, p. 1962, sec. 5041.) The law is thoroughly established, not
only by the common law, but also under constitutional and statutory provisions in all
jurisdictions, that there can be no conviction for or punishment of a crime without a formal
and sufficient accusation; that, in the absence thereof, a court acquires no jurisdiction
whatever, and if it assumes jurisdiction such trial and conviction would be a nullity; that the
accusation must charge an offense; that it must charge the particular offense for which the
accused is to be tried, and it must be made in the particular form and mode required by the
law. And the sixth amendment to the Constitution of the United States declares that in all
criminal prosecutions, the accused shall enjoy the right to * * * be informed of the nature and
cause of the accusation. In the construction of statutes against false pretenses the courts are
uniform in their opinion that these statutes must, as against the defendants, be strictly
construed, and that nothing not within their words will be held within their meaning; while,
on the other hand, in favor of defendants, the construction is liberal.
An examination of the above statute upon which this indictment is founded discloses that
one of the essential ingredients of the crime sought to be alleged is that the party making the
fraudulent representations must obtain from another * * * money, goods or other property,
and an examination of the indictment will reveal that nowhere within said instrument is it
alleged that the petitioner Waterman parted with any stock to Kloster, the complaining
witness, or to any one else, or that said Waterman obtained or received, directly or indirectly,
from Kloster or any one else any money or thing of value in consideration of any stock which
Kloster might have purchased by reason of any of the representations of Waterman.
stock which Kloster might have purchased by reason of any of the representations of
Waterman. Nor does it anywhere appear in the indictment that Kloster purchased from any
agent of said Waterman, or from the company which he is alleged to have misrepresented,
any of the stock which said Waterman is supposed to have fraudulently misrepresented, or
that said Waterman received from any agent or from the company, or from any one else, any
part of the money alleged to have been spent by said Kloster in the purchase of the said stock.
The indictment is entirely silent as to whom Kloster purchased any stock from and in that it
does not specifically allege that the petitioner obtained from Kloster money or some other
thing of value in consideration of the stock alleged to have been fraudulently represented by
Waterman, and that Waterman obtained money or some other thing of value by reason of the
said alleged false pretenses, the indictment does not legally charge the crime intended to be
alleged, or any crime at all, against Waterman, and is therefore fatally defective and void. The
authorities are uniform in holding that the obtaining and possession of something of value is
an essential ingredient of the crime of obtaining money, goods or other property, under false
pretenses, and where this essential ingredient is lacking there is no crime. (State v. Anderson,
47 Iowa, 142; State v. McGinnis, 71 Iowa, 685, 33 N. W. 338; State v. Clark, 71 Iowa, 30, 33
N. W. 340; Bracey v. State, 64 Miss. 26, 8 South. 165; Jamison v. State, 37 Ark. 445, 40 Am.
Rep. 103; Willis v. People, 19 Hun, 84; State v. Lewis, 26 Kan. 123; Connor v. State, 29 Fla.
455, 10 South. 891, 30 Am. St. Rep. 126; In re Lucre, 23 Am. Dig. col. 694.)
The indictment is faulty in other respects. For instance, it is a well-settled rule of law that
an indictment for the obtaining of money or other thing of value by false pretenses must state
with the same certainty the money or thing of value alleged to have been fraudulently
obtained, and be pleaded with the same legal precision as is required in an indictment for
larceny. The indictment in the present case nowhere alleges what character of money was
alleged to have been fraudulently obtained, and, in accordance with the following authorities
sustaining the rule above named of pleading an indictment for obtaining money under
false pretenses, is also defective: People v. Ball, 14 Cal.
the following authorities sustaining the rule above named of pleading an indictment for
obtaining money under false pretenses, is also defective: People v. Ball, 14 Cal. 101, 73 Am.
Dec. 631; Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; Smith v. State, 33 Ind. 159;
Jamison v. State, 37 Ark. 445, 40 Am. Rep. 103; Connor v. State, 29 Fla. 462, 10 South. 891,
30 Am. St. Rep. 126; Lord v. State, 20 N. H. 404, 51 Am. Dec. 231; Treadway v. State, 37
Ark. 443; Sullivan v. State, 44 Fla. 155, 32 South. 106.
For the foregoing reasons I am of the opinion that the indictment on which the requisition
of the Governor of Iowa is based is fatally defective and void, and that the executive warrant
issued by the Governor of Nevada upon the said requisition warrant of the Governor of Iowa
was issued without authority of law.
It is therefore ordered that the petitioner be discharged forthwith from custody, and that his
bondsmen be released of all responsibility by reason of the bond furnished in accordance with
an order of this court made pending the determination of this proceeding.
____________
29 Nev. 303, 303 (1907)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1907.
____________
29 Nev. 303, 303 (1907) Young v. Updike
[No. 1707.]
ELIZA YOUNG, as Administratrix of the Estate of Frank Singleton, Deceased, Respondent,
v. F. C. UPDIKE, as Administrator of the Estate of F. X. Lambert, Deceased, Appellant.
1. AppealPerfecting AppealRules of Court. Under Supreme Court Rules 2 and 3,
providing for the dismissal of an appeal where the transcript of the record has not been filed within the
time specified, an appeal from a judgment will be dismissed where no statement or bill of exceptions was
served or filed, and where appellant never requested that a transcript of the record be forwarded to the
supreme court, nor attempted to perfect the appeal, other than to file the notice of appeal and the
undertaking.
2. Same. Under Comp. Laws, 3427, et seq., providing that where appellant does not agree to the amendments to
the statement on appeal proposed by respondent, he must within two days serve notice on respondent that
the proposed statement and amendments will be presented to the judge for settlement. On counsel failing to
agree on the statement and certifying to such fact, the same could be submitted by either party to the trial
judge for settlement.
3. Same. Where there has been unwarranted delay in a settlement of the statement on appeal from an order
striking out the statement on motion for new trial, the trial court is the forum in which to seek redress.
Washoe County; M. A. Murphy, Judge.
Action by Eliza Young, Administratrix of the Estate of Frank Singleton, deceased, against
F. C. Updike, Administrator of the Estate of F. X. Lambert, deceased. From a judgment for
plaintiff, defendant appeals. Heard on motion of plaintiff to dismiss appeals taken by
defendant from the judgment, and from an order striking out the statement on motion for a
new trial. Motion to dismiss appeal from judgment. Granted. Motion to dismiss appeal from
order. Denied.
J. T. Boyd and A. N. Salisbury, for Appellants.
George D. Pyne and Mack & Farrington, for Respondents.
This is a motion upon behalf of plaintiff to dismiss appeals taken by defendant from the
judgment and from an order striking out the statement on motion for a new trial, upon the
ground of want of prosecution. Rule 2 of this court provides that: In all cases where an
appeal has been perfected, and the statement settled (if there be one) thirty days before the
commencement of a term, the transcript of the record shall be filed on or before the first day
of such term. Rule 3 makes provision for the dismissal of the appeal if the transcript of the
record is not filed within the time prescribed by rule 2. Appellant filed his notice and
undertaking on appeal from the judgment on the 2d day of November, 1905. No statement or
bill of exceptions on appeal from the judgment was ever served or filed. Appellant has never
requested that a transcript of the record on appeal from the judgment be forwarded to this
court, or attempted in any way to perfect such appeal other than to file the said notice and
undertaking.
Counsel for appellant does not oppose the dismissal of the appeal from the judgment, and
it is clear that it ought to be dismissed. On the 19th day of April, 1905, the trial court entered
an order striking out defendant's proposed statement on motion for new trial. On the 19th day
of May, 1905, defendant {appellant herein) filed and served a notice of appeal from the
order striking out the proposed statement, and on the 23d day of May following filed an
undertaking on appeal.
1905, defendant (appellant herein) filed and served a notice of appeal from the order striking
out the proposed statement, and on the 23d day of May following filed an undertaking on
appeal. On the 19th day of May, 1905, defendant filed and served what is denominated
Defendant's Proposed Bill of Exceptions. On the 30th day of June, 1905, the plaintiff filed
and served Proposed Amendments to Defendant's Proposed Bill of Exceptions. Since the
filing of these papers nothing appears to have been done by either party to have the so-called
bill of exceptions settled so that the same might be forwarded to this court. There seems to
have been some misunderstanding by both parties regarding the proper method of procedure
in the lower court. What the defendant has denominated his Proposed Bill of Exceptions is
in reality a proposed statement on appeal from the order striking out the proposed statement
on motion for a new trial and is governed by section 332, et seq., of the civil practice act
(comp. Laws, 3427, et seq.).
By the provisions of sections 332 and 333 of the civil practice act the appellant, if he does
not agree to the proposed amendments, is required within two days to serve notice upon the
respondent that the proposed statement and proposed amendments will be presented to the
judge who tried the case for settlement, or he will be deemed to have agreed to the proposed
amendments. In this matter the appellant did not give such notice, and he is deemed to have
agreed to the proposed amendments. Under this state of facts, if counsel could not agree upon
the statement and certify to such fact, the same could have been submitted by either party to
the judge to be by him corrected, if the same contained any misstatements of his rulings, and
by him certified as having been allowed and that it is correct. All that was necessary to be
done in this case to have the statement settled and certified was to submit the proposed
statement and amendments to the judge who tried the cause, which submission could have
been made to the judge in any part of the state. (Comp. Laws, 2573.) If there has been
unwarranted delay in the settlement of the statement on appeal from the order striking out the
statement on motion for new trial, the court below is the proper forum in which to seek
redress.
trial, the court below is the proper forum in which to seek redress. (McGrath v. Hyde, 71 Cal.
454, 12 Pac. 497.)
The motion to dismiss the appeal from the judgment is granted.
The motion to dismiss the appeal from the order striking out the statement on motion for a
new trial is denied.
It is further ordered that the original papers in this cause, filed with this court upon the
hearing of the motion, be returned to the trial court.
Talbot, C. J.: I concur.
Sweeney, J., did not participate in the foregoing opinion; the cause having been submitted
during the October term, 1906.
____________
29 Nev. 306, 306 (1907) Phenix v. Frampton
[No. 1709.]
GEORGE S. PHENIX and MAY L. PHENIX, His Wife, Respondents, v. A. E. FRAMPTON,
Appellant.
1. InjunctionRestraining Erection of BuildingDissolving Temporary Order. Where it is
alleged by the complaint and admitted by the answer that defendant is erecting a building of a substantial,
permanent character, and by the allegations of the complaint the title, possession, and right of possession of
the land are in plaintiff, and by those of the answer they are in defendant, a temporary injunction against
the completion of the building is proper, and will not be dissolved pending final determination of the
action; but the defendant will not be prohibited from entering.
Esmeralda County, Nevada; M. A. Murphy, Judge.
Action by George S. Phenix and his wife against A. E. Frampton. From an order refusing
to dissolve a temporary injunction, defendant appeals. Modified.
Charles S. Wilson, William B. Ogden, and James K. Redington, for Appellant:
I. The suit, both in form and effect, is one to quiet title. The record shows that the
complainants are out of possession. To this effect is the complaint itself, and for this reason it
was undoubtedly demurrable.
was undoubtedly demurrable. The allegation of paragraph 1 is that complainants, at and
before suit, were possessed of the premises; but that is followed by the allegations of
paragraph 3, distinctly and specifically showing possession by defendant at and for a long
time prior to commencement of suit. The affidavits filed by defendant with his motion to
dissolve the injunction show sole and exclusive possession by defendant, and no possession
by complainants, since about March 1, 1905, and these affidavits are not in this regard, or in
any way as to actual possession, denied by the counter-affidavit of the complainants. The
answer denies any possession by the complainants and avers exclusive possession in the
defendant. It must, therefore, be taken as established that complainants were out of possession
at, and for a long time prior to, the commencement of the suit. Under such circumstances the
suit cannot be maintained and the injunction should be dissolved. (Comp. Laws, 3351-3360;
Low v. Staples, 2 Nev. 209; Blasdel v. Williams, 9 Nev. 161; Scorpion Co. v. Marsano, 10
Nev. 370.)
II. The complainant has complete and adequate remedy at law for the recovery of possession
and for damages, if any, sustained. Under such circumstances injunction should not have
issued, and should now be dissolved. (Comp. Laws, 3822-3834; Sherman v. Clark, 4 Nev.
138; Conley v. Chedic, 6 Nev. 222.)
III. Even if the suit be otherwise well founded, still the damages alleged, or by any possibility
resulting, are not irreparable and injunction cannot under such circumstances be sustained. In
this regard mere allegations of irreparable damages are not sufficient. The complaint must
affirmatively establish necessary facts to show that the injury will be irreparable. (Thorn v.
Sweeney, 12 Nev. 251, 13 Nev. 415; Rivers v. Burbank, 13 Nev. 398; Hoye v. Sweetman, 19
Nev. 376.) The injunction must be dissolved upon the answer filed denying all material
allegations of the complaint. (Lady Bryan Co. v. Lady Bryan M. Co., 4 Nev. 414; Magnet Co.
v. Page, 9 Nev. 346; Perley v. Forman, 7 Nev. 309.)
IV. The court will not upon the case as here presented undertake to decide between the
conflicting claims of the parties to the land in suit.
parties to the land in suit. Each is asserting title under the laws of the United States, and their
respective claims are pending in the special tribunal created by law for their adjudication, the
Land Department of the Federal Government. Pending final action by that tribunal and the
issue of evidence of title by the United States to one or the other of such parties, this court
will not attempt to adjudicate the conflicting titles. But this court will, for the purposes of this
case, take judicial notice of the fact that the decision of the land department, so far as the
prosecution of said claims therein has progressed, sustains the claim and title of appellant,
and directs the judge of the district court from which this appeal is taken, as trustee for
appellant, to proceed, under the statute, to perfect said claim and to convey to appellant,
under the town-site laws, the paramount title of the United States. Under such circumstances,
this court will not, by injunction or otherwise, restrain the appellant from doing all or any of
the things which the laws of the United States permit or require him to do as an occupant of
public lands under the town-site law.
Thompson, Morehouse & Thompson, for Respondents:
I. The plaintiffs' rights rest upon a valid mining location. Their affidavits show beyond
question the validity of their location, and the defendant's affidavit only denies the validity
thereof upon information and belief, and we need not cite authorities to show that a denial
upon information and belief of matters which are of public record is no denial at all. The
plaintiffs' affidavits show that their location was a matter of public record two years before
the defendant sought to set up any claim; therefore, neither the answer nor the affidavit denies
specifically and positively the ownership, possession, or right to the possession in the
plaintiffs. The motion, therefore, cannot prevail and should be denied.
II. But, it is said, it appears from the record in this case that plaintiffs are out of
possession, and therefore cannot maintain the action. It is true that in this state that the action
to quiet title cannot be sustained by a party out of possession. But the assertion that the record
so shows is not true.
not true. The affidavits of the plaintiffs show they have, own, and possess the Montezuma
mining lode claim; that these lots are part of that mining claim, and, as they possess that
mining claim, the possession of a part extends to the whole claim, and it is well established
that a possession of a part of a claim is possession sufficient to maintain the action to quiet
title to the whole. (Rose v. Richmond M. Co., 17 Nev. 25; Roberts v. N. P. R. Co., 158 U. S.
1.) The affidavit of the defendant nowhere shows that he lives upon or occupies the lots in
questiononly that he is building upon the lots, and his denial of possession in the plaintiffs,
which denial is everywhere modified by a statement of facts showing only a trespass and
claim, makes the record clear, and the possession is in the plaintiffs.
III. It is next argued that the damages are not irreparable. Now, damages, to be
recoverable at law, must be damages capable of legal computation. If you cannot legally fix
some definite positive rule whereby damages may be estimated and justly fixed and
established, you cannot recover at law. When you cannot recover at law, then equity steps in
and says the damages are irreparable, because the action at law must give full and adequate
relief, and the damages must be susceptible of perfect pecuniary compensation. This is the
gist of all authorities. (Pomeroy, Eq. Juris., vol. 4, sec. 1338.)
IV. That an injunction lies to prevent a cloud upon title is well settled. While the usual
rule is that a cloud upon title means a claim upon an outstanding instrument apparently valid
on its face, yet certainly an injunction lies to prevent steps, which, if continued, would create
the cloud upon the title. That such action lies, see Pomeroy's Equity Jurisprudence (sec. 1345,
p. 2678) where he says: The use of the injunction to prevent acts which would create a cloud
upon title is governed by the same rules which control the remedy of removing a cloud from
title. Now, if defendant should be permitted to complete his building and enter into the
possession and occupancy thereof, and go on and procure, with the assistance of others, a
patent to these lots under the town-site law, and get his deed from the district judge, would
not that cloud the title by an outstanding instrument apparently valid on its face, and
constitute a cloud?
instrument apparently valid on its face, and constitute a cloud? Most assuredly it would. Then
equity takes and will take jurisdiction and restrain and prevent by injunction, without any
consideration of damages, because the cause is per se, in equity. Again, the building of a
permanent structure, the entry into it, and occupancy thereof, is an appropriation of the land, a
complete destruction of the estate and a segregation thereof from the remainder. (Scudder v.
T. D. Falls Co., 1 Saxt. Ch. 694.)
V. The next point urged is that the court will not in this action decide the title of the land
and say each is asserting title under the laws of the United States and their respective claims
are pending in the Land Department of the Federal Government. Such, however, is not the
case. It could not be the case, because section 2386, Rev. Stats. U. S., says: Where mineral
veins are possessed, which possession is recognized by local authority, and to the extent so
possessed and recognized, the title to town lots to be acquired shall be subject to such
recognized possession and the necessary use thereof. That is to say, a town site cannot take
and include a valid mineral location, because the minute the location has been made that
moment the land is segregated from the public domain, and the possession and the right to the
possession pass to the locator exclusively under section 2322, Rev. Stats. U. S., and no
person can initiate a right by trespassing upon such possession. (Campbell v. Rankin, 99 U. S.
261; Hawxhurst v. Lander, 28 Cal. 331; Hawes v. Victoria Co., 160 U. S. 303; Nevada Co. v.
Home Co., 98 Fed. 674; Kirk v. Meldrum, 65 Pac. 634; Phenix Co. v. Lawrence, 55 Cal. 143;
Weese v. Barker, 7 Colo. 178; Craig v. Thompson, 10 Colo. 517; Zellers v. Vanina, 134 Fed.
610; Rogers v. Cooney, 7 Nev. 213; Golden F. Co. v. Cable Con., 12 Nev. 312; Belk v.
Meager, 104 U. S. 279.)
VI. No proceeding for a town site can retake the land thus withdrawn, and beyond the
jurisdiction of the land department, and give it to anyone else. The land being withdrawn
from the public domain, by reason of a valid location, under the mining laws, is beyond the
jurisdiction of the land department, except by adverse claim if the locator applies for patent,
and then the land department cannot try the issue, but must send the issue, under section
2326, Rev. Stats. U. S., to the courts for trial, because the trial of the possession is beyond
the jurisdiction of the land department.
patent, and then the land department cannot try the issue, but must send the issue, under
section 2326, Rev. Stats. U. S., to the courts for trial, because the trial of the possession is
beyond the jurisdiction of the land department. This is no novel question, but is fully settled
by judicial decision.
VII. The question is settled by the highest judicial authority that a valid mining location
cannot be included in a town-site patent; that such inclusion is beyond the jurisdiction of the
land department; that the mining locator has no duty to adverse the town-site application.
Because, therefore, as he need not adverse nor take any notice of the town-site application,
because the land department has no jurisdiction over him in town-site proceedings, it must be
apparent that there is no proceeding pending in the land department which in any manner
affects the rights of respondents herein, and that the whole defense set out and claimed by the
defendant is no defense, and has no merit whatever. The defendant and appellant is simply
and plainly seeking to initiate a right to lands in the possession of another, without even the
semblance of law or justice or good faith. If he was in actual possession, he would be simply
a jumper, taking matters in his own hands, disregarding law and those sacred rights of
property which equity ever grants and protects.
Charles S. Wilson, William B. Ogden, and James K. Redington, for Appellant, in reply:
I. It is admitted by respondents that the suit is one to quiet title, and that such a suit cannot
be maintained, under the laws of this state, by a party out of possession. This admission it was
impossible to avoid under the three decisions of this court cited in our opening brief: Low v.
Staples, 2 Nev. 209; Blasdel v. Williams, 9 Nev. 161; Scorpion Co. v. Marsano, 10 Nev. 370.
Attempt to avoid the effect of this plain principle of law is, however, made by a claim that
although the appellant, as clearly shown by the record, had been in the sole, exclusive, and
actual possession of the premises in suit for a year and nine months prior to the
commencement of this action, and so remained when action was brought, yet that
respondents, because of their asserted claim to the Montezuma lode mining claim and
possession of certain other portions of the surface ground appertaining thereto, have, by
some curious sublety of the law, constructive possession of the ground here in suit which
is in the actual possession of the appellant.
was brought, yet that respondents, because of their asserted claim to the Montezuma lode
mining claim and possession of certain other portions of the surface ground appertaining
thereto, have, by some curious sublety of the law, constructive possession of the ground here
in suit which is in the actual possession of the appellant. This, say our opponents, entitles
respondents to maintain suit to quiet title. As to the facts shown by the record there can be no
legitimate contention. Frampton entered into actual possession of the lots in dispute, then
entirely unoccupied by anyone, about March 1, 1905, and has ever since continuously
remained in the sole, exclusive, and actual possession of the same. The respondents have
never, for a day or an hour, since said date, been in the actual possession of the same, or any
portion thereof. All this is shown beyond question by the record.
II. The rule which dissolves an injunction upon the incoming of an answer denying all the
equities of a bill is well established and is directly announced in the decisions of this court
cited in our brief. (Lady Bryan Co. v. Lady Bryan M. Co., 4 Nev. 414; Magnet Co. v. Page, 9
Nev. 346; Perley v. Forman, 7 Nev. 309.) The answer of respondents to this proposition is a
claim that in the case at bar the answer does not fully deny all such equities. We submit that it
is an absolute and full denial of every averment, modified only by setting out the claim of the
appellant to meet the facts. The legal effect of the answer is to traverse every averment
favoring the defendant.
III. It is claimed by our opponents that a mineral location, from the moment it is made,
segregates the land from the public domain, and that thereafter no portion of its surface
ground can be included in a town-site claim. That is the gist of the proposition argued so far
as it has any applicability to or affects the case at bar.
IV. Davis v. Weibbold, 139 U. S. 507, is authority against the proposition, and is
hereinafter cited to that effect. The claim, in this regard, made by our opponents, without the
support of a single direct authority, we meet by counter authority, both departmental and
judicial, finally and definitely deciding that a mineral location is not, as against town-site
settlement and claim, an appropriation of the land; that town sites can be located upon
mineral locations, and that such town sites, so located, can be patented, notwithstanding
the mineral claim.
nitely deciding that a mineral location is not, as against town-site settlement and claim, an
appropriation of the land; that town sites can be located upon mineral locations, and that such
town sites, so located, can be patented, notwithstanding the mineral claim. (Rico Townsite, 1
L. D. 556; Esler v. Cooke Townsite, 4 L. D. 212, and cases cited on page 214; Duffy Quartz
Mine, 18 L. D. 259; Pacific Slope Lode v. Butte, 25 L. D. 518; Gregory Lode Claim, 26 L. D.
144; Lavangino v. Utley, 168 U. S. 342; Huling v. Ward Townsite, 29 L. D. 21; Bradt v.
Harris et al., 29 L. D. 426-433; Leland v. Townsite of Saltese, 32 L. D. 211; Telluride
Townsite, 33 L. D. 542; Mining Company v. Consolidated Company, 102 U. S. 168; Steel v.
St. Louis Smelting Co., 106 U. S. 447; Deffeback v. Hawke, 115 U. S. 392; Davis v.
Weibbold, 139 U. S. 507; Dower v. Richards, 151 U. S. 658, 663.)
This is an appeal from an order refusing to dissolve a temporary injunction. In the
complaint it is alleged that the plaintiffs are the owners and in possession of Lots 1 and 2 in
Block 12 in Phenix's North Addition to the Town of Goldfield; that the same are a part of the
Montezuma mining claim; that the defendant, disregarding the possession of the plaintiffs, on
or about the 1st day of October, 1906, entered upon the premises and commenced to dig up
and sink and excavate a cellar and to build and construct, and at the time of filing the
complaint was building and constructing, a large and commodious dwelling house thereon of
a permanent character, with the intention to occupy and possess the same without the consent
of the plaintiffs, which improvements when completed would become in time an easement
and affect the title and right of possession of the plaintiffs to the premises, and be the
foundation of an adverse claim; that defendant threatens to continue to dig up and disturb and
excavate the soil, and to continue the erection of the building, and to dispossess plaintiffs and
set up an adverse title. Following the demand in the complaint, and upon the giving of an
undertaking in the sum of $5,000, the district court made a temporary order restraining
defendant from entering upon the premises, and from digging or excavating on the land,
and from building or constructing any dwelling house or other structure or fixture
thereon, and from committing any act of trespass.
the premises, and from digging or excavating on the land, and from building or constructing
any dwelling house or other structure or fixture thereon, and from committing any act of
trespass. Defendant filed a verified answer denying that the plaintiffs were the owners or
entitled to possession of the land, and alleging that the defendant was the owner and in the
actual, undisturbed, peaceful possession of these lots under sections 2387 and 2389,
inclusive, of the Revised Statutes of the United States (U. S. Comp. Stats. 1901, pp. 1457,
1458), and by reason of an application for a town site upon the public domain made by the
defendant and numerous other persons through the district judge as trustee, which application
had been entertained by the Commissioner of the General Land Office. It is also averred in
the answer that the defendant entered upon and took possession of the premises in 1905, and
erected thereon a store building and dwelling house of the value of about $1,000, that about
the 1st day of October, 1906, he moved this building back to the alley line; and that as
averred in the complaint he commenced the erection upon the lot in dispute of a large and
commodious dwelling house to consist of two stories and basement, the basement constructed
with stone walls in size 20 by 30 feet, the superstructure two stories high, 30 by 80 feet,
lathed and plastered, to cost $6,000, and that about $4,000 had been expended thereon at the
time of filing the complaint and issuance of the injunction. It is admitted in the answer that
these improvements are of a permanent character. The defendant moved to dissolve the
preliminary restraining order upon affidavits following partly the denials and allegations of
the answer and relating to the condition and value of the improvements, to which
counter-affidavits were filed, and the appeal is from the order denying this motion.
It will be seen that the question involved is whether the court may properly restrain the
completion of a building of a substantial, permanent character pending the final determination
of the action, when the right and title to the land upon which it stands are clearly in issue. On
behalf of the appellant it is urged that the plaintiffs are out of possession, that if they are
entitled to any relief they have a full and adequate remedy at law, that the injury to the
property is not irreparable, that all the material averments contained in the complaint are
fully denied by the answer, and that from the facts in the record and those of which the
court below took judicial notice the claim of the defendant is at least presumptively valid,
and that for any one of these reasons the injunction should have been dissolved.
adequate remedy at law, that the injury to the property is not irreparable, that all the material
averments contained in the complaint are fully denied by the answer, and that from the facts
in the record and those of which the court below took judicial notice the claim of the
defendant is at least presumptively valid, and that for any one of these reasons the injunction
should have been dissolved. The claim that respondents are out of possession is contrary to
the allegations of the complaint, and cannot be assumed by the court until this questionthe
same as others in issuehas been determined upon the trial. (Rose v. Richmond M. Co., 17
Nev. 56, 27 Pac. 1105.)
As to the contention that appellants were entitled to have the restraining order dissolved on
the denials in the answer, the facts warranting the injunction, if one is proper to restrain the
erection of permanent buildings, are shown and admitted by the pleadings. That the opposing
parties are claiming the right and title to, and possession of, the land is clear. Both the
complaint and answer allege, and neither denies, that this extensive building is under
construction, and that, unless restrained, the defendant will bring it to completion. It may be
said then that all the facts essential to the granting of the temporary injunction are undisputed.
However squarely the issue may be drawn with regard to the ownership and possession, and
regardless of whether the affidavits presented on the motion to dissolve be ignored, the
uncontroverted showing that the title and right of possession are contested, and that unless
restrained the defendant will erect a building of a substantial, permanent character on these
lots, is sufficient to support an order for the preservation of the property and enjoining the
erection of the building until the title and right to the land can be adjudicated. This may
enable the prevailing party, whoever he may be, to finally come into his own without further
change or alteration. If facts are alleged which, if established on the trial, would warrant a
permanent injunction, it would seem that generally the conditions which would make the
final injunction effective ought to be maintained until trial can be had.
It is a well-recognized rule that courts of equity will preserve the status of the property
in dispute pending litigation, and the authorities generally hold that equity will restrain
extensive excavations and the erection of walls and permanent buildings.
serve the status of the property in dispute pending litigation, and the authorities generally hold
that equity will restrain extensive excavations and the erection of walls and permanent
buildings. The legal principle involved is well expressed by the following extracts from
decisions in other jurisdictions:
Southmayd v. McLaughlin, 24 N. J. Eq. 181: The defendant has not only pulled down the
fence, but has proceeded to excavate the land, and drive piles there for his foundation. * * * It
is within the province of this court to arrest his progress in the trespass, at least until he shall
have established his right at law. (Varick v. Corporation of New York, 4 Johns. Ch. 55;
Jerome v. Ross, 7 Johns. Ch. 315; Farron v. Van Sittart, 1 Eng. R. & C. Cases, 602; High on
Injunctions, 477, 483.) * * * In Farron v. Van Sittart the court restrained the defendants from
committing a trespass, though it was merely the leveling of farm land for the laying of a
railway track, or, as the lord chancellor expressed it, making level ground of that of which
there is at present no portion level.' In the present case the trespass goes to the destruction of
the inheritance. The defendant is not only proceeding to dig away the soil of the land in
possession of the complainants, but is about to take exclusive possession of it with a
permanent structure.
Chicago, Burlington and Quincy Ry. Co. v. Porter Bros. & Hackworth, 72 Iowa, 426, 34
N. W. 286: It is further claimed that injunction is not the proper remedy; that the action
should have been at law for damages. We do not think this position is well taken. There can
be no doubt that equity will enjoin encroachments upon land by making excavations, erecting
permanent buildings, and the like.
Long v. Ragan, 94 Md. 462, 51 Atl. 181: It is clear, we think, that a trespass of this
character works a destruction of the property as it had been held and enjoyed by the owner
and that full and adequate relief could not be had at law. In Herr v. Bierbower, 3 Md. Ch.
458, the chancellor said: Taking possession of a portion of their lot and digging upon it a
foundation for a building and erecting a building upon that foundation, thereby reducing the
front of the lot so as to prevent their building upon it themselves, in the mode which
would be most advantageous, surely goes to the destruction, pro tanto, of the estate, and
injures the just enjoyment of the property in the future.'"
so as to prevent their building upon it themselves, in the mode which would be most
advantageous, surely goes to the destruction, pro tanto, of the estate, and injures the just
enjoyment of the property in the future.'
In the latter case it was held that an injunction will not be granted to restrain a mere
trespass, where the injury is not irreparable and destructive to the plaintiff's estate, but is
susceptible of perfect pecuniary compensation, in the ordinary course of law; that if the
trespass goes to the destruction of the inheritance, or the mischief be not susceptible of
perfect and adequate pecuniary compensation at law, or if the acts done or threatened to the
property be ruinous, or irreparable, or impair its just enjoyment in future, the courts of equity
will, without hesitation, interfere by injunction.
In Church v. Joint School District, 55 Wis. 399, 13 N. W. 272, the school board were
enjoined from erecting a school house. The court said: The principle of these cases is that
an attempt to enter upon and take permanent possession of land for public use without the
assent of the owner, and without the damages having been ascertained and paid or tendered,
is, or would be, if consummated, in the nature of an irreparable injury, for the prevention of
which the writ of injunction constitutes the proper remedy.' This principle was first applied in
a case closely analogous to this, in which a town threatened to take land for the purposes of a
highway. (Norton v. Peck, 3 Wis. 714.) Then it was applied by analogy to the threatened
taking of land by a railroad company for the use of its road in Shepardson v. M. & B.
Railroad Co., 6 Wis. 605, and again applied in Powers v. Bears, 12 Wis. 214, 78 Am. Dec.
733, and lastly in Diederichs v. N. W. U. Railway Co., 33 Wis. 219.
In Clayton v. Shoemaker, 67 Md. 216, 9 Atl. 635, it was held that there should be a
temporary injunction prohibiting the defendant from proceeding with the erection of his
building until the title had been decided in a court of law.
In Newell v. Sass, 142 Ill. 104, 31 N. E. 176, an injunction was granted to prevent the
completion of a threatened injury which had been commenced by excavating and starting to
build a fence. At section 707, High on Injunctions, 3d ed., it is said: "Where the trespass
complained of consists in the erection of buildings upon complainant's land, a distinction
is taken between the buildings when in an incomplete and when in a finished state.
build a fence. At section 707, High on Injunctions, 3d ed., it is said: Where the trespass
complained of consists in the erection of buildings upon complainant's land, a distinction is
taken between the buildings when in an incomplete and when in a finished state. And while
the jurisdiction is freely exercised before the completion of the structures, yet if they have
been completed the relief will generally be withheld, and the person aggrieved will be left to
his remedy by ejectment. (Sherman v. Clark, 4 Nev. 139, 97 Am. Dec. 516.)
Other citations may be found in 22 Cyc., which sustain the statement in the text at page
760, that if the act sought to be enjoined and the injury resulting are continuing in their
nature, or if the injurious act has not been completed, an injunction is proper, but not so
against an ordinary or naked trespass (page 827), and at page 834: Encroachment on the land
of another by erecting permanent buildings or walls is such a destruction of the inheritance as
may be enjoined. Decisions also applicable are: Miller v. Lynch, 149 Pa. 460, 20 Atl. 80;
Kaiser v. Dalto, 140 Cal. 167, 73 Pac. 828; More v. Massini, 32 Cal. 590; Baron v. Korn,
127 N. Y. 220, 27 N. E. 804; Switzer v. McCulloch, 76 Va. 777.
In line with other cases holding that mere trespass and occupation without acts injurious to
the inheritance will not be temporarily restrained, it was held in White v. Booth, 7 Vt. 130,
that the use of a church already completed would not be enjoined pending trial of title to the
land. (Amelung v. Seekamp, 9 Gill & J. 468.) In Waddingham v. Robledo, 28 Pac. 663, 6 N.
M. 347, the defendants were allowed to retain the possession and use of ditches and
improvements, but restrained from making others pendente lite.
In view of the denials and allegations of the answer, until it is ascertained upon the trial
whether the defendant is the owner or entitled to the possession of the premises, it is
premature to assume that his entry would be a trespass. It would be otherwise if the answer
admitted that plaintiffs were the owners and entitled to the possession of the land. The order
properly enjoined the erection of the building, but it is too broad in restraining defendant from
entering the premises in dispute. The court may properly prohibit either or both parties from
erecting permanent buildings, or committing waste, or doing acts which may cause
irreparable injury, but under the facts as shown there is no more reason for enjoining one
of the parties from entering the premises than for restraining all.
or both parties from erecting permanent buildings, or committing waste, or doing acts which
may cause irreparable injury, but under the facts as shown there is no more reason for
enjoining one of the parties from entering the premises than for restraining all. The defendant
likewise is entitled to have the property protected until the determination of the suit, and may
wish to enter the premises for the preservation of the structure, which he has partly erected at
the alleged expense of $4,000, and in the protection of which he may be more interested than
the respondents who object to its completion. In Silver Peak Mines v. Hanchett, 93 Fed. 78,
with citation of authorities, it was said that the rule is well settled that an injunction
prohibiting any interference with the status of property pending litigation does not prevent
any party having an interest from doing whatever is reasonably necessary for its preservation.
We realize that the temporary restraining order prohibiting the defendant from completing
the building until trial can be had and the title and right of possession to the land determined
may result in considerable damage to the defendant if he succeeds in establishing his claim to
the lots, but, as no suggestion is made to the contrary, we assume that the $5,000 bond given
is ample for his protection in this regard. The Nevada cases upon which appellant relies did
not relate to town lots or buildings, and may be distinguished in other ways from the one now
before the court. The same reasons do not exist for enjoining the construction of a ditch
across barren and rocky land in the country not shown to be valuable for building or
agricultural purposes, and when the ditch had been partly built by consent, and the damage to
the land was only five dollars, as in Hoye v. Sweetman, 19 Nev. 377, or steps had been taken
to condemn a right of way for a ditch for supplying water to the inhabitants of a city, which
would only nominally injure land of little value, as in Thorn v. Sweeney, 12 Nev. 254; 22
Cyc. p. 829; Waldron v. Marsh, 5 Cal. 119; Crescent M. Co. v. Silver King M. Co., 17 Utah,
444, 54 Pac. 244, 70 Am. St. Rep. 810.
The district court is directed to so modify the temporary injunction that it will not prohibit
the defendant from entering, but will restrain him from digging, excavating, building, or
constructing any dwelling house or other structure or fixture, or committing any injury,
on the premises described in the complaint.
ing, but will restrain him from digging, excavating, building, or constructing any dwelling
house or other structure or fixture, or committing any injury, on the premises described in the
complaint. The costs of this appeal are to abide the final result of the action.
____________
29 Nev. 320, 320 (1907) State v. Hennessy
[No. 1697.]
THE STATE OF NEVADA, Respondent v. JOHN H.
HENNESSY, Appellant.
1. HomicideDying DeclarationsSense of Impending Death. Where, on a trial for murder,
it was shown that decedent, directly after the shooting said: Boys, I am mortally wounded; I am all in;
and then made a statement with respect to the circumstances of the killing, and that death followed within a
little over two days, a sufficient predicate was laid for the admission of the statement as a dying
declaration.
2. SameEvidenceAdmissibilityThreats. Where, on a trial for murder, it was contended
that defendant acted, not only in defense of himself, but also in defense of another, it was competent to
show threats made against the life of such other by decedent or by others in association with him, and that
the threats were communicated to defendant, though no threats were made against defendant.
3. SameJustifiable HomicideDefense of Another. Where one believes as a reasonable
man that another who has been assaulted is in danger of losing his life, or of suffering great bodily harm,
he has the same right to defend such other as the latter would have to defend himself.
4. Criminal LawTrialInstructionsDuty of Juror. An instruction requested on a criminal
trial that if, after a consideration of the whole case, any juror should entertain a reasonable doubt of
defendant's guilt, it was his duty not to vote for a verdict of guilty, nor to be influenced to so vote for the
single reason that a majority of the jury might be in favor of a verdict of guilty, if given, should be first
modified so as not to admit of the construction that it was a juror's duty to hold to his convictions, which
might in fact be based upon an erroneous view or misconception of the law or the evidence, and so as to
embody the idea that it was the duty of each juror to consult with his fellows, and to consider their views,
to the end that each might aid in arriving at the truth.
5. HomicideInstructionsDefense of Another. A requested instruction, on a trial for
murder, wherein it was contended that the killing was in defense, not only of defendant, but also of
another, that the law makes it the duty of every one who sees a felony attempted by violence to prevent it, if
possible, and that one may kill in the defense of another under the same circumstances that he would have a
right to kill in defense of himself, should have been given, notwithstanding an instruction was given which
was substantially the statutory definition of justifiable homicide.
6. Same. Comp. Laws, 4751 (Crimes and Punishments Act, sec. 110), which, after defining the crime of
conspiracy, provides that no part of the act shall be construed to restrict or prohibit the orderly assembling
or cooperation of persons employed in any trade or handicraft for the purpose of securing an advance in the
rate of wages or for the maintenance of such rate, did not authorize an instruction that if decedent and
others went to the mine where the homicide occurred in an orderly manner for the purpose of maintaining a
rate of wages, and to induce another in an orderly manner, without violence, to work for that wage, their
purpose was lawful, for such question was not involved in this case.
Appeal from the District Court of the Third Judicial District of the State of Nevada,
Nye County; Peter Breen, Judge.
John H. Hennessy was convicted of manslaughter, and from the judgment and an order
denying a new trial, he appeals. Reversed, and remanded for new trial.
J. P. O'Brien, for Appellant:
I. The prosecution has wholly failed to show that Ganahl believed that he was in great
danger, or that he entertained any fear that he would die, or that he had abandoned all hope of
recovery. It will be observed that the statement was made a very few minutes after the
homicide, and long before he had received medical attendance, and that he did not and could
not know the extent of his injuries, or whether or not his wound was fatal. Under these
circumstances we submit that the prosecution failed to show that Ganahl believed that he was
about to die, or that he had abandoned all hope of recovery. Besides, the evidence shows that
the statement of Ganahl was reduced to writing and signed by him. We submit that the
written declaration is the best and only evidence, and that it was error, therefore, for the trial
court to permit the witnesses to narrate the alleged statement or declaration made by Ganahl.
(10 Am. & Ency. Law, 391, 2d ed. and cases cited.)
II. In capital cases, past threats and hostile actions or antecedent circumstances tending to
show malice are admissible in connection with the homicide, for the purpose of showing
apprehension of personal danger from the deceased and of illustrating the question which of
the parties, in a sudden reencounter or quarrel in which human life has been taken may
have been the assailant.
and of illustrating the question which of the parties, in a sudden reencounter or quarrel in
which human life has been taken may have been the assailant. (People v. Travis, 56 Cal. 251;
People v. Thomson, 92 Cal. 507; People v. Dye, 75 cal. 108; People v. Lee Chuck, 74 Cal.
30; In re Neagle, 135 U. S. 1-42.) In discussing this question, the Supreme Court of
California, in the case of People v. Thomson, supra, says: Again, in this case, a deadly
encounter took place; one party was killed; the survivor insists that the killing was in
self-defense, and that the deceased made the first attack. Who was the aggressor, was an issue
of vital importance to the jury; justice could only be reached by its proper solution, and, as
disclosed by the evidence, it was enveloped in doubt. Under these circumstances, all the acts
and conduct of the deceased, either in the nature of overt acts of hostility, or threats
communicated or uncommunicated, were proper evidence to be considered by the jury as
shedding lightto some extent, at leastupon the issue as to whether the deceased or the
defendant was the aggressor in the fatal affray. These principles are elementary in criminal
law, and a citation of authorities not demanded; but the general principles are found discussed
in People v. Arnold, 15 Cal. 479; People v. Scoggins, 37 Cal. 677; People v. Travis, 56 Cal.
252; People v. Tamkin, 62 Cal. 469. See, also, People v. Sortor, 34 Pac. 1037; State v.
Tarter, 37 Pac. 53. For these reasons, we submit that the threats made by Ganahl were clearly
admissible and the rulings of the court in excluding them were improper.
III. The conspiracy element of a crime becomes important only as a means of establishing
the commission of a crime. It is in this view that evidence is admitted to show conspiracy and
that instructions defining it are given. (People v. Holmes, 118 Cal. 444.) The question of
whether or not there was a conspiracy, and who were the conspirators, are conclusions of fact
and are entirely questions for the jury to determine from all the evidence. (People v. Holmes,
118 Cal. 444; People v. Lawrence, 143 Cal. 148; People v. Moran, 144 Cal. 48; People v.
Murphy, 146 Cal. 502.)
IV. The trial court was of the opinion that because appellant was on trial for the killing of
Ganahl, it was therefore incompetent for him to show any threats or overt acts of hostility
or antecedent circumstances tending to show malice on the part of Cole or Fancher, and
for this reason sustained the objections of the district attorney to this testimony.
lant was on trial for the killing of Ganahl, it was therefore incompetent for him to show any
threats or overt acts of hostility or antecedent circumstances tending to show malice on the
part of Cole or Fancher, and for this reason sustained the objections of the district attorney to
this testimony. We submit, however, that this testimony was competent and admissible, and
the rulings of the court in excluding it were erroneous. The rule is that all facts that go either
to sustain or impeach a hypothesis logically pertinent are admissible. And Wharton, in his
work on Criminal Evidence, says: No fact is relevant which does not make more or less
probable such a hypothesis. Relevancy, therefore, involves two distinct inquiries, to be
determined by logic, unless otherwise prescribed by jurisprudence: (1) Ought the hypothesis
proposed, if proven, affect the issue? (2) Does the fact offered in evidence go to sustain this
hypothesis? (Wharton on Criminal Evidence, 24). This testimony, if elicited, would show
that Cole and Fancher had jumped appellant's mining ground; that appellant had had trouble
with them; that there was a bitter feud existing between Cole and Fancher and appellant, and
that Cole and Fancher had made threats against appellant. This, we submit, was perfectly
competent and relevant, because Cole and Fancher were present and participating in the
assault at the time of the homicide, and the fact that they had made threats against the
defendant and that defendant had had trouble with them, would show a conviction in the
mind of the defendant that he believed his life was in danger, and that they were about to
carry out the threats that they had made. The condition of the defendant's mind, and the
question of whether or not he believed his life was in danger, and whether the appearances
were sufficient to excite the fears of a reasonable person, constitute the very essence of
self-defense.
V. When a homicide is committed in defense of another the rule is that any evidence is
competent to establish justification that would have been competent if the act had been
committed in defense of defendant's own person. (4 Elliot on Evidence, note to section
3041a; State v. Felker, 27 Mont. 451, 71 Pac. 668; People v. Curtis, 52 Mich. 616, 18 N. W.
285; Wood v. State, 128 Ala. 272, 29 South. 557; State v. Austin, 104 La. 409, 29 South. 23;
State v. Foster, 49 S. W. 747.) The law applicable to the defense of another is fully
considered by the Supreme Court of Montana in the case of State v. Felker, supra, and the
court says: The defendant offered evidence tending to show that during the year 1900 and
prior to November 30th, the date at which the deceased had assaulted his wife with a knife, he
made two other felonious assaults upon her, and that defendant had knowledge of them. This
offer was made upon the theory that the homicide was justifiable since it was done in
resisting an attempt to commit murder upon a third person, and any fact which would have
been competent for this jury to consider, had the alleged assault out of which the homicide
grew been made upon the defendant himself, was competent evidence to sustain his defense
in this case. The court excluded the evidence, and the defendant assigns error.
VI. The law makes it the duty of everyone who sees a felony attempted by violence to
prevent it, if possible, and allows him to use the necessary means to make his resistance
effectual. (People v. Travis, 56 Cal. 251-258; In re Neagle, 135 U. S. 1, 42, 54, 80; 21 Am. &
Eng. Ency. Law, 207; 25 Id. 274.) The doctrine of self-defense applies to one defending
another, and he may act upon appearances in defending another the same as he would in
defending himself. In discussing this question, the Supreme Court of Kentucky, in the case of
Stanley v. Commonwealth, 85 Ky. 440, 9 Am. St. Rep. 305, says: It is a general rule that
whatever a person may lawfully do in his own defense another may do for him. Mr. Bishop,
in speaking of the right to assist others in defense of person and property, says: The doctrine
here is that whatever one may do for himself he may do for another; * * * and on the whole,
though distinctions have been taken and doubts expressed, the better view plainly is, that one
may do for another whatever the other may do for himself.' (1 Bishop on Criminal Law, 877.)
* * * It is the duty of a man who sees a felony attempted by violence to prevent it if possible.
This is an active duty, and hence he has the legal right to use the means necessary to make
the resistance effectual.
the resistance effectual. If A be unlawfully assaulted by B, and his life thereby endangered, he
may, by reason of not being in fault, defend it even to the extent of taking the life of the
person who is in fault; and, as the right is a natural one, rules of law restricting it must, in
order that it may still be effective, be adapted to his character and nature. He may, therefore,
act upon appearances if he acts reasonably; and if assailed by another and he believes, and has
reasonable ground to believe, that his life is thereby endangered, he may even take life in its
apparent necessary defense. * * * Not only, however, may he do this, but another may do it
for him. This other person in such a case steps into the place of the assailed; and there
attaches to him, not only the rights, but also the responsibilities, of the one whose cause he
espouses. If the life of such person be in immediate danger, and its protection requires life for
life, or if such danger and necessity be reasonably apparent, then the volunteer may defend
against it even to the extent of taking life, provided the party in whose defense he acts was
not in fault. * * * In other words, as the person not in fault may, if he believes, and has
reasonable grounds to believe, that his life is in immediate danger, defend it to the extent of
taking life, so another may act upon like appearances as to such danger and defend it for him
to the same extent. Here a felony is attempted; and in killing the attempter, through the
necessity to save an innocent person, the one so doing is in the condition of se defendendo in
defending the one not in fault. In such a case the doctrine of self-defense in all its principles
extends to the accused, just as it would if the felony had been attempted upon him, or as it
would apply to the one in danger if he had done the killing. To the same effect are: 25 Am.
& Eng. Ency. Law, 274; Wharton's Criminal Law, 495, State v. Sumner, 74 Am. St. Rep. 736.
VII. The court erred in refusing to give the following instruction, presented and requested
by the defendant, and designated by him as instruction No. 27: A conspiracy exists when
two or more persons conspire to commit an unlawful act, or to commit a lawful act by
unlawful means.
No person has any right, by violence or unlawful means, to prevent another from exercising a
lawful trade or calling, or from doing any other lawful act; and if two or more persons
conspire together to prevent another person, by violence or unlawful means, from exercising a
lawful trade or calling, or from doing any other lawful act, and while engaged in carrying out
such conspiracy, they, the conspirators, commit a felony, or some other unlawful act not
amounting to a felony, then I charge you that they are all liable for the acts of any of their
number done in pursuance of such conspiracy. This is a full and complete definition of
conspiracy, as applied to the facts in this case, and should have been given. (People v.
Holmes, 118 Cal. 444; Spies v. People, 3 Am. St. Rep. 320; Mussel Slough Case, 6 Sawy.
612.)
VIII. The court erred in refusing to give the following instruction presented and requested
by the defendant, and designated by him as instruction No. 28: A conspiracy may, and
generally must be, proved by circumstances. This instruction was proper and should have
been given. (People v. Moran, 144 Cal. 55; Spies v. People, 3 Am. St. Rep. 320; Mussel
Slough Case, 6 Sawy. 612.)
IX. The court erred and misdirected the jury in giving instruction No. 2 presented by and
given at the request of the plaintiff. This instruction, we submit, is not a correct statement of
the law, because the jury were, in express terms, told that they must believe the testimony of a
witness, who had wilfully sworn falsely to a material matter in the case, if he was
corroborated by other evidence or by certain facts and circumstances proven on the trial. This
clearly invades the province of the jury, and is error. An instruction that the jury are not at
liberty to disregard the testimony of witnesses when corroborated is erroneous. (People v.
Compton, 123 Cal. 409; People v. Ekert, 16 Cal. 111.)
X. The verdict is contrary to law. Inasmuch as appellant was not permitted by the trial
court to fully and fairly present all of the facts constituting his defense, we submit that the
verdict is against law. It is the constitutional privilege of the defendant to stand upon his strict
legal rights and be tried according to law. If there is any error in the record, it is presumed to
be injurious to him, and for such error he is entitled to a new trial.
record, it is presumed to be injurious to him, and for such error he is entitled to a new trial.
(People v. Williams, 18 Cal. 194; People v. Eppinger, 109 Cal. 297.)
R. C. Stoddard, Attorney-General, and W. B. Pittman, District Attorney of Nye County, for
Respondent:
I. Where declarations of an individual are so connected with his acts as to derive a degree
of credit from such a connection independently of the declaration, the declaration becomes a
part of the transaction and is admissible in evidence. The evidence in such case is not
regarded as mere hearsay testimony. It does not rest upon the credit due the declarant, but it
may be admitted even though the declarant in ordinary cases would not be believed upon his
oath. (Hadley v. Carter, 8 N. H. 40.) The res gestae may be defined as the circumstances
which are the undesigned incidents of a particular litigated act and which are admissible when
illustrated by such act. (Nutting v. Page, 4 Gray, 584.) Declarations which constitute an
essential part of the transaction in issue are admissible. (Jones v. Rigby, 41 Minn. 530;
Corbett v. St. Louis Co., 26 Mo. App. 621; Lindaur v. Meyberg, 27 Mo. 181.)
II. Would the appellant contend for a moment, if a man, who was shot and believed he
was dying, made an oral statement, and subsequently, recovering nearly entirely, made a
written statement, and then relapsed and died, that the first statement would not be admissible
because he had made a second statement which had been reduced to writing? Surely not. The
second statement would not be admissible as it was not made in the belief of immediate and
certain death, whereas the first statement would be admissible as a dying declaration and
statement made in the expectation of immediate and certain death.
III. In the cases cited by the appellant threats made by the deceased were admissible
because the evidence showed that the deceased was the aggressor and that the defendant acted
in self-defense. In the case at bar the cases cited are not applicable, as there is not a syllable in
the entire record on appeal or evidence adduced at the trial that would even tend in the
slightest degree to show that Ganahl was the aggressor or that the defendant acted in
self-defense.
tend in the slightest degree to show that Ganahl was the aggressor or that the defendant acted
in self-defense.
IV. The court did not err in refusing to give plaintiff's instruction No. 7. For a court to
arbitrarily instruct a jury that, if they think a witness has sworn falsely to any material matter,
it is their duty to distrust the entire evidence, would be almost tyrannical and would usurp
their right of being the exclusive judges of the testimony. The jury are the exclusive judges of
the weight of the testimony. (State v. Thompson, 21 W. Va. 746; Underhill, Cr. Ev. p. 265,
sec. 215.)
V. A defendant is entitled to have instructions given to the jury embodying every legal
principle applicable to his case, but not necessarily in any particular language; if given in
substance they are sufficient. (State v. Buralli, 27 Nev. 41; State v. Ward, 19 Nev. 297; State
v. Cordelli, 19 Nev. 319.)
VI. The court did not err in refusing defendant's instructions Nos. 26 and 27, as it was not
proper to instruct the jury as to conspiracy, no conspiracy having been proven. One of the
defendant's assignments of errors is that he was not permitted to prove a conspiracy. How can
he ask that the jury be instructed as to a conspiracy, when he admits that none was proven?
Because the court would not permit him to? Any instruction as to conspiracy would not only
have been superfluous, but misleading. If any conspiracy had been proven, either by the
plaintiff or defendant, it would have been very proper for the court to have instructed the jury
as to the law on conspiracy, but in this case no conspiracy was proven on either side; in fact,
the record shows plainly that no conspiracy existed; if any did exist it was on the part of the
defendant.
J. P. O'Brien, for Appellant, in reply:
I. The rule is very well settled in capital cases that past threats and hostile actions, or
antecedent circumstances tending to show malice are admissible in connection with the
homicide for the purpose of showing apprehension of personal danger from the deceased, and
of illustrating the question which of the parties in a sudden reencounter or quarrel, in which
human life has been taken, may have been the assailant.
assailant. (People v. Travis, 56 Cal. 251; People v. Thomson, 92 Cal. 506; State v. Vaughan,
22 Nev. 302; State v. Porter, 49 Pac. 696.)
The appellant was convicted of manslaughter in the Third Judicial District Court in and for
the County of Nye, under an indictment charging him with the murder of one Frank Ganahl
on or about the 27th day of January, 1907, at the Town of Clifford, in said county, and upon
such conviction was sentenced to serve a term of five years and nine months in the state
prison. From the judgment of conviction, and from an order denying his motion for a new
trial, the defendant has appealed.
Upon the trial the defendant admitted the killing of Ganahl, but set up as a justification
therefor that it was done in the defense of his own person and that of one Max Elftman. In
order to better understand some of the assignments of error hereinafter considered, it will be
advantageous to refer to certain facts disclosed by the testimony, and also to quote extracts
from the testimony of certain witnesses for the state and on behalf of the defendant describing
the immediate facts and circumstances of the killing.
It appears from the testimony that, shortly prior to the killing of Ganahl, an association of
miners was effected at Clifford for the purpose of establishing a scale of wages for the
district, which association was local in its nature, and not affiliated with the Western
Federation of Miners. Of this association one George A. Cole was made the presiding officer.
The evidence discloses that there was considerable friction in the district growing out of this
organization. The relationship existing between defendant (Hennessy), Max Elftman, upon
whose lease the killing occurred, and certain of their friends, upon the one hand, and George
A. Cole, Frank Ganahl, the deceased, and certain of their friends, upon the other, is testified
to by certain witnesses as being, at the time of the killing, and prior thereto, anything but
friendly. There is testimony to the effect that at the time the organization of miners was
effected in the district the defendant was not notified of the meeting and a purpose
manifested by Cole, Ganahl and others to exclude the defendant therefrom, although
defendant testified that he was at the time, and for many years prior thereto had been, a
member of the Western Federation of Miners.
was not notified of the meeting and a purpose manifested by Cole, Ganahl and others to
exclude the defendant therefrom, although defendant testified that he was at the time, and for
many years prior thereto had been, a member of the Western Federation of Miners. One
witness for the defendant testified to a number of threats of personal violence and death
having been made by Frank Ganahl, George Cole, and one Walter J. Fancher against the
defendant, which threats were communicated to him. There was also testimony of threats of
personal violence having been made by the same parties against one Antone Bosse, an Italian
employee of Max Elftman who was suspected of working for less than the established scale.
A witness by the name of John Cahill testified that upon the morning of the killing he notified
the defendant and several others, whom he testified he thought were peaceful citizens, that he
had heard Ganahl, Cole, Fancher, and two others talking of going to where the Italian was
working and doing him some violence; that the witness Cahill, the defendant, and two or
three others went over to where it was expected the trouble would occur, but arrived there
before the other parties. Of those who went to the Elftman lease with the witness Cahill, it
appears that all had left the ground excepting the defendant before the arrival of Cole,
Ganahl, and Fancher, who appeared upon the scene about the hour of 10 o'cock in the
forenoon.
There is some difference in certain important particulars in the testimony of witnesses for
the state and those for the defendant relative to the immediate circumstances leading up to the
killing, and for the purpose of illustrating this difference we quote from the testimony of one
of the principal witnesses for the state and one for the defendant.
The witness George A. Cole testified, upon the part of the state, as follows: At about 10
o'clock that morning, Ganahl, Fancher, and myself arrived at what is known as the Elftman
lease.' I spoke to the Italian Bosse, who was working in a cleared away space at the edge of
the shaft, evidently going to set up a windlass frame, and said: Hello, Antone.' He answered,
Hello, George,' and I asked, Antone, what wages are you receiving?' He replied, This man
[pointing to Mr.
[pointing to Mr. Elftman, who was evidently his employer], he says I am getting five dollars a
day.' I answered: Very well, Antone, but don't work for less than the union scale.' He replied:
George, I ain't working for less than the union scale. I am not a scab.' I replied: Very well,
Antone, but don't do it, or you will make a scab of yourself, and we will have to treat you as
one.' With that I turned to leave. Elftman in the meantime was standing perhaps two paces
from me, a little to my left, and Ganahl also at my left, forming a sort of an angle, the three of
us, with Bosse again to my right. I turned to my right, intending to go back to work. Elftman
called, sayingmy back at this time was turned to all presentElftman called, saying, Say,
what do you mean when you say you would treat a man like a scab,' in a very irritable, angry
tone of voice. I replied that when a man is treated like a scab his name is posted in all the
union camps of the country as a man who would work for less than union wages, and he is
thereby embarrassed in the way of securing work, socially and otherwise. He then says, in a
much more irritable manner: What is your definition of a scab?' I replied that my definition
of a scab was that he was the dirtiest son of a bitch that lived. He then answered, saying, I
consider a union man a dirtier son of a bitch than any scab,' at the same time advancing
towards me, and raising his left hand as though to strike, and his right hand towards his right
hip. The next I saw was Ganahl seizing his hands. He seized Elftman's right hand with his
left, and Elftman's left hand with his right, and was directly between me and Elftman. The
next I saw was Hennessy with a pistol at Ganahl's back, and then heard the shot. Elftman
stepped back, and Ganahl fell forward to the ground. I turned towards Hennessy, and two
shots were fired. The next I knew I was holding my hand, my hat was off my head, and I was
holding my hand with the left. Then I saw Mr. Hennessy still with the gun in his hand
pointing towards myself and Mr. Fancher, he advancing closer to me than he was at the time
of the shooting. Hennessy said to Fancher: Stand back!'
Max Elftman, a witness for the defendant, testified relative to the difficulty as follows:
"Before the shooting commenced, Mr.
to the difficulty as follows: Before the shooting commenced, Mr. Hennessy, Antone, the
man that was working for me, and myself were presentAntone Bosse. We three were upon
the Elftman lease. Three men came up there. I didn't know at the time who they were, but I
afterwards learned that it was a man by the name of Fancher, and Cole and Ganahl. Ganahl
came up first, and then Cole, and then Fancher. None of them spoke to me or Mr. Hennessy.
Mr. Cole spoke to the Italian. When they came up there, the Italian was throwing rock away
from the top of the shaft to one side. I had just come out of the shaft, standing at the edge of
it. Cole asked the Italian what wages he was getting. He replied: Five dollars a day.' Cole
said: You want to be God damned sure that you are, or we will treat you as a scab and run
you out of camp.' To that the Italian replied: I am getting five dollars a day.' Then I attracted
Cole's attention by asking him what he meant by treating a man as a scab, and Cole said he
would be blacklisted throughout the United States, so that he wouldn't be able to get any work
anywhere. At the time he was talking his left hand was clenched, and he was very angry
looking in the face. As Ganahl came up he seemed to be gritting his teeth, and had his hands
clenched. Fancher was standing with his right hand near his right hip pocket. When I asked
Cole what he meant by treating a man as a scab, he replied he would be blacklisted
throughout the United States. I asked him for his definition of a scab. He paid a scab is the
dirtiest son of a bitch on earth. I said some of you so-called union men are the same. While I
was saying that Cole advanced towards me and struck me. I warded off the blow, and kept on
backing up, and Ganahl caught me around the back. I was backing up because I was afraid
Cole would throw me in the hole. While I was backing up, Ganahl had hold of me. When
Ganahl had hold of me Cole was striking at me. He was hitting me. Then Hennessy said:
Keep back!' Then the shots were fired. They did not keep back when Hennessy spoke.
Ganahl kept pulling me down, and Cole striking at me. Two shots were fired. I was not armed
at the time. I did not put my hand up to my hip pocket when Cole was talking to me, or at
any time while they were there.
talking to me, or at any time while they were there. I had a gun on the ground, in my coat
pocket. My coat was about twenty feet south from the hole lying on some timbers. I had no
gun in my possession.
There were other witnesses upon the part of the state corroborating the testimony given by
the witness Cole, and, likewise, other witnesses upon the part of the defendant corroborating
that of the witness Elftman. The important point of difference between the testimony of
witnesses for the defense and those for the state, excepting the witness Antone Bosse, was as
to the question whether the assault was first made by or upon Max Elftman, a question which
will hereafter be considered with reference to certain assignments of error.
The bill of exceptions in this case contains 112 assignments of error, only a few of which
we deem necessary to specifically consider at this time.
1. The Juror Stenson: Counsel for appellant very forcibly contends that the court erred in
the denial of defendant's challenge to the juror Roger Stenson for implied bias. Counsel for
the state, however, argues that, even if it be conceded that the examination of this juror
showed him to have been disqualified, appellant cannot avail himself of the error, for the
reason that his challenge was insufficient in matter of form, in that it did not specify the
particular ground of implied bias upon which the challenge was based, and, secondly, because
the defendant consented to have the juror Stenson sworn in to try the case while he yet had
two peremptory challenges unexhausted, although all such challenges were used before the
jury was finally secured. Upon the view we take of this case, a reversal of the order and
judgment is required upon other assignments of error, and, as the questions presented relative
to the challenge of the juror Stenson are not likely to arise upon a retrial of the case, we deem
it unnecessary at this time to determine them.
2. Dying Declaration: The court admitted, over defendant's objection, as a dying
declaration, an oral statement made by Ganahl a few minutes after the shooting. This is
assigned as error, upon the ground that the proper foundation for its admission had not been
laid.
tion for its admission had not been laid. It was shown by the testimony that the bullet which
killed Ganahl struck him in the back below the left shoulder blade, and passed nearly through
his body. He fell face downwards, and was unable to rise or turn over. A number of persons
quickly gathered around him, and to them he said: Boys, I am mortally wounded. I am all in.
Turn me over, and I will tell you how it happened. These were the only expressions of the
deceased indicating a belief upon his part that he was in extremis; that he was under a sense
of impending death. There was other testimony as to his conduct and apparent condition at
the time, and it was shown that death followed his statements within a little over two days.
The expression I am mortally wounded would indicate a settled belief in the mind of the
man that he had then no hope of ultimate recovery. The expression I am all in is one
frequently made use of in this western country, and when used under the circumstances in
question may, we think, be taken to have meant that the speaker considered his life was
practically at its end. Every case where the question of the admission of dying declarations is
involved must be determined upon its own peculiar facts and circumstances. It was the duty
of the trial court to determine from all the facts and circumstances disclosed whether or not a
proper foundation had been shown to admit the statement as a dying declaration. From the
facts disclosed, we cannot say the trial court erred in this particular.
3. Exclusion of Testimony: A witness, Joseph Van Mohr, testified, on behalf of the
defendant, that, on the night before the killing of Ganahl, Cole, Fancher, Ganahl, and one
Alex Whitman, were in his tent, and that he then heard a conversation, which he detailed, in
reply to the question, What was said by those parties present at that time? as follows: I
couldn't tell you that much, because I generally did not join in the conversation, because they
spoke in low tones, and I am hard of hearing, and generally took a magazine and was reading
all evening. I heard they were filling Alex Whitman with whisky. He was lying on the bunk.
His bunk was on the west side of the tent, and I heard them hollo into the conversation once
in a while.
hollo into the conversation once in a while. Heard Whitman hollo in. Mr. Ganahl was there at
the time. Cole told him to go down and get a bottle of whisky on his own credit. All I could
hear was to kill that son of a bitch of a dago over there, and I once asked which dago is that,
which dago do you mean?' They identified him as the manyou know the man that killed his
horses going out to Manhattan. I didn't know his name. Through the paper I saw his name was
Antone Bosse. * * * I knew there was going to be trouble. On the evening, even during the
daytime, I heard it said that this Italian got to be prevented from going to work in that camp,
otherwise if that son of a bitch goes to work, then we all can take our grip and get out of the
camp. We have no show then, and this Italian got to be prevented from going to work by all
means. * * * The Italian they referred to that night is the same Italian that was right here in
court, and is around the court house now. I can point him out now. I know his name is Antone
Bosse. * * * Well, they passed out, Cole and Fancher and Ganahl passed out, and Alex
Whitman stayed in the tent. * * * Mr. Ganahl came back to the cabin that night about 10
o'clock. Ganahl comes right in the front of the tent, and he called Alex Whitman, and Ganahl
said: Here, Alex, is another bottle of whisky, and that powder at Elftman's house got to go
off to-night.'
The record shows that after giving the foregoing testimony the following questions,
answers, objections, rulings, and exceptions transpired with reference to the testimony of this
witness: Q. What powder did he mean? A. There was about fifteen boxes of powder stored
under Elftman's houseMr. Pittman: We make the same objection. It has nothing to do with
the case at all, as to the powder under Elftman's house, or that they brought him a bottle of
whisky. We don't care if they brought back a hundred. The Court: Objection sustained. Mr.
O'Brien: Exception. * * * Q. What did Frank Ganahl tell Alex Whitman to do on the night of
January 26, 1907, if anything? Mr. Pittman: If the court please, I object to that question as
being immaterial, incompetent, and irrelevant, what Ganahl told him to do; that it is
immaterial what Ganahl told him to do, and it does not tend to prove or disprove any of
the issues in this case.
that it is immaterial what Ganahl told him to do, and it does not tend to prove or disprove any
of the issues in this case. * * * A. He said: Alex, here is another bottle of whisky, and I want
you to go down to-night and blow that powder up and blow that Dutch son of a bitch to hell
for hiring that scab.' Q. Whom did he mean, do you know? Mr. Pittman: I ask now that that
question be stricken out, when he says that he should blow that Dutch son of a bitch to hell.
In the first place, we don't know who the Dutch son of a bitch is, and, in the second place, it
does not tend to prove or disprove any issues in this case, and it is simply asked to prejudice
the jury, and it is irrelevant and incompetent. The Court: I sustain the objection. The answer
is stricken out. Mr. O'Brien: We reserve an exception to the court's ruling. Mr. Pittman: I
object to the question also, and move that it be stricken out. The Court: I permitted the
question for the purpose of determining whether or not it was a legitimate question. I did not
know, of course, what the answer of the witness would be, and, in view of the answer given
by the witness, I don't believe the question is a proper one, and the question is ruled out. Mr.
O'Brien: Exception to the court's ruling. Witness, continuing: I remember the killing of Frank
Ganahl. I heard the shots. I saw Mr. Hennessy on the morning of the 27th of January of this
year before the shooting of Frank Ganahl. I had a talk with him. I told him what had occurred
the night before in my cabin. Q. What did you tell Mr. Hennessy occurred the night before the
shooting? Mr. Pittman: Now, if the court please, I object to his answering the question and I
object to the question, on the ground that it is immaterial, irrelevant, and incompetent, does
not tend to prove or disprove any issue in this case what he told him. The Court: As I
understand it, there was nothing said against Mr. Hennessy in the cabin that night, so far as
the evidence shows, in the presence of this man here. I am right, and, if I am not, I want to be
set right. It was about Mr. Elftman, a Dutch son of a bitch, and that kind of a thing. I don't
remember anything being said against Mr. Hennessy. Therefore I do not think it would be
proper to permit this witness to answer the question. Mr. O'Brien: If the court please, it is
material and important, for this reason: As I stated in my opening statement to the jury,
and here yesterday to the court, we expect to prove as a matter of our defense that a
conspiracy was entered into to commit various acts of violence by Ganahl, Cole, Fancher,
and others; that there had been a great deal of trouble; and during this trouble that they
had made threats against Elftman, and they had made threats against Hennessy, and
when they came up there on the morning of January 27th Hennessy believed they came
up there for the purpose of carrying out their threats, and some conspiracy which had
been hatched the night before, of which he had been apprised that morning, and when he
acted he acted under the belief that his own life was in danger, and that Max Elftman's
life was in danger, whose life he had a right to defendin fact, there had enough occurred
to justify the fears of any reasonable man.
would be proper to permit this witness to answer the question. Mr. O'Brien: If the court
please, it is material and important, for this reason: As I stated in my opening statement to the
jury, and here yesterday to the court, we expect to prove as a matter of our defense that a
conspiracy was entered into to commit various acts of violence by Ganahl, Cole, Fancher, and
others; that there had been a great deal of trouble; and during this trouble that they had made
threats against Elftman, and they had made threats against Hennessy, and when they came up
there on the morning of January 27th Hennessy believed they came up there for the purpose
of carrying out their threats, and some conspiracy which had been hatched the night before, of
which he had been apprised that morning, and when he acted he acted under the belief that his
own life was in danger, and that Max Elftman's life was in danger, whose life he had a right
to defendin fact, there had enough occurred to justify the fears of any reasonable man. The
Court: The objection is sustained. Q. Did you at any time hear Frank Ganahl, or George Cole,
or Walter Fancher make any threats against Mr. Hennessy? A. No, sir.
The rulings of the court above quoted have been assigned as error; but, before proceeding
to consider these assignments we will refer to another assignment of error in reference to the
testimony of the defendant, as all may appropriately be considered together. The defendant, in
concluding an account of the killing of Ganahl, and of facts which led up to it, continued as
follows: At this time I knew threats had been made against the life of Max Elftman. On the
morning of the shooting, Von Mohr came over to the tent, and he says: Hennessy, I want to
speak with you.' Mr. Pittman: We will object to any threats that might have been made that he
knew of against Max Elftman. Mr. Hennessy is on trial, and he claims self-defense. Any
threat that might have been made against Elftman would not place him in danger and would
be irrelevant and incompetent. Mr. O'Brien: It would be material for this purpose: Our
defense is that he acted, not only in defense of himself, but that he acted in defense of Max
Elftman. The law is that a person has the same right to defend the life of another that he
has to defend his own life, and if he knew Elftman's life was in danger, and threats were
made against it, it would be relevant to show the condition of his mind at the time. Mr.
Pittman: If the court please, you ruled on that this morning in the case of Mr.
right to defend the life of another that he has to defend his own life, and if he knew Elftman's
life was in danger, and threats were made against it, it would be relevant to show the
condition of his mind at the time. Mr. Pittman: If the court please, you ruled on that this
morning in the case of Mr. Van Mohr. The Court: That was my ruling, and the ruling stands.
The objection is sustained. Mr. O'Brien: Exception. Witness, continuing: At the moment of
the shooting, I believed that Cole, Fancher, and Ganahl, or some of them, were about to kill
Max Elftman, or to do him great bodily injury, and when I shot I acted under the influence of
those fears. I certainly believed at the moment of the shooting that Cole, Fancher, and Ganahl,
or some of them, intended by violence or surprise to commit a felony. I believed that they
were going to murder Mr. Elftman, throw him into the shaft, and then attack me. I acted
entirely under the influence of those fears.'
The rulings of the court relative to the testimony of Van Mohr and the defendant, above set
forth, were error. It was competent for the witness Van Mohr to testify fully with reference to
any threats made against the life of Max Elftman by Ganahl, or by Cole or Fancher in
association with Ganahl, for such threats, even if uncommunicated, would be competent for
the purpose of aiding the jury in determining who was the aggressor in the encounter which
subsequently occurred between Ganahl and Cole on the one hand, and Elftman on the other. It
was, however, of the very greatest importance to the defendant to show that these threats were
communicated to him. His defense was based upon the proposition that he took the life of
Ganahl, not only to save his own life, but to save that of Max Elftman. Both these defenses
were before the jury for their consideration. If defendant believed as a reasonable man that
Max Elftman was assaulted and was in danger of losing his life or of suffering great bodily
harm at the hands of Ganahl, he had the same right to defend Elftman as the latter would have
to defend himself, and whatever would be competent evidence if Elftman's favor, if Elftman
had done the killing, would be competent in favor of the defendant. Mr. Bishop, in speaking
of the right to assist others in defense of their person says: "The doctrine here is that
whatever one may do for himself he may do for another; * * * and on the whole, though
distinctions have been taken and doubts expressed the better view plainly is that one may
do for another whatever the other may do for himself."
speaking of the right to assist others in defense of their person says: The doctrine here is that
whatever one may do for himself he may do for another; * * * and on the whole, though
distinctions have been taken and doubts expressed the better view plainly is that one may do
for another whatever the other may do for himself. (1 Bishop on Criminal Law, 877.)
Another writer uses this language: A well-grounded belief that a felony is about to be
committed will extenuate homicide committed in prevention, but not in pursuit, by a
volunteer. * * * A bona fide belief that a felony is in process of commission, which can only
be arrested by the death of the supposed felon, makes the killing excusable; but the belief
must be honestly entertained, and without negligence, and, if non-negligent, it will excuse the
homicide. * * * A person has a right to repel a felony threatened to be perpetrated either on
himself or others. * * * The intentional infliction of death is justifiable, when it is inflicted by
any person in order to defend himself or any other person from immediate and obvious
danger of instant death or grievous bodily harm, if he, in good faith, and on reasonable
grounds, believes it to be necessary when he inflicts it. * * * Self-defense will justify a person
in defending those with whom he is associated, and in killing, if he believes life is in danger;
and the right may be exercised by the servants and friends of the party assaulted, or any one
present, in repelling an attempted felony. (Desty's American Criminal Law, 125d, 126,
126a.)
Kerr, in his work on the Law of Homicide, discussing the same subject, says: It is well
established that what one may do in his own defense, another may do for him, if he believes
life is in immediate danger, or if such danger and necessity be reasonably apparent, provided
the party in whose defense he acts was not in fault. * * * And it is the duty of a man who sees
a felony attempted by violence to prevent it if possible. This is an active duty, and hence he
has a legal right to use the means necessary to make the resistance effectual. If A. be
unlawfully assaulted by B., and his life thereby endangered, he may, by reason of not being in
fault, defend it even to the extent of taking the life of the person who is in fault; and, as
the right is a natural one, rules of law restricting it must, in order that it may still be
effective, be adapted to his character and nature.
in fault, defend it even to the extent of taking the life of the person who is in fault; and, as the
right is a natural one, rules of law restricting it must, in order that it may still be effective, be
adapted to his character and nature. He may therefore act upon appearances, if he acts
reasonably; and if assailed by another, and he believes, and has reasonable ground to believe,
that his life is thereby endangered, he may even take life in its apparent necessary defense. So
great, however, is the law's regard for human life, that he must be careful and not violate the
restriction that law and society have placed upon this right of self-defense, to wit, he must act
from necessity, and not be in fault. (Kerr on Homicide, 168.)
See, also, Stanley v. Commonwealth, 86 Ky. 440, 6 S. W. 155, 9 Am. St. Rep. 305; In re
Neagle, 135 U. S. 1, 10 sup. Ct. 658, 34 L. Ed. 55; People v. Travis, 56 Cal. 251; State v.
Felker, 27 Mont. 456, 71 Pac. 668; Wharton on Homicide, 532; text and authorities cited in
21 Cyc. 826, and 21 Am. & Eng. Ency. Law, 207; Comp. Laws, 4001, 4680.
Persons acting in defense of others are upon the same plane as those acting in defense of
themselves. Therefore, every fact which would be competent to establish justification in the
one case would, for the same reason, be competent to establish it in the other. (4 Elliott on
Evidence, note to section 3041s; State v. Felker, 27 Mont. 451, 71 Pac. 668; People v. Curtis,
52 Mich. 616, 18 N. W. 385; Wood v. State, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71;
State v. Austin, 104 La. 409, 29 South. 23; Foster v. State, 102 Tenn. 33, 49 S. W. 747.) Had
Elftman killed Ganahl in the encounter which occurred, it would have been competent for
him to have shown in his defense that a conspiracy had been entered into by Ganahl and
others to take his life or to do him great bodily harm, or that Ganahl alone had made threats to
do such violence, and for the same reason testimony of this nature would be competent in
Hennessy's defense; the latter claiming to have done the killing in the necessary defense of
Elftman.
The record upon appeal contains numerous other assignments of error relative to rulings of
the court upon the admissibility of testimony. In many instances the court subsequently
admitted testimony which it had previously ruled as inadmissible, and generally in such
cases the error, if any, would be cured.
subsequently admitted testimony which it had previously ruled as inadmissible, and generally
in such cases the error, if any, would be cured. Upon a retrial of this case, counsel for
defendant will have ample opportunity to call the trial court's attention to what he deems error
in its rulings other than those herein specifically considered, and if errors have been made
they will, doubtless, be corrected.
4. Instructions: Numerous exceptions were taken to rulings of the court in giving and
refusing instructions, some of which warrant our consideration at this time, to the end that the
trial court may be aided in avoiding error upon another trial.
Defendant's requested instruction No. 11, refused by the court, was as follows: If, after a
consideration of the whole case, any juror should entertain a reasonable doubt of the guilt of
the defendant, it is the duty of such juror, so entertaining such doubt, not to vote for a verdict
of guilty, nor to be influenced to so vote, for the single reason that a majority of the jury
should be in favor of a verdict of guilty. This instruction was, doubtless, taken from the case
of People v. Dole, 122 Cal. 495, 55 Pac. 585, 68 Am. St. Rep. 50, concerning which
instruction the court in that case said: This is a correct statement of the duty of a juror, and
should have been given. If any juror needed an instruction upon this point, it was harmful to
refuse it; if no juror needed the instruction, it would have been harmless to give it. While
this requested instruction is, in the abstract, a correct statement of the duty of an individual
juror, nevertheless, it does not, we think, clearly express the whole duty of a juror, and, if it
were the only instruction given in this regard, might mislead some juror into the belief that it
was his duty to hold strenuously to impressions or convictions which might be in fact based
upon an erroneous view or a misconception of the law or the evidence in the case, and which
the juror might, upon discussion with his fellows, readily see were untenable. It is the duty of
each juror to consult with his fellows and to consider their views, to the end that each may aid
in arriving at the truth. Ultimately, of course, each juror should act upon his own convictions,
but this is what his oath enjoins on him to do.
but this is what his oath enjoins on him to do. Reliance must necessarily be placed upon the
honor and intelligence of jurymen, and it may, we think, be left to the sound discretion of the
trial judge whether or not, after he has given the jury general instructions covering their
duties, it is necessary to point out to the individual juror his particular duty and obligation. In
any event, if the instruction in question be given, it should be so modified as to embody the
views in reference thereto herein expressed.
The Supreme Court of California, in a comparatively recent case, refused to reverse where
this instruction was refused, holding that the jury was sufficiently instructed as to its duties in
other general instructions. The court commented upon the instruction in question as follows:
Appellant contends that the refusal to give this instruction was error justifying a reversal,
and relies upon People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50, in support of
his contention. The court there says that the instruction correctly stated the duty of a juror and
should have been given, but adds: If any juror needed an instruction upon this point, it was
harmful to refuse it; if no juror needed the instruction, it would have been harmless to give it.'
But that case was not reversed solely or principally upon the refusal to give that instruction,
but mainly upon other errors of the trial court referred to in the opinion in that case. In the
later case of People v. Rodley, 131 Cal. 259, 63 Pac. 358, this court says on this subject:
Juries are impaneled for the purpose of agreeing upon verdicts, if they can conscientiously
do so. They are admonished at each recess of the court not to form an opinion as to the merits
of the case until it shall be finally submitted to them, and when it is so submitted it is the duty
of jurors to deliberate and consult together with the view of reaching an agreement, if they
can, without violence to their individual understanding of the evidence and instructions of the
court. They should not be lectured by the court to make them strong and steadfast in their
individual opinions; neither would they be exhorted to reach an agreement, and while it is
probably true that each juror should decide the matter for himself, yet he should do so only
after a consideration of the case with his fellow-jurors, and he should not hesitate to
'sacrifice his views or opinions of the case' when convinced that they are erroneous, even
though in so doing he defer "to the views or opinion of others."
case with his fellow-jurors, and he should not hesitate to sacrifice his views or opinions of
the case' when convinced that they are erroneous, even though in so doing he defer to the
views or opinion of others. (People v. Perry, 144 Cal. 754, 78 Pac. 284.)
The Supreme Court of Montana, discussing this same instruction, in State v. Hurst, 23
Mont. 496, 59 Pac. 915, said: An examination of the record in this case shows that the court
carefully instructed the jury as to their duties in instructions Nos. 9, 13, 17, and 38. We agree
that the instruction as asked is a correct statement of the law as to the duty of a juror, but we
also think that the general instructions submitted in this case were amply sufficient to guide
the individual jurors in the performance of their duties under the law. The court had heard the
individual jurors examined. It had witnessed their behavior during the progress of the trial. It
was discretionary with the court to instruct the jury more specifically with reference to their
individual duties, the exercise of this discretion to be determined by the observations made by
the court during the examination of the jurors, and their conduct during the trial. If the court
thought proper to give the instruction, it was proper to give it. On the other hand, if the court
thought the jury did not require the instruction, it was not abuse of discretion to refuse to give
it. There is some conflict of authority as to whether the court should instruct the jury in
matters of this kind. We agree in the main with what the Supreme Court of Iowa said on the
subject of such instructions in State v. Hamilton, 57 Iowa, 596, 11 N. W. 5: Of course each
juror is to act upon his own judgment. He is not required to surrender his convictions unless
convinced. He may be aided by his fellow-jurors in arriving at the truth, but he is not to find a
verdict against his judgment, merely because the others entertain views different from his
own. But a jury need not be advised of so simple a proposition. The usual method of
instructing upon the measure of proof required in criminal cases is sufficient.' To the same
effect is State v. Howell, 26 Mont. 6, 66 Pac. 291.
Defendant's requested instruction No. 14, refused by the court upon the ground that it
had been given already, reads as follows: "The law makes it the duty of every one, who
sees a felony attempted by violence, to prevent it, if possible, and allows him to use the
necessary means to make his resistance effectual.
court upon the ground that it had been given already, reads as follows: The law makes it the
duty of every one, who sees a felony attempted by violence, to prevent it, if possible, and
allows him to use the necessary means to make his resistance effectual. One may kill in
defense of another under the same circumstances that he would have the right to kill in
defense of himself. This instruction was a correct statement of the law, and it was of the very
highest importance to the defendant that the jury be instructed upon the principle of law
which it embodied, for it was of the very essence of his defense. We are unable to find that
this instruction was clearly given in any other instruction. Counsel for the state contend that it
was embodied in defendant's instruction No. 12, which was substantially the statutory
definition of justifiable homicide. A trained legal mind may be said to be able to evolve the
principle of law stated in the refused instruction from the definition contained in instruction
No. 12, but we doubt very much if the ordinary juryman, unfamiliar with fine legal
distinctions, would be able to readily make such an analysis. Whether the refusal of this
instruction would amount to reversible error in this case we need not determine. It is
sufficient to say that the instruction was proper, and should have been given.
Defendant's requested instructions Nos. 15, 16, 17, 21, 22, and 23, refused by the court,
were, doubtless, offered for the purpose of applying abstract principles of law to facts as
testified by witnesses for the defendant. If the jury believed the testimony of the defendant's
witnesses, instructions of the character requested would enable the jury to more readily apply
the law to the facts which such evidence might be deemed to have established. These
requested instructions are indorsed Refused by the trial judge, without giving any reason
therefor, and we are therefore at a loss to know upon what theory he acted in denying them.
Counsel for the state does not question their correctness, but claims it was not error to refuse
them, for the reason that other instructions covered the same pointsreferring to certain
instructions which simply embodied abstract principles of law. It is usual in criminal cases to
give instructions both for the state and for the defendant which apply abstract legal
principles to both the state's theory of the case and the defendant's theory of the case, as
such theories respectively have been supported by evidence, in order that, when the jury
has agreed upon the facts of the case, the law governing those facts shall be stated to
them in concrete form.
usual in criminal cases to give instructions both for the state and for the defendant which
apply abstract legal principles to both the state's theory of the case and the defendant's theory
of the case, as such theories respectively have been supported by evidence, in order that,
when the jury has agreed upon the facts of the case, the law governing those facts shall be
stated to them in concrete form. To refuse instructions of this character is error. No question
having been raised as to the entire correctness of these instructions as to matter of form, we
have, in our consideration of them, treated them as correct; but whether or not all or some of
them are subject to some modification we express no opinion.
Error is assigned in the giving of the state's requested instruction No. 6, which reads as
follows: The court instructs you that if you believe from the evidence that, at the time Cole,
Fancher, and Ganahl went to the Elftman lease, they went there in an orderly and peaceable
manner, for the purpose of maintaining a rate of wages, and to induce Antone Bosse, in an
orderly and peaceable manner and without violence, to work for that wage, their purpose was
a lawful purpose under the laws of this state. Counsel for the state contend that this
instruction stated the law and was applicable to this case because of the provisions of section
110 of the crimes and punishments act (comp. Laws, 4751). This section defines the crime of
conspiracy, but the concluding part of the section contains the following proviso: That no
part of this act shall be construed in any court of this state to restrict or prohibit the orderly
and peaceably assembling or cooperation of persons employed in any profession, trade, or
handicraft for the purpose of securing an advance in the rate of wages, or compensation, or
for the maintenance of such rate.
We are unable to see how the provisions of the section quoted could authorize the giving
of the instruction in question in this case. It was competent to show the purpose which
occasioned Ganahl, Cole, and Fancher to go upon the Elftman lease, and how they proposed
to accomplish such purpose, for that would be a circumstance to be considered by the jury in
a determination of the disputed question whether Cole and Ganahl first assaulted Elftman,
or whether Elftman was the aggressor.
whether Cole and Ganahl first assaulted Elftman, or whether Elftman was the aggressor.
(People v. Thompson, 92 Cal. 511, 28 Pac. 589.) The instruction given, however, might lead
the jury to believe that the laws of this state gave to Cole, Ganahl, and Fancher some special
privilege because of the fact, if the jury believed it to be a fact, that their purpose in going
upon the Elftman lease was to accomplish in an orderly and peaceable manner the
maintenance of a rate of wages. The proviso which forms a part of section 110 of the crimes
and punishments act, supra, relates solely to the construction to be placed upon the preceding
portion of the section. By the terms of this proviso the section of the act in question is not to
be construed by the courts so as to restrict or prohibit the orderly and peaceably assembling or
cooperation of persons employed in any profession, trade, or handicraft for the purpose of
securing an advance of the rate of wages, or compensation, or for the maintenance of such
rate. The purpose of the proviso was precautionary to prevent the possibility of courts
construing lawful acts as unlawful. It was never intended as a grant of additional power or
privilege, and especially the privilege of entering in and upon the property of another to carry
out a purpose, no matter how lawful or commendable the same might otherwise be. We think
this instruction would tend to confuse the jury upon a legal question not involved in this case,
and the giving of the same was error.
The record contains a number of other assignments of error relative to the refusal and
allowance of instructions, but we think we have covered the main questions which have
occasioned difficulty in the trial of the case. Whether or not error was committed in the
matter of assignments not specifically considered, we believe the trial court will have no
serious difficulty in their proper disposition when again presented.
For the reasons heretofore given, the judgment and order of the trial court are reversed,
and the cause is remanded for a new trial.
____________
29 Nev. 347, 347 (1907) Strosnider v. Turner
[No. 1719.]
I. A. STROSNIDER, Respondent, v. C. C. TURNER,
Appellant.
1. AppealRecordContentsJudgment RollStatutory Provisions. Where the record
contains duly certified copies of all papers required by statute to constitute the judgment roll, except the
summons, and it does not disclose whether one was issued or not, but shows that the defendant appeared
and answered, it was not defective, under Comp. Laws, 3431, requiring it to contain a copy of the judgment
roll.
2. ElectionsBallotsIndication of ChoiceVoterDistinguishing Marks. Where a voter
was required by law to mark his ballot by making a cross opposite the names of candidates voted for, and
was furnished with a stamp for this purpose, but, either because the stamp was defective, or he used it
improperly, he made only rectangular marks or blotches, the ballot was properly rejected as containing
distinguishing marks.
3. Distinguishing MarksApplication of Stamp. A voter was required by law to mark his
ballot by making a cross opposite the names of candidates voted for, and furnished with a stamp for this
purpose. He so applied the stamp that all or a portion of the rectangular outline of the stamp surrounding
the cross was left upon the ballot, but not rendering the cross indistinguishable. The defect only appeared in
what was probably the first mark made on the ballot, it being opposite the first name, and all the other
crosses on the ballot were clear. Held, that the ballot was valid.
4. AppealAssignment of ErrorNecessity. In an action to contest an election where the
rulings of the trial court in rejecting certain ballots as invalid were not assigned as error, the rulings were
not before the court for consideration on appeal.
Appeal from the District Court of the First Judicial District of the State of Nevada, Lyon
County; Frank P. Langan, Judge.
Action by I. A. Strosnider against C. C. Turner relative to the position of County
Commissioner of Lyon County, Nevada. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Alfred Chartz, for Appellant.
Mack & Shoup, for Respondent.
I. Respondent objects to the supreme court hearing the appeal in this case for the reason
that neither the judgment roll nor a certified copy of the judgment roll in the case is annexed
to the statement on appeal herein; nor does a copy of said judgment roll accompany said
appeal in any manner.
annexed to the statement on appeal herein; nor does a copy of said judgment roll accompany
said appeal in any manner. For this reason the appeal should be dismissed. (Comp. Laws,
3431; Irwin v. Sampson, 10 Nev. 282; State v. Eberhart, 6 Nev. 186.) We submit that the
findings and judgment of the lower court were proper and supported in every particular by the
evidence, and that no error prejudicial to contestee and appellant was committed on the
hearing of contest in the court below.
Appellant and respondent were rival independent candidates for the office of County
Commissioner of Lyon County for the short term, at the general election held on November 6,
1906. On the 12th day of November, 1907, the Board of County Commissioners of Lyon
County met and canvassed the returns of all the voting precincts of Lyon County, excepting
those from Churchill Precinct, and from such canvass found that the appellant, Turner, had
received 277 votes, and respondent, Strosnider, had received 275 votes. Upon such canvass
the commissioners directed that a certificate of election be issued to C. C. Turner for the
office in question, and the same was so issued. The commissioners of Lyon County refused to
canvass the returns of Churchill Precinct, for the reason that they had not been forwarded
from the election precinct in the manner and to the person authorized by law. Respondent
brought this action to contest the election of Turner, alleging irregularity upon the part of the
board of county commissioners in refusing to canvass the returns form Churchill Precinct,
and upon the part of the election officers of the various precincts in counting votes for
appellant which should not have been counted, and in failing to count votes for respondent
which should have been counted for him. The contest came on regularly for trial in the lower
court, and that court admitted and counted the ballots of Churchill Precinct, as well as all the
other precincts of the county, excepting nine ballots, which were rejected by the trial court as
containing distinguishing marks. From the count made by the trial court it was found that the
respondent, Strosnider, had received 276, and appellant, Turner, had received 275, lawful
ballots.
respondent, Strosnider, had received 276, and appellant, Turner, had received 275, lawful
ballots. The trial court thereupon decided that respondent was duly elected to the office in
question, and judgment was entered accordingly. From this judgment, appeal is taken.
Counsel for respondent have embodied in their brief an objection to the consideration of
the appeal upon the ground that the transcript on appeal does not contain a copy of the
judgment roll, as required by Comp. Laws, 3431. The record contains duly certified copies of
all papers required by statute to constitute the judgment roll, excepting the summons,
provided a summons was issued and returned in the case. The record nowhere discloses
whether a summons was or was not issued, and we know that defendants may, and sometimes
do, appear and answer a cause of action without the formality of a summons. A summons
may be issued and served, and if the defendant appear and answer, the purpose of the
summons has been accomplished. If the sheriff, in such case, should neglect to file the
summons with his certificate of service, or if the same should be lost, as sometimes happens,
doubtless the clerk or the parties to the action would pay no attention to its omission, and the
judgment roll would be made up without it. In the case of a default judgment, the summons,
of course, would be an essential part of the judgment roll, and its omission might lead to
serious results; but, in a case where parties defendant have appeared and answered, its
omission from the judgment roll would ordinarily have no effect. So far as the consideration
of any question presented upon this appeal is concerned, a summons, if issued, would be
immaterial. In the absence of a showing that a summons was issued, we will not presume
such fact in order to sustain a purely technical objection like that here presented.
Counsel for appellant has assigned as error numerous rulings of the trial court; but, in the
view we take of this case, we need only consider those rulings in reference to the rejected
ballots embodied in the record.
Rejected Ballots Voted for Appellant: Ballot marked Contestant's Exhibit No. 11 does
not contain a single cross stamped upon it, but contains four rectangular marks or blotches
in the squares opposite the names of three different candidates for office.
stamped upon it, but contains four rectangular marks or blotches in the squares opposite the
names of three different candidates for office. It is difficult to account for the making of these
marks, unless the stamp furnished the voter contained a cross upon but one end, while the
other end was flat, and that the voter in stamping his ballot used the wrong end of the stamp.
Either this was the case, or the voter pressed so hard upon the ballot with the stamp that the
cross was obliterated or became an indistinguishable part of the blotch that was left.
Whatever may have been the cause of the marks or blotches produced, the voter must have
seen in each instance that he had not stamped a cross as the law required. It was his duty,
under the circumstances, to return the ballot to the election officers and get a new one, and, if
the stamp furnished was defective, to get a new stamp. The trial court did not err in rejecting
this ballot. In Re Vote Marks, 17 R. I. 812, 21 Atl. 962, cited by this court in Dennis v.
Caughlin, 22 Nev. 455, 41 Pac. 769, 29 L. R. A. 731, 58 Am. St. Rep. 761, the Supreme
Court of Rhode Island said: A cross is the only mark authorized by the statute to be used to
designate the person voted for, and it is only by force of the statute that it gets its significance
for that purpose. If another mark be used, there is nothing to certify its meaning. It might be
conjectured that it was used inadvertently instead of a cross, but in our opinion such a
conjecture would not justify the counting of it. The statute declares: No voter shall place any
mark upon his ballot by which it may be afterwards identified as the one voted by him.' If
marks other than crosses were counted, they might be used both to answer the purpose of
crosses and to identify the ballots. Numerous authorities might be cited to the same general
effect.
Ballots marked Contestant's Exhibit No. 9, Contestant's Exhibit No. 10, and
Contestant's Exhibit No. 12, are similar in so far as the objection made to them is
concerned. Exhibits No. 9 and No. 12 each contain a cross stamped in the square to the right
of the name of George A. Bartlett, candidate for member of congress, and Exhibit 10 contains
a cross stamped in the square opposite the name of Oscar J.
Oscar J. Smith, candidate for member of congress. When these crosses were stamped, all or a
portion of the rectangular outline of the stamp was left impressed upon the ballot surrounding
the cross. In each case, however, the cross can be clearly and readily distinguished. It is
manifest, we think, that the faulty mark was made by the voter in each instance bearing down
a little too hard, considering the stamp furnished. This defect only appears in what was
probably the first mark made on each ballot, as the names of the congressional candidates are
the first upon the ballot, and naturally would receive first attention. All the other crosses
stamped upon the ballots are quite clear, excepting slight defects due to the poor stamp
furnished. These ballots, we think, should have been counted for appellant. In each case the
voter stamped a cross with the instrument furnished by the election officers for that purpose,
and, while the first impression made was defective, it was largely the fault of the instrument,
and cannot reasonably be placed in the class of distinguishing marks. The defect may very
properly be considered as accidental, and hence of a class regarded by the courts generally as
not vitiating the ballot. (State v. Sadler, 25 Nev. 179, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128,
83 Am. St. Rep. 573; Dennis v. Caughlin, 22 Nev. 456, 41 Pac. 768, 29 L. R. A. 731, 58 Am.
St. Rep. 761.)
If the officials charged with the duty of providing the stamps to be used at elections would
be particular in the selection of such stamps for the voter's use, all questions like that here
presented would be avoided. There should be no difficulty in having stamps made so that it
would be nearly impossible for the voter to stamp anything but a clear and well-defined cross.
The record contains five ballots rejected by the trial court as containing distinguishing
marks, which contain votes for respondent. The rulings upon these ballots are not assigned as
error, and hence such rulings are not before the court for consideration. (Dennis v. Caughlin,
22 Nev. 453, 41 Pac. 768, 29 L. R. A. 731, 58 Am. St. Rep. 761.)
The three ballots which we have held should be counted in favor of appellant would give
him a majority of two votes as the count now stands, and necessitates a reversal of the
case.
the count now stands, and necessitates a reversal of the case.
It is therefore ordered that the judgment be reversed, and the cause remanded for a new
trial.
____________
29 Nev. 352, 352 (1907) Ex Parte Hedden
[No. 1718.]
Ex Parte HEDDEN.
1. WitnessesConstitutional PrivilegeWaiverExceptions. If a witness elects to waive
his privilege not to testify against himself, but to disclose his criminal connections, he is not permitted to
stop, but must proceed and make a full disclosure.
2. Cross-Examination. Under the statute permitting accused persons to testify in their own
behalf, they may not defeat cross-examination on their statements on the ground that their testimony
might tend to incriminate them.
3. Limitation of Crime. A witness is not exempt from testifying relative to a crime barred by
limitations, though his testimony connects him with the crime.
4. Answers Relative to Disgrace and Disrepute. Though the answer of a witness may tend to
disgrace him and bring him into disrepute, if the proposed evidence be material to the issue on the trial,
he may be compelled to answer, but, if the answer has no effect upon the case, except so far as to impair his
credibility, he may invoke his constitutional privilege.
5. Immunity Guaranteed. Where by statute absolute immunity from prosecution is guaranteed
to a witness relative to anything concerning which he may testify, he may be compelled to testify.
6. Books of Corporation, Etc. Where, after the legal custodian of corporation books, etc., and
the general superintendent were subpenaed to attend a grand jury investigation of a charge of perjury
against the superintendent, the books, etc., were delivered to the superintendent in an attempt to put them
beyond the reach of the grand jury's investigation, and were in his possession when both appeared before
the grand jury, the court properly compelled him to return the books, etc., to the custodian.
7. Possession Refused by Employee, When Illegal. No employee of a corporation obtaining
possession of books, etc., belonging to the corporation, surreptitiously or otherwise, when not their legal
custodian, and when such books, etc., are not in any sense his private property, may lawfully refuse to
produce them, when legally ordered to do so, under the constitutional provision that no person shall be
compelled to testify against himself.
8. ContemptSummary PunishmentOffense Before Grand JuryMisconduct in Presence
of Court. Though a grand jury is an adjunct of the court, it is not such part thereof as, under Comp. Laws,
3556, authorizing summary punishment for a contempt in the immediate presence of the court, permits the
judge to summarily punish offenders for any act before the grand jury, without proceeding on affidavit and
citing the offender to show cause why he should not be punished.
Application for writ of habeas corpus by J. F. Hedden. Petitioner discharged.
Campbell, Metson & Brown and George S. Green, for Petitioner:
I. Contempt proceedings cannot be used for the purpose of adjudicating title or right of
possession to property. (Fairell's Crim. Law and Proc. 113; Ex parte Hollis, 59 Cal. 405;
Deering v. Richardson-Kimball Co., 109 Cal. 83; Ex parte Clark, 110 Cal. 407; Sayers v.
Superior Court, 84 Cal. 645; Tomsky v. Superior Court, 131 Cal. 623; Ex parte Casey, 71
Cal. 269.) At common law an adverse party could not be compelled to testify or to produce
any evidence in his possession (Wigmore, sec. 2218, vol. 3). There is no statutory process to
compel the production of documentary evidence except a subpena duces tecum. The order
complained of was not the institution of any new process authorized by law, and was not an
enforcement of the subpena, and was not, therefore, an order which the court could legally
make. The court appears to have found, though he does not in terms say so, that Hedden
obtained the possession of the books and documents in question unfairly, unlawfully, and
surreptitiously, and knowing that Mr. Lyon was required to produce them. On what evidence
did he so find? The grand jury did not so find, and, even if they had done so, an unsworn
statement of the foreman would not be competent evidence of a fact which will deprive a
citizen of his liberty. In cases of contempt, like other criminal cases, the evidence must
establish the contempt beyond a reasonable doubt. A mere preponderance is not enough.
(United States v. Jose, 63 Fed. 951; In re Buckley, 69 Cal. 1; In re Judson, 3 Blatchf. 148; In
re Taylor, 10 Pac. 88.)
II. Counsel concedes that petitioner cannot be compelled in any criminal case to be a
witness against himself. A very generous admission! If counsel knew that to be the law, we
cannot understand why this much was conceded to petitioner before he was served as a
witness against himself, thus obviating a tedious appeal to this court. Nevertheless, it will
only be necessary under this tardy admission to cite the leading authorities on the subject:
Counselman v. Hitchcock, 142 U. S. 547; Boyd v. United States, 116 U. S. 616; Brown v.
Walker, 161 U. S. 591; Emery Case, 107 Mass. 172; Newgold v. American Electric Co., 108
Fed. 343; In re Kanter, 117 Fed. 357; McKnight v. United States, 115 Fed. 972; United States
v. National Lead Company, 75 Fed. 94; Blum v. State, 51 Atl. 26; Lawson v. Boyden, 43 N.
E. 781; Boyle v. Smithman, 23 Atl. 397; Ex parte Cohn, 104 Cal. 524; 1 Wharton, Ev. 3d. ed.
par. 536, cases cited.
III. Section 3557 of the Compiled Laws provides that when the contempt is not
committed in the immediate view and presence of the court a warrant of attachment may be
issued to bring the person charged to answer, or without a previous arrest a warrant of
commitment may, upon notice or upon an order to show cause, be granted; and no warrant of
commitment shall be issued without such previous attachment to answer, or such order or
notice to show cause. None of these proceedings appear in the record, and it is conceded that
the petition and return contain the whole record of the proceedings of the lower court. The
judgment must show on its face the facts upon which the adjudication is made. (People v.
Turner, 1 Cal. 152.) The proceedings must show the jurisdiction of the court and specify the
facts upon which the order is based. (Overend v. Superior Court, 131 Cal. 280; People v.
Rowe, 7 Cal. 183; Schwartz v. Superior Court, 11 Cal. 112; Batchelder v. Moore, 42 Cal.
415; Ex parte Zeehandelaar, 71 Cal. 238.) The findings should show that it was in the power
of the party to comply with the order. (Ex parte Cohen, 6 Cal. 318; Ex parte Silvia, 123 Cal.
293.)
A. H. Swallow, District Attorney of Nye County, and Mack & Shoup, for Respondent:
I. The books and records of the Tonopah and Goldfield Railroad Company were not the
property of petitioner, nor could their contents be suppressed at petitioner's request in
order to protect him against the disclosures of transactions that may tend to incriminate
him.
Railroad Company were not the property of petitioner, nor could their contents be suppressed
at petitioner's request in order to protect him against the disclosures of transactions that may
tend to incriminate him. Petitioner, therefore, testified before the grand jury that he was not
the legal custodian of the books, but only temporary custodian, and it appears from Mr.
Lyon's testimony that, at the time of the service of the subpena duces tecum, he (Mr. Lyon)
was in possession of such books, and that, as the auditor of the company, he was entitled to
the custody of all such books and documents. The case of McElree v. Darlington, 187 Pa. St.
593, is squarely in point here. In that case the president of a trust company was indicted for
securing deposits after the company was insolvent. While the indictment was pending a
number of depositors petitioned the court of common pleas for leave to examine the books,
papers, and accounts of the corporation to ascertain the condition of the corporation when the
deposits to which the indictment related were made. The petition was dismissed by the lower
court upon the ground that the examination proposed would constitute an infringement or
denial of the rights of the person indicted. The ruling was reversed on appeal. The foregoing
distinction emphasizes the distinction that exists between the cases in which the documents
sought to be produced are the private property and rightfully in the possession of the person
by whom their production is sought to be compelled and the cases in which the documents are
the property and in the possession of another. There can, therefore, be no question but that the
service of a subpena duces tecum upon Lyon requiring the latter to produce certain records of
the railroad company was not in violation of petitioner's rights, and that petitioner had no
right to ask Lyon or the company to suppress such documents or refuse to produce them, and
his position is none the better because he has, in violation of the process of the court,
suppressed such documents himself.
II. Witnesses before a grand jury are under control of the court in the same manner and to
the same extent as are witnesses before a trial jury. (17 Am. & Eng. Ency. Law, 2d ed. 1289;
In re Gannon, 69 Cal. 541; Heard v. Pierce, 8 Cush. 338, 54 Am. Dec. 757; Ward v. State, 2
Mo. 126, 22 Am.
Dec. 449.) Even though the refusal of the petitioner before the grand jury to permit Lyon to
obey the process of the court was not a contempt in the presence of the court, his subsequent
refusal, through his counsel, to recognize the validity of such process, or to permit a
compliance with it, was certainly a contempt committed in the immediate presence of the
court. (Thompson on Trials, 138, and cases cited; Bishop on Cr. Proc. 868.)
Campbell, Metson & Brown and George S. Green, for Petitioner, in reply:
I. Counsel say that only Lyon can make objection to the validity of the process. We have
to observe here that we are not trying Lyon's case. All objections to the sufficiency of the
proceedings are made on behalf of petitioner. We have the right, however, to look into the
record to determine whether the court had jurisdiction to make the order made, and, unless we
may go behind the order, it cannot appear that the court had the semblance of jurisdiction
over the parties or the subject-matter. The case of McElree v. Darlington, 187 Pa. St. 543, for
which much is claimed by counsel, is not at all in point. Though it may be said to tread close
to forbidden ground, yet in that case the books were in the hands of a receiver and were not in
the possession of the defendant, and he was required to produce them in evidence on a charge
prosecuted against himself.
A writ of habeas corpus was issued and made returnable before this court upon a petition
filed and presented by George S. Green in behalf of J. F. Hedden, alleging that said Hedden
was unlawfully imprisoned and restrained of his liberty at Hawthorne, Esmeralda County,
Nevada, by the sheriff of said county and state. There appears from the petition and return of
the sheriff to said writ the following facts and proceedings: On February 26, 1907, the district
attorney of Esmeralda County, Nevada, issued a subpena duces tecum directed to the said J.
F. Hedden and one A. J. Lyon, commanding them to appear and attend before the grand jury
of Esmeralda County, Nevada, at Hawthorne, in said county and state, on the 19th day of
March, 1907, at the hour of 10 a.m., there to testify in the case of The State of Nevada v.
J. F.
grand jury of Esmeralda County, Nevada, at Hawthorne, in said county and state, on the 19th
day of March, 1907, at the hour of 10 a.m., there to testify in the case of The State of Nevada
v. J. F. Hedden, and also commanding them to produce before the grand jury the ledger of
the Tonopah and Goldfield Railroad Company for the year 1906; and the record of vouchers
audited and issued for the year 1906, and copy of Interstate Commerce Report for the years
1905 and 1906, monthly reports made to the board of directors or other officers of the
company for each and every month during the years 1905 and 1906, and all other books and
papers of the Tonopah and Goldfield Railroad Company, showing the cash on hand or in
bank each month during the year 1906, also all other papers showing any and all of the
properties of the Tonopah and Goldfield Railroad Company situated in the County of
Esmeralda, State of Nevada, during the year 1906. The desired witnesses, Hedden and Lyon,
both being residents of a different district than that of the said grand jury, it became necessary
under Comp. Laws, 4511, in order to secure their attendance and render effective the subpena
issued by the district attorney, that the district judge should find certain jurisdictional facts. In
accordance with this section the district attorney filed an affidavit, on which the court made
the following order: State of Nevada, County of Esmeraldass.: It appearing to my
satisfaction from the affidavit of A. H. Swallow, District Attorney of Esmeralda County,
Nevada, that J. F. Hedden and A. J. Lyon are witnesses material to the state in the case of The
State of Nevada v. J. F. Hedden, and that the evidence of said A. J. Lyon and J. F. Hedden is
material and will be necessary on the part of the state in the investigation of the charge of
perjury against J. F. Hedden to be investigated by the grand jury of Esmeralda County, on the
19th day of March, 1907, at the hour of 10 o'clock of said day, it is therefore ordered,
adjudged, and decreed that A. J. Lyon and J. F. Hedden be, and they are required to attend as
witnesses before the grand jury of Esmeralda County on the 19th day of March, 1907, at the
hour of 10 o'clock a.m., at the Town of Hawthorne, in the County of Esmeralda, State of
Nevada. Frank P. Langan, District Judge.
District Judge. Dated February 26, 1907. The sheriff of Nye County made the following
return on the said subpena and order of attendance: Sheriff's Office, County of Nyess. I, J.
J. Owen, Sheriff of the County of Nye, hereby certify that I served the within subpena by
showing the said within original to each of the following persons named therein, and
delivering a copy thereof to each of said persons personally on the 4th day of March, A. D.
1907, in the County of Nye, in Tonopah, Nevada. J. J. Owen, Sheriff, by George B. Swasey,
Deputy Sheriff.
On March 25, 1907, the grand jury of Esmeralda County, Nevada, submitted to the district
court of said county and state the following partial report: Hawthorne, Nevada, March 25,
1907. To the Hon. F. P. Langan, District Judge of the District Court of the First Judicial
District of the State of Nevada, Esmeralda County, Presiding: The grand jury of Esmeralda
County hereby submits to the above honorable court a partial report of the proceedings and
action of the grand jury in the case of The State of Nevada v. J. F. Hedden, on a charge of
perjury. That in investigating said charge one A. J. Lyon was regularly subpenaed to appear
before the grand jury to testify in the above-entitled case, and was ordered and commanded
by said subpena to produce before the said grand jury the ledger of the Tonopah and
Goldfield Railroad Company for the year 1906, the record of vouchers audited and issued for
the year 1906, the record of operating expenses for the year 1906, a copy of the Interstate
Commerce Report for the years 1905 and 1906, monthly reports made to the board of
directors or other officers of the company for each and every month during the years 1905 and
1906; and all other books and papers of the Tonopah and Goldfield Railroad Company,
showing cash on hand and in bank each month during the year 1906, and also all other papers
showing any and all of the properties of the Tonopah and Goldfield Railroad Company
situated in the County of Esmeralda, State of Nevada, during the year 1906. That in response
to said subpena issued by A. H. Swallow, District Attorney of Esmeralda County, State of
Nevada, said subpena being hereby referred to and made part of this report, said A. J. Lyon
appeared before the grand jury and was duly sworn by its foreman, A.
said A. J. Lyon appeared before the grand jury and was duly sworn by its foreman, A.
Summerfield, to tell the truth, the whole truth, and nothing but the truth, in the said case of
The State of Nevada against J. F. Hedden. That said A. J. Lyon testified that, when said
subpena was served upon him by the sheriff of Nye County, he was the auditor of the
Tonopah and Goldfield Railroad Company, and had charge and possession of the foregoing
named books of the said company. That some time after the service of said subpena, namely,
on the 18th day of March, 1907, he received a telegram from George S. Green, which
telegram is as follows, to wit: Carson Nevada, March 18, 1907. A. J. Lyon, Audr. T. and G.
R. R., Tonopah. Hedden has been requested to bring company's books before grand jury. As
general counsel and under instructions from Brock, I order you to turn all books of Tonopah
and Goldfield Railroad Company over to Hedden. Geo. S. Green.' That in obedience to said
telegram, he turned over said books to said J. F. Hedden on said 18th day of March, 1907,
and the reason that he did not produce the books at this time was because he had surrendered
possession of them to Mr. Hedden, and did not know where they were. He further testified
that, if the books were in his possession now, that he would produce them before the grand
jury. Whereupon the grand jury ordered said A. J. Lyon to produce said books before the
grand jury. Mr. Lyon replied that he could not do so, as it was impossible, as he did not have
possession of them. J. F. Hedden was then called before the grand jury, and, on being duly
sworn, said: I am the general superintendent of the Tonopah and Goldfield Railroad
Company. I refuse to answer when I received the books from A. J. Lyon, for the reason of my
constitutional right to refuse to testify against myself, and for the further reason that the
answers might tend to incriminate myself as well as the company. I am not the secretary of
the company, who is the legal custodian of the books, and am only temporary custodian, and I
refuse to answer all questions on that ground.' Whereupon the grand jury ordered said J. F.
Hedden to return the books to A. J. Lyon. Said J. F. Hedden then refused to turn over said
books to said A. J. Lyon, whereupon the grand jury ordered said J. F. Hedden to produce
said books before this grand jury.

refused to turn over said books to said A. J. Lyon, whereupon the grand jury ordered said J. F.
Hedden to produce said books before this grand jury. Said J. F. Hedden declined to comply
with said order for the reasons stated. It appears to the grand jury, from evidence submitted,
that said J. F. Hedden filed with the county assessor of Esmeralda County a statement of the
properties owned by the Tonopah and Goldfield Railroad Company situated in Esmeralda
County, State of Nevada; that the same was sworn to by said J. F. Hedden as being true and
correct; that said affidavits to said statement were made before a notary public by said J. F.
Hedden, signed and sworn to by him before said notary public on the 10th and 22d days of
September, 1906. That the grand jury is informed, and on such information verily believes,
that said J. F. Hedden as superintendent of the Tonopah and Goldfield Railroad Company,
situated in Esmeralda County, Nevada, has failed to set forth said property in said tax
statement sworn to by him. It is necessary for the grand jury to have said books to complete
the investigation of the charge of perjury against said J. F. Hedden, as the grand jury is
informed and believes that the information as to what property was omitted from said tax
statement by said J. F. Hedden can only be obtained from said books, papers, and documents
set forth in said subpena. We therefore respectfully ask the court to compel said witnesses to
produce said books before this grand jury. A. Summerfield, Foreman.
After citing the salient facts and matters as set forth in the partial report of the grand jury
and reviewing the legal phases of the situation presented, the court in its opinion premising
the order, on account of which petitioner complains he is deprived of his liberty, made the
following in the nature of findings of fact: Mr. Lyon on March 4, 1907, was under a subpena
duces tecum to produce to the grand jury of Esmeralda County on the 19th day of March,
1907, the books and papers which he on said March 4, 1907, had in his possession and which
by said subpena he was required to produce, said books and papers being the property of the
Tonopah and Goldfield Railroad Company.
Tonopah and Goldfield Railroad Company. It appears to the court that these books and papers
were in the possession of Mr. Lyon for fourteen days after March 4, 1907, the day of the
service on him of said duces tecum process. In the case of Mr. J. F. Hedden, he came by the
possession of the books and papers unfairly and in the face of the fact that he knew that Mr.
Lyon, a lawfully constituted officer of the company, in whose possession they were on March
4, 1907, was under subpena to produce the same to the grand jury of Esmeralda County on
March 19, 1907. Concluding, the court made the following order, which petitioner maintains
illegally restrains him of his liberty: From the foregoing I therefore find A. J. Lyon guilty of
contempt of court, in that he failed to produce to the grand jury of Esmeralda County the
books and papers of the Tonopah and Goldfield Railroad Company required to be produced
by the said subpena duces tecum lawfully issued by the district attorney of Esmeralda County
on the 26th day of February, 1907, and duly served on said A. J. Lyon on the 4th day of
March, A. D. 1907, in Nye County, Nevada, and which said books were in the possession of
said A. J. Lyon on March 4, 1907. I further order that J. F. Hedden forthwith turn over to and
place in the possession of said A. J. Lyon all the books and papers of the Tonopah and
Goldfield Railroad Company which the said Hedden received from A. J. Lyon on the 18th
day of March, 1907, and that said J. F. Hedden be committed to the custody of the sheriff of
Esmeralda County until he complies with this order. Preliminary to the argument of this case
on its merits, counsel for the petitioner excepted to the sufficiency of the return, and moved to
strike out certain portions thereof as being improper and constituting no legal part of the
return. We are of the opinion that, in so far as the objection applies to those portions of the
return wherein the sheriff on information and belief alleges certain matters immaterial and
foreign to this proceeding and casting aspersion and accusation on opposing counsel and
petitioner, the objection is sustained; but, in so far as the objection applies to any part of the
findings or judgment of the lower court, or to the documents of record in the lower court
referred to or made a part of the return on which said judgment was based or referred to,
the same is overruled.
record in the lower court referred to or made a part of the return on which said judgment was
based or referred to, the same is overruled.
In a very able presentation of this case by respective counsel, orally and by brief, two main
questions are submitted to this court for consideration, wherein is involved the jurisdiction of
the lower court to have made the order committing J. F. Hedden into the custody of the
sheriff until such time as he complied with said order commanding him to forthwith deliver
to A. J. Lyon the books and papers called for in the subpena duces tecum. It is contended by
petitioner, first, that the order of the lower court commanding him to turn over the books and
papers in question to Lyon is void, because in effect it would be compelling him to become a
witness against himself in a criminal proceeding against him then under investigation by the
grand jury, and would therefore be in violation of his constitutional rights guaranteed him by
both the Constitution of the United States and of the State of Nevada. Secondly, that the
proceedings in which the order culminated committing Hedden into custody were not in
accord with the mode required by law and that said order is therefore void. The maxim,
Nemo teneter se ipsum accusare, is derived from the common law, and was reaffirmed in
Magna Charta, whence it was transferred, in slightly varied form, into the Constitution of the
United States where we find it thus expressed in the fifth amendment: That no person * * *
shall be compelled in any criminal case to be a witness against himself. And verbatim in
section 8 of article I of the Constitution of Nevada this same provision exists. This wise
provision protecting the citizen in his personal liberty in this respect, as expressed in the
celebrated case of Brown v. Walker, 161 U. S. 596, 16 Sup. Ct. 640, 40 L. Ed, 819, had its
origin in a protest against the inquisitorial and manifestly unjust methods of interrogating
accused persons which long obtained in the continental system, until the expulsion of the
Stuarts from the British throne in 1688. The abuse of the right to interrogate persons accused
of crime, the temptation to press the witness unduly to wring confessions from him under
torturous or painful methods, to force him into a corner, to entrap him into fatal
contradictions, and other unfair advantages which were frequently taken by officers of
the crown, made the system so odious in England as to give rise to the demand for its
total abolition.
into a corner, to entrap him into fatal contradictions, and other unfair advantages which were
frequently taken by officers of the crown, made the system so odious in England as to give
rise to the demand for its total abolition. So deeply did the iniquities of the ancient system
impress themselves upon the minds of the American colonists that the states with one accord
made a denial of the right to oppress accused persons a part of their fundamental law, so that
this maxim, which in England was a mere rule of evidence, became clothed in this country
with the impregnability of a constitutional enactment; and indelibly recognized judicially
since the rendition of the famous opinion of the United States Supreme Court in the case of
Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, holding that the fourth
amendment to the Federal Constitution, which provides, among other things, the right of the
people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated, and which provision we find also verbatim in our own
constitution, as being a complement to the fifth amendment, and holding that a compulsory
production of a party's private books and papers to be used against himself or his property in a
criminal or penal proceeding is within the spirit of the amendment and equivalent to a
compulsory production of papers in the sense implied in that part of the fifth amendment
which declares that no person shall be compelled in any criminal case to be a witness against
himself. With the authorities above cited, the proposition is too well settled to need a further
citation of authorities that a witness cannot only not be compelled to testify against himself in
a criminal case, but that this exemption extends also to his private books and papers, a
proposition which counsel for respondent concedes, but which they claim affords the
petitioner no justification in the present case.
Meritorious and stringent as this general rule is, there are, however, certain classes of cases
which have always been treated as exceptions, because not falling within the reason of the
rule. When examined, these cases will all be found to be based upon the idea that if the
testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution
against the witness, the rule ceases to apply, its object being to protect the witness and
no one else, much less that it shall be made use of as a pretext for securing immunity to
others.
not possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the
rule ceases to apply, its object being to protect the witness and no one else, much less that it
shall be made use of as a pretext for securing immunity to others. Thus, if the witness elects
to waive his privilege, as he may doubtless do, since the privilege is for his protection and not
for that of other parties, and discloses his criminal connections, he is not permitted to stop but
must go on and make a full disclosure. (1 Greenleaf on Evidence, 451; Commonwealth v.
Pratt, 126 Mass. 462; Lockett v. State, 63 Ala. 5; Low v. Mitchell, 18 Me. 372; People v.
Freshour, 55 Cal. 375.)
So, under modern statutes permitting accused persons to take the stand in their own behalf,
they may be subjected to cross-examination upon their statements. (State v. Whitam, 72 Me.
531; Commonwealth v. Morgan, 107 Mass. 199; People v. Casey, 72 N. Y. 393; State v.
Cohn, 9 Nev. 179.)
For the same reason, if the prosecution for a crime concerning which the witness is
interrogated is barred by the statute of limitations, he may be compelled to answer.
(Manhanke v. Cleland, 76 Iowa, 401, 41 N. W. 53; Weldon v. Burch, 12 Ill. 374; Floyd v.
State, 7 Tex. 215; Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754.) Again, if the
answer of the witness may have a tendency to disgrace him and bring him into disrepute, and
the proposed evidence be material to the issue on trial, the great weight of authority is that he
may be compelled to answer, although, if the answer have no effect upon the case, except so
far as to impair the credibility of the witness, he may fall back upon his privilege. (1
Greenleaf on Evidence, 454, 455; Weldon v. Burch, 12 Ill. 374; Ex parte Rowe, 7 Cal. 184.)
So, also, where by statute absolute immunity from prosecution is guaranteed to the witness in
regard to anything he may testify concerning, he may be compelled to testify. (Brown v.
Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Counselman v. Hitchcock, 142 U. S.
548, 12 sup. Ct. 195, 35 L. Ed. 1110.) In view of the facts and proceedings in this case, we
believe another well-defined line of exception can be well taken to the general rule, which we
will hereafter cite.
Subsequent to the oral argument and filing of briefs in this proceeding, counsel for
petitioner, with the consent of opposing counsel, filed for the consideration of this court a
copy of an opinion recently rendered in the Circuit Court of the United States for the District
of Idaho in the matter of the application of L. G. Chapman for a writ of habeas corpus. The
opinion is by Gilbert, Presiding Justice of the United States Circuit Court of Appeals for the
Ninth Circuit, and counsel for petitioner in calling our attention to this opinion contends that
it involves identically the same questions presented in the case now under consideration.
The Chapman case has some points of resemblance to, but we think may be clearly
distinguished from, the case of the petitioner Hedden. Chapman was adjudicated guilty of
contempt for refusing to obey the order of the court to submit to the inspection of the United
States grand jury for the District of Idaho the books and papers of the Barber Lumber
Company, and was ordered confined in the jail until he should comply with the order of the
court in the premises. The matter under investigation by the federal grand jury was the charge
of unlawfully acquiring timber lands by the said Barber Lumber Company, of which
Chapman was the general manager and a stockholder.
After citing at length the facts presented in the case, Judge Gilbert in his opinion said:
While the proceedings began with a subpena duces tecum directing the petitioner to bring
before the grand jury the books and records of the Barber Lumber Company, they finally
resulted in an ultimatum from the court ordering him to produce the books and papers and
submit them to the inspection of the grand jury, and giving the grand jury the authority, which
was expressly denied to the petitioner, to determine what was pertinent and what was not
pertinent to the subject which was under consideration. That subject had been announced in
open court to be the investigation of the proceedings whereby the Barber Lumber Company
had acquired title to timber lands of the United States in the State of Idaho. It was not
disputed that the Barber Lumber Company was incorporated without the State of Idaho, and
that the petitioner was and from the first had been the manager of its business in the State of
Idaho.
business in the State of Idaho. It followed from this that the acquisition of title to timber lands
must have been conducted on behalf of the corporation by the petitioner, and that everything
that was done in that connection was done with his knowledge and under his direction. If,
therefore, there was criminal violation of law in acquiring those lands, there is every reason to
assume that the petitioner must necessarily have been implicated therein, and that an
inspection of the books would furnish evidence against him. That was one of the grounds of
his appeal to the protection afforded by the fifth amendment and his refusal to comply with
the order of the court. The fifth amendment, which provides that one may not be compelled in
a criminal case to be a witness against himself, is closely allied with the fourth amendment,
which inhibits unreasonable searches and seizures. Said the court, in Boyd v. United States,
116 U. S. 616-633, 6 Sup. Ct. 524, 534, 29 L. Ed. 746: We have been unable to perceive that
the seizure of a man's private books and papers to be used in evidence against him is
substantially different from compelling him to be a witness against himself. We think it is
within the clear intent and meaning of those terms.' On page 631 of 116 U. S., page 533 of 6
Sup. Ct. (29 L. Ed. 746), the court added: And any compulsory discovery by extorting the
party's oath or compelling the production of his private books and papers to convict him of
crime, or to forfeit his property, is contrary to the principles of a free government.' Elsewhere
in the opinion the court said: It is our opinion, therefore, that a compulsory production of a
man's private papers to establish a criminal charge against him or to forfeit his property is
within the scope of the fourth amendment to the constitution in all cases in which a search
and seizure would be, because it is a material ingredient and effects the sole object and
purpose of search and seizure.' But it is said that, while one may not be compelled in a
criminal case to produce his own books and records if they tend to criminate him, he can
claim no protection under either the fourth or the fifth amendment when, as here, he is called
upon to produce, not his own books, but the books of a corporation of which he is an officer.
is an officer. In support of that view, reference is made to McAlister v. Henkel, 210 U. S. 90,
26 Sup. Ct. 385, 50 L. Ed. 671, in which the court said: Indeed, the authorities are numerous
to the effect that an officer of a corporation cannot set up the privilege of a corporation as
against his testimony or the production of their books. But here the petitioner is not setting up
the privilege of the corporation as against the production of its books. He is asserting his own
privilege for his own benefit on the ground that the books of the corporation of which he is
the custodian will tend to incriminate him.' * * * The reasons why a witness may not be
required to answer a question which he claims may tend to incriminate him apply with added
force to a case where he is ordered to subject to the inspection of a grand jury books and
papers which contain the record of his connection with transactions which are alleged to be
criminal in their nature. In the present case, it is not perceivable that there can be any question
of the good faith of the petitioner in declining to subject the books to examination. Although
they are in fact the books of the corporation, they are nevertheless to all intent and purpose
his own books. They are records made by him or under his direction, and are in his charge
and control. They refer to transactions which he has conducted. If they show the method in
which the corporation acquired title to timber lands, they necessarily disclose his own acts. It
is not denied that the presentation of the books and their inspection by the grand jury is
desired for one purpose only. This is fully shown by the record of the proceedings before the
court. It is that they be resorted to to ascertain what individual or individuals may be subject
to indictment for violation of the laws of the United States in acquiring title to timber lands. I
think it very clear that if the books contain the evidence thus sought, tending to prove the
violation of law, there was reasonable ground for concluding that they might have tended to
incriminate the petitioner, and that, therefore, his plea of privilege should have been
sustained.
In the case of petitioner Hedden it cannot be said that the corporate books and papers in his
possession are to all intents and purposes his own books, that they are records made by
him or under his direction, or that they were ever in his charge or control prior to the day
before he and Mr.
intents and purposes his own books, that they are records made by him or under his direction,
or that they were ever in his charge or control prior to the day before he and Mr. Lyon were
required to appear before the grand jury. In fact, it appears that the petitioner himself at the
time he appeared before the grand jury regarded the secretary of the company, Mr. Lyon, as
he himself testified before the grand jury, as the legal custodian of the books, and himself
only temporary custodian. Had the books, documents, papers, etc., been permitted to
remain in the possession of Mr. Lyon, the officer in whose control they naturally belonged
and in whose possession they were at the time of the service of the process, we conceive of no
objection which the petitioner Hedden could have urged which would have kept them from
the grand jury, and particularly in view of the telegram of George S. Green, general counsel
of the Tonopah and Goldfield Railroad Company, to Lyon, to wit: Carson, Nevada, March
18, 1907. A. J. Lyon, Auditor Tonopah and Goldfield R. R., Tonopah, Nevada. Hedden has
been requested to bring company's books before grand jury. As general counsel and under
instructions from Brock I order you to turn all books of Tonopah and Goldfield Railroad
company over to Hedden. [Signed] Geo. S. Greenindicating that the company either had
no objection to the books being produced before the grand jury, or, if we were to construe the
telegram otherwise, intended obstructing the process of the court. If the company had no
objection to the producing of the books before the grand jury, certainly Hedden, who was not
the legal custodian of the books at the time of the service of the subpena on Lyon, and not
being his private property, no matter how he came into possession of them under the
circumstances, would not be privileged to withhold them from the grand jury because of any
personal constitutional privilege of his own. It is claimed, however, because of the mere fact
that they were in his possession at the time he appeared before, and they were demanded by,
the grand jury, he could take refuge under his constitutional right not to be a witness against
himself, and that the books also could not be taken from him or returned to the possession
of the rightful custodian, because that, in effect, would be compelling him to become a
witness against himself.
or returned to the possession of the rightful custodian, because that, in effect, would be
compelling him to become a witness against himself. In considering this contention we deem
it entirely proper to take into consideration how the petitioner came into the possession of the
documentary evidence in question. When the subpena was served on Hedden and Lyon, the
latter had possession of and was the natural and proper custodian of the books, papers, and
documents required by the subpena to be produced. It was Lyon's duty to produce before the
grand jury what the subpena called for, and if he failed, without good reason, so to produce
them, he became liable to be punished for a contempt of court.
But it is claimed in this case that Hedden was equally bound to obey all the commands of
the subpena because he was named in it first, and it was first served on him. In fact, it is
repeatedly urged that Hedden, instead of obstructing the due administration of justice, has
obeyed explicitly the process of the court, and has only exercised his constitutional privilege
of refusing to become a witness against himself. The subpenaing of Hedden as a witness in a
criminal investigation against himself certainly imposed no duty or obligation on his part to
produce before the grand jury books, documents, or papers, etc., which were not, nor never
have been, in his possession or control, and which at the time he knew were and had been in
the control and custody of another who was regularly subpenaed to produce them. The trial
court evidently concluded that the transfer of the possession of the documentary evidence in
question from the custody of Lyon to that of Hedden the day before the grand jury met, as
found by Judge Langan, was for the purpose of putting it, if possible, out of the reach of the
grand jury's investigation, and under the circumstances we are of the opinion that the lower
court properly proceeded in so far as the order is concerned requiring the petitioner to return
to Lyon the books, papers, and documents mentioned in the subpena and which were by said
Lyon turned over to Hedden on the 18th day of March, 1907, the day preceding the meeting
of the grand jury.
The contention that the order is too broad, in that it calls for more than is necessary, or
subjects the business of the corporation to undue inspection or investigation, or that the
order complained of or process of the court is being used for or prompted by improper
motives by the prosecution in order to fish for evidence in a case other than the one under
consideration, is not at this time a matter for consideration. When the proper custodian of
the corporation's books and papers, etc., is called upon to produce them before the grand
jury, if the privilege is claimed at the proper time, in the proper manner, it is presumed
that the court will define just what parts or portions of the books or papers subpenaed
are subject to inspection or investigation.
for more than is necessary, or subjects the business of the corporation to undue inspection or
investigation, or that the order complained of or process of the court is being used for or
prompted by improper motives by the prosecution in order to fish for evidence in a case other
than the one under consideration, is not at this time a matter for consideration. When the
proper custodian of the corporation's books and papers, etc., is called upon to produce them
before the grand jury, if the privilege is claimed at the proper time, in the proper manner, it is
presumed that the court will define just what parts or portions of the books or papers
subpenaed are subject to inspection or investigation. But this and other privileges which
might be urged by the corporation, through its proper officer, before submitting its books and
papers called for in the subpena duces tecum to be produced for the inspection of the grand
jury, does not afford petitioner any relief in claiming any personal exemption, upon the
ground that the production of such books and papers would be compelling him to give
evidence or become a witness against himself. And, in addition to the classes of cases
heretofore cited, which are recognized as exceptions to the general rule that no person in a
criminal case shall be compelled to become a witness against himself, we are of the opinion
that the facts and proceedings in this case warrant us in adding that no employee of a
corporation who may obtain the possession of the books or papers belonging to a corporation,
surreptitiously or otherwise, when not the legal custodian of such books or papers, and when
such books or papers are not in any sense his private property, can lawfully refuse to produce
them when legally ordered to do so.
In further support of our view of the matter that petitioner would not be privileged to
withhold or suppress the books and papers in question as evidence before the grand jury upon
the ground that it would be compelling him to become a witness against himself, we cite
McElree v. Darlington, 187 Pa. St. 593, 41 Atl. 456, 67 Am. St. Rep. 592; In re Moser, 138
Mich. 302, 101 N. W. 588; McAlister v. Henkle, 201 U. S. 90, 26 Sup. Ct. 385, 50 L. Ed. 671.
Before judgment is passed upon a defendant, either depriving him of his liberty or of his
property, he unquestionably ought to have the right to be present and to be heard.
ing him of his liberty or of his property, he unquestionably ought to have the right to be
present and to be heard. Nowhere does it appear, either from the petition or the return upon
the writ, nor anywhere in the record of this case, that the court upon affidavit filed ever cited
Hedden to appear before the court to show cause why he should not be punished for
contempt, or that the district judge had anything before him at the time of making the order
complained of other than the partial unsworn report made by the foreman of the grand jury,
though from the opinion and order made we may conclude that an argument was made by
respective counsel before the court. The court below in entering the order complained of was
evidently of the opinion, and counsel for respondent attempt to maintain the court's position,
that it was not necessary before entering the order of commitment to have before him the
facts constituting the alleged offense committed in affidavit form as prescribed by our statute,
nor a citation to defendant to show cause why he should not be punished for contempt before
making such order, because having acquired jurisdiction of Hedden and Lyon by the subpena
duces tecum previously issued and served, and the grand jury being a part of the court, the
refusal to produce the books and papers to the grand jury, the offense was as though
committed in the immediate view and presence of the court, and that, in failing to comply
with the order contained in the subpena to produce said books and papers to the grand jury,
they could be punished summarily and until the order of the court was fully complied with.
Section 3555 of our Compiled Laws particularly defines what acts or omissions shall be
deemed contempt, and section 3556 provides when a contempt may be punished summarily,
and, in view of its important bearing on the determination of whether the court proceeded
regularly, we quote these sections:
3555. Sec. 460. The following acts or omissions shall be deemed contempts:
FirstDisorderly, contemptuous, or insolent behavior towards the judge whilst holding court,
or engaged in his judicial duties at chambers, or towards referees or arbitrators, while sitting
on a reference or arbitration, or other judicial proceeding.
tion, or other judicial proceeding. SecondA breach of the peace, boisterous conduct, or
violent disturbance in the presence of the court, or in its immediate vicinity, tending to
interrupt the due course of a trial, or other judicial proceeding. ThirdDisobedience or
resistance to any lawful writ, order, rule, or process issued by the court or judge at chambers.
FourthDisobedience of a subpena duly served, or refusing to be sworn or answer as a
witness. FifthRescuing any person or property in the custody of an officer by virtue of an
order or process of such court or judge at chambers. SixthDisobedience to the order or
direction of the court made pending the trial of an action, in speaking to or in the presence of
a juror concerning an action in which such juror has been impaneled to determine, or in any
manner approaching or interfering with such juror, with the intent to influence his verdict.
3556. Sec. 461. When a contempt is committed in the immediate view and presence of
the court or judge at chambers, it may be punished summarily, for which an order shall be
made, reciting the facts as occurring in such immediate view and presence, adjudging that the
person proceeded against is thereby guilty of a contempt, and that he be punished as therein
described. When the contempt is not committed in the immediate view of the court or judge
at chambers, an affidavit shall be presented to the court or judge of the facts constituting the
contempt, or a statement of the facts by the referees or arbitrators.
3557. Sec. 462. When the contempt is not committed in the immediate view and presence
of the court or judge, a warrant of attachment may be issued to bring the person charged to
answer, or without a previous arrest a warrant of commitment may, upon notice, or upon an
order to show cause, be granted; and no warrant of commitment shall be issued without such
previous attachment to answer, or such notice or order to show cause.
The question as to whether or not the court had the authority at the time it entered the
order complained of, and whether or not the order or any part thereof is void, because of
having improperly proceeded, as we view the case, practically resolves itself into the
construction we place upon the statutes above quoted, and as to whether or not the
grand jury can be so considered a part of the court as to have warranted the court in
acting summarily and without citing petitioner to show cause why he should not be
punished before entering said order committing him into the custody of the sheriff.
resolves itself into the construction we place upon the statutes above quoted, and as to
whether or not the grand jury can be so considered a part of the court as to have warranted the
court in acting summarily and without citing petitioner to show cause why he should not be
punished before entering said order committing him into the custody of the sheriff. From a
careful perusal of the authorities, we have examined in the light of our statutes defining
contempt and the mode of procedure of adjudging same; and keeping in mind the decisions of
this court which hold that statutes relating to contempts and the procedure of punishing same
must be strictly construed (Maxwell v. Rives, 11 Nev. 213; Ex parte Sweeney, 18 Nev. 74, 1
Pac. 379), we are of the opinion that, while a grand jury when in session and in attendance on
business connected with the court is an adjunct or appendage of the court, yet it is not in legal
contemplation such a part of the court as is contemplated in section 3556 as would authorize
a judge to summarily punish an offending party for any act before it, without proceeding on
affidavit and citing such party to show cause why he should not be punished as it would be
authorized to do if the contempt was committed in the immediate view and presence of the
court.
It has been declared without qualification by the Supreme Court of the United States in the
case of New Orleans v. Steamship Co., 20 Wall. 387, 22 L. Ed. 354, that a contempt of court
is a specific criminal offense, and that the judgment therein is a judgment in a criminal case;
and numerous cases may be found containing unqualified declarations of similar import.
There is, however, a line of authorities which indicate that contempt proceedings are civil and
not criminal, but, while the apparent conflict of views cannot in all cases be reconciled, much
of the inconsistency disappears if contempts be regarded as civil or criminal according to
their nature and effect. This distinction is substantially recognized by Sir William Blackstone
in his famous work. See 4 Blackstone's Commentaries, c. 20.
Mr. Rapalje, in his work on Contempts, at section 21, gives the best general definitions
relating thereto we have found. He says: Civil contempts are those quasi contempts which
consist in failing to do something which the contemner is ordered by the court to do for
the benefit or advantage of another party to the proceeding before the court, while
criminal contempts are all those acts in disrespect of the court or its process, or which
obstruct the administration of justice, or tend to bring the court into disrepute.
consist in failing to do something which the contemner is ordered by the court to do for the
benefit or advantage of another party to the proceeding before the court, while criminal
contempts are all those acts in disrespect of the court or its process, or which obstruct the
administration of justice, or tend to bring the court into disrepute. To the former class of
contempts belong such acts as the disobedience of an injunction issued at the suit of a private
party. Incidentally the court may vindicate its authority, but the individual alone is interested
in the enforcement of the order, and usually institutes the contempt proceeding. Formerly the
process whereby courts of chancery enforced all their decrees was in form and name an
attachment for contempt. To the latter class of contempts belong such acts as misconduct by
attorneys or other officers, disobedience of subpenas or other process, disturbance or insolent
behavior in the presence or immediate vicinity of the court, and the like. (Phillips v. Walsh,
11 Nev. 178; Welch v. Barber, 52 Conn. 147, 52 Am. Rep. 567; Crook v. People, 16 Ill. 534;
Ex parte Hardy, 68 Ala. 303; In re Watson, 3 Lans. 408; Hawley v. Bennett, 4 Paige, 163;
Wyatt v. People, 17 Colo. 252, 28 Pac. 961.)
But, irrespective of whether or not the proceedings prior to a judgment in a contempt case
be civil or criminal, we believe that unless the contempt is committed in the immediate view
and presence of the court, and when we say immediate view and presence of the court we
mean in the ocular view of the court, or where the court has direct knowledge of the
contempt, that the rights of every defendant should be protected as evidently designed by the
authors of our statute when they provided that, when the contempt is not in the immediate
view and presence of the court, the charge should be made by affidavit and the contemner
given the right to show cause why he should not be punished for contempt, and prove or
disprove the charges against him before judgment be passed upon him. This right to defend
one's self, either civilly or criminally, in any action which may be instituted wherein his
liberty or property is involved, is the sacred privilege of every citizen and of such
transcendent importance that it cannot be taken from him even by legislative enactment.
cendent importance that it cannot be taken from him even by legislative enactment. In the
present case the proceedings disclose that the court failed to act in accordance with the mode
required by law in ordering petitioner into custody, and, in so doing, we believe acted without
authority of law, and in violation of the rights of petitioner.
The order therefore committing petitioner into the custody of the sheriff is void, and he is
ordered released forthwith.
____________
29 Nev. 375, 375 (1907) Porteous Decorative Co. v. Fee
[No. 1713.]
THE PORTEOUS DECORATIVE COMPANY, INCORPORATED, a Corporation,
Appellant, v. DR. GEORGE FEE, Respondent.
1. Mechanics' LiensStatement of LienSufficiency. A mechanics' lien claim, stating that it
is for outside work on house and painting of inside blinds, $190, does not substantially comply with
Comp. Laws, 3885, requiring the claimant of a mechanics' lien to file a statement setting forth the terms,
time given, and conditions of the contract, and is insufficient to support a lien.
Washoe County; John S. Orr, Judge.
Action by Porteous Decorative Company, Incorporated, against Dr. George Fee. From a
judgment for defendant, and from an order denying motion for a new trial, plaintiff appeals.
Affirmed.
Mack & Shoup, for Appellant:
I. The right to liens given to mechanics and laborers is introduced into the statutory law
of the states by positive statutes. These statutes were at first looked upon by the courts to be
in derogation of the common law, and hence they were strictly construed. They have now,
however, become an integral part of our law, and their justice and beneficence have become
so apparent that it was not intended by the legislature that laborers' lien statements should be
strangled by technicalities, but, being remedial in their nature, they were to receive a
broad and liberal construction."
strangled by technicalities, but, being remedial in their nature, they were to receive a broad
and liberal construction. (Maynard v. Ivey, 21 Nev. 241, 244.) Further on in this case, the
court in stating the meaning and construction to be placed upon section 3812 of Gen. Stats.
Nev., which is exactly the same as the statute under which the lien in the case at bar was
made, with the exception that the time in which subcontractors may file liens has been
changed from thirty to fifty days, the court uses the following language: The purpose of
section 3812, Gen. Stats. Nev., is to secure to owners and others, who are about to advance
money or purchase the property, notice of the amount and nature of the lien to which the
property is subject, and in whose favor the lien has accrued, and if that notice is fairly given
under the claimant's signature and affidavit, it is a substantial compliance with the statute,
which is all the law requires.
II. It is not necessary to set out the items of account or specify the quantity of materials
furnished. (Lonkey v. Wells, 16 Nev. 271.) If there are no special terms, time, or conditions
given, none can be stated, and, in the absence of any such specifications, or proofs to the
contrary, the law would presume that none existed, and that the materials were to be paid for
on delivery. (Lonkey v. Wells, 16 Nev. 275.) To same effect see Jewell v. McKay, 82 Cal.
144; Hills v. Ohlig, 63 Cal. 104.
III. In the case at bar the provision of the statute in reference to stating the terms, time
given, and conditions of the contract does not apply, as the only terms, time, and conditions,
other than those which were expressed, were such as arise by implication of law and need not
be expressed.
IV. In the case at bar the item of $190 for painting and outside work on the house would
not need to be entered into and the details explained, for the reason that the whole of said
work was done under a special contract price of one lump sum for all the work and materials
therein included. It could add nothing by stating the details, as the price agreed upon would
control and would be the extent of the lien, and it would make no difference whether the
alterations were worth twice the amount or only one-half the amount.
It is reasonable to suppose that, if particulars of the work or alterations were ever to be
required in a statement or lien, it would only be in cases where the various items were to be
computed at the completion of the work in order to determine the amount of the claim. The
case of Spears v. Lawrence, 38 Pac. 1049, is a case right in point with the case at bar as to the
$190 item in the lien. In the said Washington case there was a contract to furnish for a gross
sum all material and work necessary to complete the painting of the building in accordance
with the contract between the contractor and owner, and the court, in declaring the notice in a
claim lien sufficient which did not go into the details of the contract, used the following
language: The lien notice set out a special contract by Spears and Leonard to furnish the
materials and do the necessary work to the full completion of the painting of the building in
accordance with the contract between the principal contractor and said Lawrence. And, while
it is true that the owner of the building would not be bound by the contract made between his
contractor and a subcontractor, if it was shown to be fraudulent or improvident, yet, in the
absence of such showing, it must be presumed that the contract is such as would be enforced
by the courts. This being so, we think the statement of the contract in the lien notice was
sufficient. There was no separate contract for the labor and for the materials, but one gross
contract for everything required in the prosecution of that particular work; and, this being so,
there could not well be set out a claim under said contract or separate amounts for materials
and for labor.
James T. Boyd, J. B. Jones, and A. N. Salisbury, for Respondent:
I. The mechanics' lien statute requires the time and substantial facts to be set forth in the
claim of lien. If the material furnished and labor performed were in pursuance of an express
contract, the contract should be set out in the lien hoec verba, or at least the facts which show
the truth of the transaction must be set forth. This is easy to do, and must be required;
otherwise no recovery can be had.
II. Appellant failed to give, in its alleged claim of lien, the true facts and history of the
negotiations that led up to and concluded the transactions between it and respondent. It failed
to give any material or substantial facts in said alleged lien. The only thing set out that a
finger can be put on is a schedule of prices. It nowhere appears in its alleged lien that a single
item mentioned in said schedule of prices was furnished to be used or was actually used in or
upon the respondent's building. The exact language of said alleged claim is: Performed labor
upon, and furnished material used in the repair and alteration; and again, the labor and
material for such repairs and alteration were furnished at his special instance and request for
which he agreed to pay the price as follows, to wit: (Here follows a price schedule.) That the
aforesaid labor and material have all been furnished and the work fully performed. What
material and labor? We are now upon the threshold of a new Nevada, and the great building
activities that are promised us demand that our mechanics' lien statute be so fully and clearly
construed that he who runs may read that a good and valid claim of lien must contain the true
facts of the negotiations leading to the furnishing of material and performing labor in each
contract for same, whether expressed or implied.
An action was instituted in the District Court of the Second Judicial District in Washoe
County to foreclose a lien filed by the Porteous Decorative Company against Dr. George Fee.
During the opening of plaintiff's case, which was tried before the court without a jury,
plaintiff's attorney offered in evidence the lien in question, to which defendant's attorney
objected upon the ground that the lien is void and invalid, in that it does not conform to the
requirements of the statutes of our state upon the ground that the claim of lien fails to state
the terms, the time given, or the conditions of the contract upon which the same is based as
required by the statute. The court sustained said objection upon the ground that the lien is
defective * * * in not stating the terms of the contract which was entered into, and rendered
judgment against plaintiff in favor of defendant for his costs.
ment against plaintiff in favor of defendant for his costs. From this judgment and order
denying plaintiff's motion for new trial, plaintiff appeals.
The part of the objection sustained by the lower court being fatal to appellant's contention,
it will be unnecessary to consider any other objections urged by counsel. The testimony
adduced at the hearing of this action discloses that an express oral contract was entered into
between appellant and respondent, and plaintiff's complaint is based on an express contract.
An averment in the complaint of appellant alleges: That on or about the 4th day of June,
1907, at the City of Reno, Washoe County, Nevada, the plaintiff and defendant entered into
an agreement, whereby the plaintiff agreed to furnish the labor and material and make certain
alterations and repairs upon the premises of the defendant known as No. 144 Sierra Street,'
Lot 7, Block 5, City of Reno, Washoe County, State of Nevada, and the defendant agreed to
pay the plaintiff therefor the prices as set forth in the plaintiff's statement and claim of lien,
amounting the sum of $221.93, a copy of which statement and claim of lien is hereto
attached, marked Exhibit A,' and made part of this complaintand further avers that all of
said work and material were furnished in accordance with the terms thereof.
Respondent denies the material allegations of the complaint, and avers that the work
agreed upon in said contract was to be for no greater sum than $190, specially denies that
respondent fully performed the conditions of the contract entered into between them, and in
the way of a further and separate and distinct defense to said action sets forth: That * * *
plaintiff commenced the work of painting and repairing the said house and fence, but that the
said work was done in a careless and negligent manner so as to be of little or no benefit to the
said dwelling house and fence; that plaintiff painted portions of the said house with two coats
of paint, and other portions of the house with only one coat of paint; and that the said house
and fence still remain incomplete. The terms and conditions required to be set forth in the
lien therefore become of vital importance.
The lien in question contains the following item: Outside work on house and painting of
inside blinds, $190, by which it is attempted to set forth in the said lien terms and the
conditions or things to be done for the money agreed upon in the contract on which this lien is
based and asked to be foreclosed. A statutory lien can only legally exist when it is perfected
in the manner prescribed by the statute creating it, and, being a statute of a remedial nature,
we believe should be liberally construed, and that a substantial compliance with the law is
sufficient to create a valid lien. (Skyrme v. Occidental M. & M. Co., 8 Nev. 221; Hunter v.
Truckee Lodge, 14 Nev. 28; Lonkey v. Wells , 16 Nev. 274; Maynard v. Ivey, 21 Nev. 245, 29
Pac. 1090.)
There are, however, certain plain requirements prescribed by the statute which are legally
essential to the validity of every lien and without which it cannot exist or be enforced. As is
well stated by Phil. Mech. Liens, 9, a lien is a remedy given by law which secures the
preference provided for, but which does not exist, however equitable the claim may be, unless
the party brings himself within the provisions of the statute, and shows a substantial
compliance with all its essential requirements. As stated in the case of Malter v. Falcon
Mining Co., 18 Nev. 213, 2 Pac. 51, whatever is made necessary to the existence of the lien
must be performed, or the attempt to create it will be futile. A substantial adherence to the
terms of the statute in the notice of the lien in indispensable. The omissions, if any, in the
notice and claim as recorded, cannot, in essential particulars, be aided by any averments in the
complaint or by extrinsic evidence. (Bertheolet v. Parker, 43 Wis. 551; Santa Monica L. &
M. Co. v. Hege, 119 Cal. 379, 51 Pac. 555; Malone v. Big Flat Co., 76 Cal. 578, 18 Pac. 772;
Reed v. Norton, 90 Cal. 590, 26 Pac. 767, 27 Pac. 426; Wagner v. Hansen, 103 Cal. 104, 37
Pac. 195.)
The object of a lien, in addition to notifying the owner of what is claimed and securing the
lienor's rights, is to apprise prospective purchasers, or persons who might desire to become
interested in the property, of the nature of the claim against the property, and under what
conditions, if they acquire the property, they must assume the same. Our statute provides,
among other things, that a lien must contain "a statement of the terms, time given, and
conditions of the contract."
provides, among other things, that a lien must contain a statement of the terms, time given,
and conditions of the contract. (Section 3885, Comp. Laws.) No one can definitely say from
the vague statement in the lien purporting to set forth the conditions of the contract upon
which this lien is based whether or not the house was to receive one, two, or three coats of
paint, or whether the outside work on the house called for the shingling of the roof, the
construction of an additional porch, or the building or repairing of a fence or walk around the
premises, and would not be sufficiently explicit to a prospective purchaser of the property, or
to any one who might desire to become interested in the same, whether, if he assumed the
lien, he would secure the value called for by the contract upon which the lien was based.
Wherever an express contract is entered into, as was the case in the present action, the terms
and conditions of such contract should be substantially set out in the lien filed sufficiently
clear to inform any reasonable person of what work was intended to be performed or material
furnished as originally agreed on between the parties.
The vague statement in the lien heretofore quoted, attempting to state the terms and
conditions of the contract, does not substantially comply with this essential provision of the
statute, and thereby renders the lien void. Nothing in this judgment shall be construed as
affecting the rights of the parties, except in so far as it relates to the validity of the lien.
The judgment of the lower court is affirmed.
____________
29 Nev. 385, 385 (1907)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1907.
____________
29 Nev. 385, 385 (1907) Ex Parte Tani
[No. 1721.]
Ex Parte S. TANI.
1. Criminal LawSentenceErroneous in PartEffect. On conviction of a felony, the
sentence imposed was within the discretion vested in the district court as to the amount of the fine and the
time of alternative imprisonment in the event that the fine was not paid, and was erroneous only in that it
declared that such alternative imprisonment should be in the state prison, whereas, under the express
provisions of Comp. Laws, 2667, it should have declared that the same should be in the county jail. Held,
that, in habeas corpus proceedings, such direction as to the place of imprisonment might be rejected as
surplusage, and did not vitiate the entire sentence.
Application by S. Tani for a writ of habeas corpus against the Warden of the State Prison.
Denied, and the warden of the state prison directed to deliver petitioner to the sheriff of
Washoe County, Nevada, to be by him detained in the county jail for the remainder of the
term of imprisonment imposed by his sentence, unless the part of the fine remaining
unsatisfied be sooner paid.
Benj. Curler, for Petitioner:
I. We contend in this case that the court exceeded its jurisdiction in imprisoning the
petitioner in the state prison for five hundred days, and that there is no provision of law
authorizing the court to imprison the petitioner in the state prison, for five hundred days,
or any other number of days.
29 Nev. 385, 386 (1907) Ex Parte Tani
for five hundred days, and that there is no provision of law authorizing the court to imprison
the petitioner in the state prison, for five hundred days, or any other number of days. The
court had, under Comp. Laws, 4701, jurisdiction to impose a fine upon the petitioner of one
thousand dollars, but imprisonment for five hundred days is illegal and void. Comp. Laws,
2267, is as follows: Whenever any prisoner, under conviction for any criminal offense, shall
be confined in jail for any inability to pay any fine, forfeiture, or costs, or to procure sureties,
the district court, upon satisfactory evidence of such inability, may, in lieu thereof, confine
such person in the county jail, at the rate of two dollars per day, until the fine, forfeiture, or
costs so imposed shall have been satisfied. Under this section the court certainly received
satisfactory evidence, after the writ of execution had been returned and satisfied, that the
petitioner was unable to pay his fine, and the most that he could do would be to confine the
petitioner in the county jail at the rate of two dollars per day until the fine was satisfied. If the
judgment of the court is not warranted and authorized by law, or that portion of it, which
confines him in the penitentiary, exceeds the jurisdiction of the court, then the relator's
imprisonment is illegal, and he has a right to be discharged on the writ of habeas corpus.
(People v. Liscomb, 60 N. Y. 559, and authorities cited.) When a person is held under a
judgment of a court made without authority of law, the proper tribunal, will, upon habeas
corpus, look into the records so far as to ascertain this fact; and if it be found to be so, will
discharge the prisoner. (Ex parte Lange, 18 Wall. 163.) The judgment of the court in
confining the relator in the state prison is void, because in excess of that which by law the
court had power to make. (Bigelow v. Forrest, 9 Wall. 339.) On application for a writ of
habeas corpus the judgment under which the prisoner is held is a unit, and if one portion of it
is without the jurisdiction of the court which made it, the whole is void. (Ex parte Kelly, 65
Cal. 154; Ex parte Bernert, 62 Cal. 524.)
II. Where an offender is sentenced for a longer term of imprisonment than is prescribed
for the particular offense, or where he is condemned to pay a fine and be imprisoned for an
offense which is punishable by fine or imprisonment, or where the sentence is severable
and a part of it is of the nature prescribed by law and the other part is not, as where an
offender is sentenced to imprisonment in the penitentiary and to pay a fine, when the
punishment authorized by law for the particular offense is a fine and imprisonment in the
county jail, the authorities hold that an excessive sentence is invalid in toto, and a
discharge on habeas corpus has been granted on that ground.
29 Nev. 385, 387 (1907) Ex Parte Tani
or where he is condemned to pay a fine and be imprisoned for an offense which is punishable
by fine or imprisonment, or where the sentence is severable and a part of it is of the nature
prescribed by law and the other part is not, as where an offender is sentenced to imprisonment
in the penitentiary and to pay a fine, when the punishment authorized by law for the particular
offense is a fine and imprisonment in the county jail, the authorities hold that an excessive
sentence is invalid in toto, and a discharge on habeas corpus has been granted on that ground.
(15 Am. & Eng. Ency. Law, 2d ed. 172; Ex parte Page, 49 Mo. 291.) The above case was
decided under a statute providing that when a prisoner is brought up on habeas corpus, if it
appears that he is in custody by virtue of process of any court or judicial officer, he can be
discharged only in one of the following cases: FirstWhere the jurisdiction of such court or
officer has been exceeded, either as to matter, place, sum, or person. * * * SixthWhere the
process is not authorized by any judgment, order, or decree, nor by any provision of law.
(See, also, Ex parte Mooney, 26 W. Va. 36; Ex parte Cox, 32 Pac. 197.)
R. C. Stoddard, Attorney-General, for Respondent:
I. The court had jurisdiction to impose said fine, and in default of the satisfaction thereof
to order that defendant be imprisoned in the state prison of the State of Nevada, for the
period of five hundred days, or for one day for each and every two dollars of the said fine not
satisfied. (Comp. Laws, 3988, 4413, 4418, 4646, 4701.)
II. Even if, as petitioner contends, he should have been sentenced to the county jail, he is
not entitled to his release on habeas corpus, as the place of confinement is no part of the
judgment, and, if the conviction is valid, he could be remanded to the custody of the trial
court to be dealt with according to law. (In re Harris, 35 Atl. 55; People v. Kelly, 97 N. Y.
252; Ex parte Symons, 62 Ala. 416; Koepe v. Hill, 87 Am. St. Rep. 192.)
By the Court, Talbot C. J.:
Defendant was indicted for the crime of assault with intent to kill. He entered a plea of
guilty of assault with a deadly weapon with intent to inflict upon the person of another a
bodily injury, where no considerable provocation appears, and the sentence of the court
was that he be fined $1,000, and, in the event the fine be not paid, that he be imprisoned
in the state prison for a period of 500 days, or one day for each and every $2 of the fine
not satisfied.
29 Nev. 385, 388 (1907) Ex Parte Tani
weapon with intent to inflict upon the person of another a bodily injury, where no
considerable provocation appears, and the sentence of the court was that he be fined $1,000,
and, in the event the fine be not paid, that he be imprisoned in the state prison for a period of
500 days, or one day for each and every $2 of the fine not satisfied. No payment being made
he was committed to the custody of the warden of the state prison, and now asks to be
released by writ of habeas corpus, asserting that the district court was without jurisdiction to
confine him in that institution, and that therefore the sentence is void.
Section 4701 of the Compiled Laws of Nevada provides: An assault with a deadly
weapon, instrument, or other thing, with an intent to inflict upon the person of another a
bodily injury, where no considerable provocation appears, or where the circumstances of the
assault show an abandoned and malignant heart, shall subject the offender to imprisonment in
the state prison not less than one year, or exceeding two years, or to a fine not less than one
thousand nor exceeding five thousand dollars, or to both such fine and imprisonment.
Section 3988: A felony is a public offense punishable with death, or by imprisonment in the
territorial prison. Section 4413: A judgment that the defendant pay a fine may also direct
that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment,
which shall not exceed one day for every two dollars of the fine, or in that proportion.
Section 4418: If the judgment be imprisonment, or a fine and imprisonment until it be
satisfied, the defendant shall forthwith be committed to the custody of the proper officer, and
by him detained until the judgment be complied with. Section 4646: If the fine be not paid
the court may order the defendant to be imprisoned one day for each two dollars of the fine
not paid. Section 2267: Whenever any prisoner, under conviction for any criminal offense,
shall be confined in jail for any inability to pay any fine, forfeiture, or costs, or to procure
sureties, the district court, upon satisfactory evidence of such inability, may, in lieu thereof,
confine such person in the county jail, at the rate of two dollars per day, until the fine,
forfeiture, or cost so imposed shall have been satisfied."
29 Nev. 385, 389 (1907) Ex Parte Tani
or cost so imposed shall have been satisfied. Section 3761 provides that it shall be the duty
of the judge hearing the writ of habeas corpus, if the time during which such party may be
legally detained in custody has not expired, to remand such party, if it shall appear that he is
detained in custody by virtue of the final judgment or decree of any competent court of
criminal jurisdiction, or of any process issued upon such judgment or decree, or in cases of
contempt of court; and section 3762 that: If it appears on the return of the writ of habeas
corpus that the prisoner is in custody by virtue of process from any court of this territory, or
judge or officer thereof, such prisoner may be discharged, in any one of the following cases,
subject to the restrictions of the last preceding section: FirstWhen the jurisdiction of such
court or officer has been exceeded. SecondWhen the imprisonment was at first lawful, yet
by some act, omission, or event, which has taken place afterwards, the party has become
entitled to be discharged. ThirdWhen the process is defective in some matter of substance
required by law, rendering such process void. FourthWhen the process, though proper in
form, has been issued in a case not allowed by law. FifthWhen the person having the
custody of the prisoner is not the person allowed by law to detain him. SixthWhere the
process is not authorized by any judgment, order, or decree of any court, nor by any provision
of law.
On behalf of petitioner, it is urged that under section 2267 the district court was without
jurisdiction to order the defendant imprisoned in any place other than the county jail, and that
the direction in the judgment that he be confined in the state prison, in lieu of payment of the
fine, was unauthorized and rendered the whole judgment void.
Of the cases relied upon by him the first four following support this contention:
In Ex parte Page, 49 Mo. 291, the sentence of ten years for grand larceny was excessive,
and it was held that the court had no power to reduce the term of imprisonment so as to bring
it within the statutory limit, and the prisoner was discharged.
29 Nev. 385, 390 (1907) Ex Parte Tani
In Ex parte Cox, 32 Pac. 197, 3 Idaho, 530, 95 Am. St. Rep. 29, an Idaho case, the
defendant was convicted of an assault with a deadly weapon likely to produce great bodily
harm, and sentenced to confinement in the state prison for the term of five years when, the
statutory penalty was imprisonment not exceeding two years, or a fine of $5,000, or both. The
judgment was declared void, and the petitioner released.
In Ex parte Kelly, 65 Cal. 154, 3 Pac. 673, it was held that the portion of judgment
requiring the performance of labor on the streets was not authorized, that the judgment was a
unit, and that this portion of it, being without the jurisdiction of the court, made the whole
void.
Ex parte Bernert, 62 Cal. 524, is of similar effect.
But the views of the courts regarding the proposition involved are as numerous and varied
as the different liquors from the magician's bottle. The most of the decisions, and especially
those more in consonance with reason and justice, are averse to the discharge of criminals
who have been duly convicted when the application for their release is by petition for habeas
corpus based on some error, omission, or mistake in the sentence which might have been
cured or corrected by writ of error or appeal. As we shall see, the Supreme Court of
California has not always been consistent in its opinions, and the doctrine advanced by the
foregoing cases has been severely criticised by the Supreme Courts of the United States, of
Pennsylvania, and Massachusetts, and is contrary to the weight of authority.
In Ex parte Max, 44 Cal. 580, it was said: The application for the writ of habeas corpus
made here proceeds upon the ground that the judgment, under the circumstances appearing, is
not merely erroneous, but is void in the absolute sense, and so affords no authority to the
warden of the prison to detain the petitioner. We are of opinion, however, that the position
cannot be maintained. The indictment upon which the judgment is founded is sufficient in all
respects. The offense of which the petitioner was convicted was one within the scope of the
indictment, and the judgment one which the county court had the authority to render upon the
appearance and plea of the petitioner. These conditions constitute jurisdiction.
29 Nev. 385, 391 (1907) Ex Parte Tani
constitute jurisdiction. All others involve questions of mere error, and the latter cannot be
inquired into upon writ of habeas corpus, but only upon proceedings in error. The obvious
distinction between the office of a writ of error or an appeal, on the one hand, and a writ of
habeas corpus upon the other, was not presented, but was overlooked in Ex parte Ah Cha et
al., 40 Cal. 426, which was a writ of habeas corpus heard and determined at chambers, and
that case must in that respect be overruled.
In Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59, it was held that, where the court has
jurisdiction of the subject-matter and of the person, and pronounces a severable judgment or
sentence, one part of which is authorized by law, and another distinct part which is not
authorized, the prisoner will not be discharged on habeas corpus, when it does not appear that
he has undergone the full punishment imposed by the legal portion of the sentence. It was
said that, as to that part which the court had the power to pronounce, the sentence was valid
upon proceeding for habeas corpus; that errors which rendered the judgment merely voidable
and not absolutely void could not be inquired into under such a writ (citing In re Prime, 1
Barb. 340; State v. Shattuck, 45 N. H. 211; Ross' Case, 2 Pick. 171; Ex parte Watkins, 3 Pet.
201, 7 L. Ed. 650), and that, if the judgment is in excess of that which the court rendering it
by law had the power to pronounce, such judgment is void for the excess only (citing Brook's
Case, 4 Leigh, 669; Murry's Case, 5 Leigh, 724; Hall's Case, 6 Leigh, 615, 29 Am. Dec. 236;
People v. Liscomb, 60 N. Y. 560, 19 Am. Rep. 211; Feeley's Case, 12 Cush. 598; Ex parte
Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; People v. Markham, 7 Cal. 208; People v. Baker, 89 N.
Y. 467.)
At page 43 of 26 W. Va., in regard to the Missouri case (Ex parte Page) relied upon here
by petitioner and cited above, it was said: but, if that case could be regarded as decided upon
principle, it must be disapproved, since it is not only contrary to the general rules
hereinbefore stated, but it is in positive conflict with numerous other and seemingly better
considered decisions of courts of other states.
29 Nev. 385, 392 (1907) Ex Parte Tani
(In re Petty, 22 Kan. 277; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; People v. Jacobs, 66 N.
Y. 9; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; People v. Baker, 89 N. Y. 460.)
In People v. Cavanagh, 2 Parker, Cr. R. 66, release was sought from an erroneous
sentence and imprisonment. It was held that there was no force in the point raised that the
defendant should have been sentenced to the penitentiary and not to the county jail; that, if it
were error to designate the county jail as the place of confinement, it could not be reviewed
and corrected in a habeas corpus proceeding, and was no ground for his discharge.
In Ex parte Bond, 9 S. C. 80, 30 Am. Rep. 20, the prisoner had been convicted of an
assault with intent to kill, and sentenced to confinement at hard labor in the penitentiary. The
court held that the offense was not punishable by imprisonment in the state penitentiary; that
the sentence was therefore erroneous, but not void, and refused to discharge the petitioner on
habeas corpus.
In People v. Kelly, 97 N. Y. 212, upon a conviction for assault in the third degree, the
sentence was to imprisonment at hard labor in the state prison for one year. The court of
appeals held that the offense was a misdemeanor, that the sentence was excessive upon a
valid conviction, but refused to discharge the prisoner and remanded him to the sheriff to be
further dealt with by the trial court.
In Re Graham, 74 Wis. 451, 43 N. W. 148, 17 Am. St. Rep. 174, it was held that a
judgment sentencing a person to imprisonment for a longer term than the statute authorizes is
merely erroneous, and not void for want of jurisdiction. The court proceeded: We deny the
writs, for the reason that the error in the judgments does not render them void, or the
imprisonment under them illegal, in that sense which entitles them to be discharged on a writ
of habeas corpus. The judgments are doubtless erroneous, and would be reversed on writ of
error. (Fitzgerald v. State, 4 Wis. 395; Haney v. State. 5 Wis. 529; Benedict v. State, 12 Wis.
314; Peglow v. State, 12 Wis. 534.) But the judgments are not void. (State ex rel. Welch v.
Sloan, 65 Wis. 647, 27 N. W. 616.) The court had jurisdiction of the persons and
subject-matter or offense, but made a mistake in the judgment.
29 Nev. 385, 393 (1907) Ex Parte Tani
but made a mistake in the judgment. For mere error, no matter how flagrant, the remedy is not
by habeas corpus. The law is well settled in this court that on habeas corpus only
jurisdictional defects are inquired into. The writ does not raise questions of errors in law or
irregularities in the proceedings. (In re Crandall, 34 Wis. 177; In re Pierce, 44 Wis. 444.)
In Ex parte Van Hagan, 25 Ohio St. 432, sentence had been pronounced under a statute
which had been repealed. The Supreme Court of Ohio stated: The punishment inflicted by
the sentence, in excess of that prescribed by the law in force, was erroneous and voidable, but
not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the
remedy that the relator should have resorted to in order to obtain a discharge from illegal
imprisonment, and not habeas corpus, which is not the proper mode of redress where the
relator was convicted of a criminal offense and erroneously sentenced to excessive
imprisonment therefor by a court of competent jurisdiction. Ex parte Stephen M. Shaw, 7
Ohio St. 81, 70 Am. Dec. 55, approved and followed on this point.
In Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344, it was claimed that the
commitment of a juvenile offender to the state board, to be sent to the Lyman School, was not
authorized and was not the proper place. The Supreme Court of Massachusetts said: If there
was in the sentence or the prior proceedings any irregularity affecting the validity of the
judgment, it can be corrected upon a writ of error. But neither irregularities nor errors, so far
as they were within the jurisdiction of the court, can be inquired into upon a writ of habeas
corpus. (Clarke's Case, 12 Cush. 320; Herrick v. Smith, 1 Gray, 1, 50, 61 Am. Dec. 381;
Adams v. Vose, 1 Gray, 51; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Siebold, 100
U. S. 371, 373, 25 L. Ed. 717; In re Underwood, 30 Mich. 502; Platt v. Harrison, 6 Iowa 79,
71 Am. Dec. 389.) That a writ of habeas corpus cannot perform the functions of a writ of
error, in relation to proceedings of a court within its jurisdiction, is universally agreed. The
only conflict of authority touching the subject is in regard to what acts are open to inquiry
upon the question of jurisdiction.
29 Nev. 385, 394 (1907) Ex Parte Tani
subject is in regard to what acts are open to inquiry upon the question of jurisdiction. It is
held in this state, and by good authorities elsewhere, that the constitutionality of a law which
a court is attempting to apply lies at the foundation of the jurisdiction under it, and may be
called in question upon habeas corpus. (Herrick v. Smith, 1 Gray, 1, 49, 61 Am. Dec. 381; Ex
parte Siebold, 100 U. S. 371, 25 L. Ed. 717; People v. Roff, 3 Parker, Cr. R. 216.) But this
doctrine has been contradicted, and action founded upon an unconstitutional law has been
held a mistake which can only be corrected upon a writ of error. (In re Harris, 47 Mo. 164.)
So there has been diversity of opinion among different courts as to sentences which are not
authorized by law. The better rule seems to be that where a court has jurisdiction of the
person, and of the offense, the imposition by mistake of a sentence in excess of what the law
permits is within the jurisdiction, and does not render the sentence void, but only voidable by
proceedings upon a writ of error. (Ross' Case, 2 Pick. 165; Feeley's Case, 12 Cush. 598, 599;
Semler, Petitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van
Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 440; Kirby v. State, 62 Ala. 51; Lark v.
State, 55 Ga. 435.) It has sometimes been held that such a sentence is legal so far as it is
within the provisions of law, and void as to the excess. (People v. Jacobs, 66 N. Y. 8; People
v. Baker, 89 N. Y. 460; Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696.)
Extracts from other decisions pertinent to the inquiry at hand are:
Justice Holmes, speaking for the court, in Re Stalker, 167 Mass. 12, 44 N. E. 1068, said:
We assume, as contended for the petitioner that there was error in his sentence because it did
not include solitary imprisonment. (Lane v. Commonwealth, 161 Mass. 120, 122, 36 N. E.
755.) But on a writ of error this could be corrected. (Pub. St. 1882, c. 187, sec. 13; Jacquins
v. Commonwealth, 9 Cush. 279.) * * * Manifestly, it would be an absurd result if the
petitioner could get his discharge on habeas corpus when he could not get it by a regular
proceeding to reverse his sentence. But whether the sentence could be corrected or could
not be, the rule which has been approved by this court denies relief by habeas corpus
when the court has jurisdiction to sentence the petitioner, and errs simply in regard to the
extent of the punishment.
29 Nev. 385, 395 (1907) Ex Parte Tani
the sentence could be corrected or could not be, the rule which has been approved by this
court denies relief by habeas corpus when the court has jurisdiction to sentence the petitioner,
and errs simply in regard to the extent of the punishment. (Sennot's Case, 146 Mass. 489,
492, 493, 16 N. E. 448, 4 Am. St. Rep. 344; Feeley's Case, 12 Cush. 598, 599.) See Ex parte
Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Ct.
987, 40 L. Ed. 88.)
Petition of Bishop, 172 Mass. 36, 51 N. E. 191: The general rule is that where the court
has jurisdiction, and errs merely in regard to the punishment, relief will not be granted by
habeas corpus, but that the remedy is by a writ of error, in which the mistake can be corrected
and such sentence pronounced as should have been imposed. (Ross' Case, 2 Pick. 165, 172;
Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; Stalker, Petitioner, 167
Mass. 11, 44 N. E. 1068; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In
re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88.) In exceptional cases relief may be
granted by habeas corpus, or questions of constitutionality considered. (Feeley's Case, 12
Cush. 598; Plumley's Case, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839.) We discover
nothing in this case which takes it out of the general rule.
In re Belt, 159 U. S. 100, 15 Sup. Ct. 988, 40 L. Ed. 88: The general rule is that the writ
of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is
without jurisdiction; and that it cannot be used to correct errors. Ordinarily, the writ will not
lie where there is a remedy by writ of error or appeal; but in rare and exceptional cases it may
be issued, although such remedy exists.
Elsner v. Shrigley, 80 Iowa, 35, 45 N. W. 393: In Jackson v. Boyd, 53 Iowa, 536, 5 N. W.
734, it is expressly stated that a failure to fix the time in the judgment would not render it
void'; and also the extent of the imprisonment is fixed and declared by the statute, and when
the defendant has been imprisoned the required length of time he is entitled to be discharged.'
Without attaching to this language a broader signification than is required by the facts
considered, it sustains the view that the law is a limitation as to the extent of the
imprisonment, when no time is fixed in the judgment, and is against the view that the
judgment is void because under it the imprisonment might be 'indefinite'; that is, to the
time of the actual payment of the judgment.
29 Nev. 385, 396 (1907) Ex Parte Tani
the imprisonment, when no time is fixed in the judgment, and is against the view that the
judgment is void because under it the imprisonment might be indefinite'; that is, to the time
of the actual payment of the judgment. We reach the conclusion that habeas corpus is not
available to question the correctness of the proceedings of the district court with reference to
the judgment in question. Our conclusion has support, more or less direct, in many cases, and
among them are Turney v. Barr, 75 Iowa, 758, 38 N. W. 550; Hurd. Hab. Corp. 2d ed. 328;
Cooley, Const. Lim. 347; Shaw v. McHenry, 52 Iowa, 182, 2 N. W. 1096; State v. Orton, 67
Iowa, 554, 25 N. W. 775; Platt v. Harrison, 6 Iowa, 79, 71 Am. Dec. 389; Zelle v. McHenry,
51 Iowa, 572, 2 N. W. 264; Herrick v. Smith, 1 Gray, 50, 61 Am. Dec. 381; Adams v. Vose, 1
Gray, 51; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Siebold, 100 U. S. 371, 25 L.
Ed. 717; In re Underwood, 30 Mich. 502; Ross' Case, 2 Pick. 165; Feeley's Case, 12 Cush.
598; Semler, Petitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex
parte Van Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 440; Kirby v. State, 621 Ala.
51; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Sennot's Case, 146 Mass. 489, 16 N.
E. 448, 4 Am. St. Rep. 344; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. It is said the
judgment of imprisonment, by not fixing a limit, is indefinite; but the law itself defeats such a
claim, for beyond its limits the judgment is void, and this proceeding is available for
protection against illegal imprisonment.
In People v. Kelly, 97 N. Y. 212, the defendant had been convicted of assault in the third
degree and sentenced to imprisonment at hard labor in the state prison, and it was held that,
while the sentence was void, as the conviction was valid, the prisoner was not entitled to
discharge upon habeas corpus, but should be remanded to the custody of the sheriff.
In Re Harris, 68 Vt. 243, 35 Atl. 55, on habeas corpus, it appeared that the petitioner was
properly convicted. The sentence of imprisonment in the state prison was void. It was held
that, while he was unlawfully in the state prison, he was not unlawfully restrained, and should
be remanded to the sheriff of the county in which he was convicted, to be resentenced.
29 Nev. 385, 397 (1907) Ex Parte Tani
to the sheriff of the county in which he was convicted, to be resentenced.
In Ex parte McGuire, 135 Cal. 339, 67 Pac. 327, Am. St. Rep. 105, it was held that the
writ of habeas corpus lies not only when the prisoner is entitled to his liberty, but also when
he is held by one person, and another is entitled to his custody. Chief Justice Beatty, speaking
for the court, said: My conclusion is that the imprisonment of the petitioner in the county
jail, in execution of his sentence for the misdemeanor, is unwarranted and illegal; but it does
not follow, as he contends, that he should be set at liberty. He is entitled to the benefit of the
writ of habeas corpus only so far as necessary to secure him in his legal right to be placed in
the proper custody. It is therefore ordered that he be remanded to the custody of the sheriff for
the purpose of delivery forthwith to the warden of the state prison.
In Kingen v. Kelley, 28 Pac. 44, 3 Wyo. 566, 15 L. R. A. 177, the court quoted approvingly
from O'Brien v. Barr, 49 N. W. 68, 83 Iowa, 51: The imprisonment and its duration could
alone be determined by the court. But fixing the particular penitentiary in which the petitioner
should be confined is not a part of the judgment. The effect and duration of confinement is all
that was judicially determined by the judgment.'
In Ex parte Waterman, 33 Fed. 29, the petitioner was sentenced to hard labor in the state
prison at Auburn for three years, but the marshal ascertained on his arrival with her that the
state law did not allow female prisoners in that institution. Later the court, in her absence,
made an order substituting the Erie County penitentiary. The court denied the petition for writ
of habeas corpus, and remanded the prisoner, on the ground that the order fixing the place of
imprisonment was not necessarily a part of the judgment.
In Re McDonald, 33 Pac. 22, 4 Wyo. 150, the court cited with approval Elsner v. Shrigley,
supra, and People v. Foster, 104 Ill. 156, and said: The judgment * * * does not in itself fix
the term or rate of imprisonment for the failure to pay * * * the fine imposed; but, if this were
erroneous, it could only be reached by proceedings in error.
29 Nev. 385, 398 (1907) Ex Parte Tani
it could only be reached by proceedings in error. It is not the office of a writ of habeas corpus
to correct errors or irregularities of a trial court.
In re Bonner, 151 U. S. 258, 259, 260, 14 Sup. Ct. 323, 326, 327, 38 L. Ed. 149: When
the jury have rendered their verdict, the court has to pronounce the proper judgment upon
such verdict, and the law, in prescribing the punishment, either as to the extent, or the mode,
or the place of it, should be followed. If the court is authorized to impose imprisonment, and
it exceeds the time prescribed by law, the judgment is void for the excess. If the law
prescribes a place of imprisonment, the court cannot direct a different place not authorized. It
cannot direct imprisonment in a penitentiary, when the law assigns that institution for
imprisonment under judgments of a different character. * * * A question of some difficulty
arises, which has been disposed of in different ways, and that is as to the validity of a
judgment which exceeds in its extent the duration of time prescribed by law. With many
courts and judgesperhaps with the majoritysuch judgment is considered valid to the
extent to which the law allowed it to be entered, and only void for the excess. * * * The
prisoner is ordered to be confined in the penitentiary, where the law does not allow the court
to send him for a single hour. To deny the writ of habeas corpus in such a case is a virtual
suspension of it, and it should be constantly borne in mind that the writ was intended as a
protection of the citizen from encroachment upon his liberty from any source, equally as well
from the unauthorized acts of courts and judges as the unauthorized acts of individuals. * * *
The judges of all courts of record are magistrates, and their object should be, not to turn loose
upon society persons who have been justly convicted of criminal offenses, but, where the
punishment imposed, in the mode, extent, or place of its execution, has exceeded the law, to
have it corrected by calling the attention of the court to such excess. We do not perceive any
departure from principle or any denial of the petitioner's right in adopting such a course. He
complains of the unlawfulness of his place of imprisonment. He is only entitled to relief
from that unlawful feature, and that he would obtain if opportunity be given to that court
for correction in that particular.
29 Nev. 385, 399 (1907) Ex Parte Tani
entitled to relief from that unlawful feature, and that he would obtain if opportunity be given
to that court for correction in that particular. * * * Some of the state courts have expressed
themselves strongly in favor of the adoption of this course, where the defects complained of
consist only in the judgment, in its extent, or mode, or place of punishment, the conviction
being in all respects regular. In Beale v. Commonwealth, 25 Pa. 11, 22, the Supreme Court of
Pennsylvania said: The common law embodies in itself sufficient reason and common sense
to reject the monstrous doctrine that a prisoner, whose guilt is established, by a regular
verdict, is to escape punishment altogether, because the court committed an error in passing
the sentence. If this court sanctioned such a rule, it would fail to perform the chief duty for
which it was established.'
This court has decided that the writ of habeas corpus is not intended to take the place of an
appeal, writ of error, or certiorari, and cannot be used for the purpose of reviewing errors or
irregularities in the proceedings of a court having jurisdiction (Ex parte Smith, 2 Nev. 338; Ex
parte Maxwell, 11 Nev. 428; Ex parte Winston, 9 Nev. 71; Ex parte Twohig, 13 Nev. 302; Ex
parte Bergman, 18 Nev. 331, 4 Pac. 209); that, if the prisoner is held under a valid
commitment, the legality of other commitments need not be considered until his term of
service under the good commitment has expired (Ex parte Ryan, 17 Nev. 139, 28 Pac. 1040;
Ex parte Ryan, 10 Nev. 261); that under this writ the court will review the question of the
constitutionality of an act under which petitioner has been convicted, and if the act is
unconstitutional discharge him (Ex parte Rosenblatt, 19 Nev. 439, 14 Pac. 298, 3 Am. St.
Rep. 901; Ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47; Ex parte Kair, 28 Nev.
127, 80 Pac. 463, and cases therein cited); that the petitioner will be released from an order
committing him for contempt for an act not committed in the immediate view of the court,
when the court was without jurisdiction to make such order by reason of its failure to first
require an affidavit and to cite the offender to show cause why he should not be punished (Ex
parte Hedden, 29 Nev. 352, 90 Pac. 737); and that the addition of the words "at hard labor"
in the sentence, although not authorized by statute, would be treated as mere surplusage
and in no manner affecting the validity of the judgment {Ex parte Maher, 25 Nev. 424
29 Nev. 385, 400 (1907) Ex Parte Tani
at hard labor in the sentence, although not authorized by statute, would be treated as mere
surplusage and in no manner affecting the validity of the judgment (Ex parte Maher, 25 Nev.
424, 62 Pac. 1).
From these cases it is apparent that a few courts have held that, where the sentence upon a
valid conviction is excessive or erroneous in part, the whole of the judgment must fall as
being without the jurisdiction of the court, and that the convicted criminal must be
discharged, while others hold that the sentence may be corrected and the proper punishment
inflicted, others that it is void only as to the excessive punishment it orders, others that the
erroneous sentence will stand and be enforced against habeas corpus proceedings, and can
only be attacked or corrected by the regular methods of appeal or writ of error, and still other
courts, among which are notably the Supreme Courts of the United States, of Massachusetts,
and Nevada, adhere to the latter rule generally, but allow some elasticity and exceptions for
the correction of errors, where the petitioner is restrained under an unconstitutional act, or
there is some special urgency and hardship, and the sentence was wholly or partly
unauthorized.
If the rule, supported by the decisions upon which petitioner relies, holding that the
sentence is void where it specifies a longer period, or different place for the imprisonment, or
a heavier fine, than the statute warrants, was adopted by this court, it might lead to grave
injustice in the future, for under it, in cases having some omission or mistake in the judgment,
criminals sentenced after due conviction of the most heinous crimes would have to be
released and turned loose upon the community. If, after conviction of murder in the first
degree, the district court should sentence the accused to be hanged in the yard of the county
jail under the former law and the practice in this commonwealth, instead of at the state prison,
under the more recent statute now in force, the sentence would be void, and the defendant
would have to be discharged. Justice ought not to be thwarted by such strained technicalities.
We cannot favor such a rule, and we are impelled to join those courts which have determined
against it.
29 Nev. 385, 401 (1907) Ex Parte Tani
It will be perceived that section 2267, Comp. Laws, is the only one which specifies the
place of imprisonment in lieu of the payment of a fine, and that it directs that, whenever a
prisoner, upon conviction for any criminal offense, fails to pay the fine, the district court may
imprison him in the county jail at the rate of $2 per day until the fine or forfeiture imposed
shall have been satisfied. In this connection no distinction is made in regard to the grade of
the crime, and there is no limitation to misdemeanors. Under section 4701, the defendant was
guilty of a felony, and could have been sentenced directly to the state prison for not less that
one nor exceeding two years, or to pay a fine of not less than $1,000 nor exceeding $5,000, or
to both. But the language of this section does not provide for confinement in the state prison
or elsewhere in lieu of the payment of the fine, and there is nothing in this section or the
others which authorized the court to commit the defendant to the state prison upon his failure
to pay.
And when we turn to section 2267, the one which does provide for imprisonment as an
alternative in lieu of nonpayment, the language fixes the place of confinement as such
alternative in all cases, and without making any distinction between felonies and
misdemeanors, at the county jail. The fine imposed was authorized, being the minimum
amount specified in the statute, and the judgment follows the other provisions in ordering that
the defendant be imprisoned at the rate of $2 per day upon his failure to pay the fine. The only
error in the sentence was the direction that the defendant work out the fine in the state prison,
when the statute specifies the county jail. If he had been fined the maximum of $5,000,
instead of $1,000, it would take him about seven years to work out the fine at the rate of $2
per day. Whether it would be better to have a statute, such as exists in some states, providing
that where the fine exceeds $500, or a specified amount, or the imprisonment may exceed six
months or one year, the confinement in lieu of the payment of a fine shall be in the state
prison, is a matter for the legislature, and not for the courts, to regulate. It is our duty to
enforce these statutes as we find them.
29 Nev. 385, 402 (1907) Ex Parte Tani
The sentence being in accordance with the law and within the discretion vested in the
district court as to the amount of the fine and the time of the alternative imprisonment
imposed, and being erroneous only as to a matter which is definitely fixed by the statute, the
place of confinement, and regarding which no court has any discretion or power to change, it
seems unnecessary to have the judgment of the district court modified, even if the mistake
may be considered as one apparent upon the record and of the kind usually corrected by
courts upon mere suggestion or of their own volition. The direction that the confinement be in
the state prison may be rejected as surplusage and of no force or effect, in the face of the
statute which controls and fixes the county jail as the place of imprisonment, without it being
so designated in the judgment. There was a necessity for the correction of the sentence as
ordered by the Supreme Court of the United States in the Bonner case, which does not exist
here. When it was held there that imprisonment in the penitentiary was not authorized by the
federal statute, it became necessary for the trial court to exercise the discretion vested in it
and correct the sentence by designating some one of the different jails it had power to select,
no particular one of which was fixed by the statute for the imprisonment, as in this state.
The warden of the state prison is directed to deliver the petitioner to the sheriff of Washoe
County upon his appearance and demand at the state prison and the latter is ordered to take
the petitioner into custody, and detain him in the county jail of that county for the remainder
of the term of imprisonment imposed by the sentence of the district court, unless that part of
the fine remaining unsatisfied is sooner paid.
____________
29 Nev. 403, 403 (1907) State v. Jackman
[No. 1710.]
THE STATE OF NEVADA, Respondent, v. ALBERT T. JACKMAN (Indicted Under the
Name of JOHN THOMPSON), Appellant.
1. HomicideAdmissibilityThreats. Where, on a trial for murder, self-defense is pleaded,
threats by decedent to kill defendant the first time he saw him, made within an hour of the shooting, are
admissible, though they were not communicated to defendant, on the issue of who was the aggressor.
2. Criminal LawAppealHarmless ErrorErroneous Exclusion of Evidence. An
instruction on a trial for murder, wherein self-defense was pleaded, not to consider evidence of threats
which were not communicated to defendant, was none the less prejudicial error because the threats were
testified to by a prostitute; her testimony, no matter what her character, being admissible for such weight as
the jury might give it.
Albert T. Jackman, indicted under the name of John Thompson, was convicted of murder
in the first degree, and from the judgment and order denying motion for a new trial, defendant
appeals. Reversed, and remanded for a new trial.
Thompson, Morehouse & Thompson, and William Woodburn, for Appellant.
I. The following instruction asked by the state: Threats, however deliberately made, do
not justify an assault and battery, much less the taking of a life of the party making them, and
evidence of threats previously made, if any threats were made, but not communicated to the
defendant, should not be considered by the jury in arriving at their verdict-does not
conflict with the instruction given at the request of defendant, and given by the court of its
own motion. Under the evidence in the case it was a proper instruction, as the evidence shows
that the threat was not communicated to the defendant; therefore, People v. Scoggins, 37 Cal.
676, cited by appellant, is not in point; on the contrary, it is held in People v. Scoggins, 37
Cal. 676, People v. Arnold, 15 Cal. 476, and People v. Iams, 57 Cal.
People v. Scoggins, 37 Cal. 676, People v. Arnold, 15 Cal. 476, and People v. Iams, 57 Cal.
115, that it is not error to exclude evidence of uncommunicated threats made by the deceased.
William Woodburn, for Appellant, in reply:
I. If the defendant was in imminent danger of his life or great bodily harm, it was not
incumbent on him to fly for safety, but he had a right to stand his ground and slay his
adversary. (Hughes, Cr. Law & Proc. 2445, 2446; Greenl. Ev. 850; People v. Thomson, 92
Cal. 511; People v. Hecker, 109 Cal. 463; People v. Gonzales, 71 Cal. 569; People v. Ye
Park, 62 Cal. 204; People v. Farley, 124 Cal. 597.) Under the plea of self-defense the sole
and all-important question at issue was whether the defendant or John Moritz, the deceased,
was the aggressor in the encounter in which the latter lost his life. The threat of deceased to
kill the defendant on sight, testified to by Myrtle Smith, but not communicated to defendant,
should have been submitted to the jury for consideration, and its exclusion by the court was
reversible error.
Thompson, Morehouse & Thompson, for Appellant, in reply:
I. In complaining of the instruction asked by the state, and given by the court, the point is
not that a threat communicated or uncommunicated is a defense or excuse for the defendant
to shoot or kill the deceased, but that such threat, although uncommunicated, is admissible as
testimony, tending to show who was the aggressor, who commenced the affray, who was
most likely to cause the difficulty. Reading the testimony, it will be seen that no person was
present at the time when the trouble commenced but the defendant and the deceased. The
defendant claims he shot in self-defense, that Moritz attempted to draw a pistol. The
defendant was not angry, was not seeking the deceased; but some time within an hour prior to
the shooting we find that the decedent said: I am going to kill the son of a bitch the first time
I see him. Now, the evidence shows that the first time the deceased saw the defendant was
when the shooting took place; that the deceased was armed; that he came down the street
on his bicycle, approached toward the defendant, and, as the defendant says, made an
attempt to draw his pistol, or, to use the language of the defendant: "He rode almost to
me, jumped off his bicycle, and I would not say for sure whether he leaned his bicycle up
against a post or the building; he walked in front of me, headed me off.
place; that the deceased was armed; that he came down the street on his bicycle, approached
toward the defendant, and, as the defendant says, made an attempt to draw his pistol, or, to
use the language of the defendant: He rode almost to me, jumped off his bicycle, and I
would not say for sure whether he leaned his bicycle up against a post or the building; he
walked in front of me, headed me off. I asked him, What do you mean? Do you intend to
make another gun play like you tried at the dance hall?' He answered, Yes (uttered an oath),
and I am going through with it.' As he said that I stepped back; he threw his hand back to his
hip like that (witness illustrating by throwing his left hand back to hip), and as he did so I shot
him. * * * I thought he was going to shoot me; that he was going to kill me if I gave him the
chance. Here we have the true situation, and we ask why did the deceased get off his bicycle,
why head off the defendant? What was the deceased doing there? Was he not hunting the
defendant? Why did he put his hand to the hip pocket? Why did he say, Yes, and I am going
through with it? Now, of course, this is the testimony of the defendant, and subject to be
weighed as to its truth or falsity, but when we find that, less than an hour before, the decedent
had said: I am going to kill the son of a bitch the first time I see him, and we know that this
was the first time he saw the defendant, certainly this threat becomes material, and elucidates
the acts and conduct of the deceased, showing that his express purpose was being carried into
execution, and, while it is no ground excusing the defendant, yet it corroborates and shows
clearly that the defendant was not the aggressor; that he was in fact in danger; and that, had he
not acted, he, himself, would have been shot. It shows the true situation of the parties; and, as
said in People v. Iams, 57 Cal. 120, But while mere words will not justify an assault, they
may possess significance as illustrating or explaining the subsequent acts of the parties, and
determining who was the first aggressor. We offered this testimony for that purpose. It was
not objected to. We carefully limited the testimony to that purpose alone by our instruction,
and the court gave it at our request, in harmony with Wiggins v. People, 93 U. S. 465, where
the court says: "In a trial for homicide, where the question whether the prisoner or the
deceased commenced the encounter which resulted in death is in any manner in doubt, it
is competent to prove threats of violence made against the prisoner by the deceased,
although not brought to the knowledge of the prisoner."
harmony with Wiggins v. People, 93 U. S. 465, where the court says: In a trial for homicide,
where the question whether the prisoner or the deceased commenced the encounter which
resulted in death is in any manner in doubt, it is competent to prove threats of violence made
against the prisoner by the deceased, although not brought to the knowledge of the prisoner.
Now, then, if the prosecution are willing to admit that the deceased commenced the
encounter, then certainly the defendant was entitled to an acquittal upon his plea of
self-defense; but if they deny that point, then the defendant has the right to have the jury pass
upon testimony in the light of this threat, so that the jury may know the intent and purpose of
the deceased to make a deadly assault on sight.
Defendant was indicted for killing John Moritz at Goldfield, Nevada, on September 16,
1907, tried and convicted of murder in the first degree in the District Court of the First
Judicial District of the State of Nevada in and for the County of Esmeralda, and sentenced by
the court to be hanged by the neck until dead. From an order denying defendant's motion for a
new trial, and from the final judgment convicting defendant of murder in the first degree,
defendant appeals.
It appears from the testimony that the defendant, 21 years of age, a gambler by occupation,
about 3 o'clock a.m. of the 16th day of September, 1907, was crossing the main street of
Goldfield on his way to the Royal Cafe for breakfast, when he saw the deceased, John Moritz,
aged 23, whose business appeared to be that of a messenger in the tenderloin district, coming
down the sidewalk on a bicycle, when, according to the defendant, he rode almost to me,
jumped off his bicycle, and I would not say for sure whether he leaned his bicycle up against
a post or the building. He walked down in front of me, headed me off. I asked him: What do
you mean, do you intend to make another gun play like you tried at the dance hall?' He
answered: Yes (uttered an oath), and I am going through with it.' As he said that I stepped
back, he threw his hand back to his hip like that {witness illustrating by throwing his left
hand back to hip), and as he did so I shot him.
back, he threw his hand back to his hip like that (witness illustrating by throwing his left hand
back to hip), and as he did so I shot him. * * * I thought he was going to shoot me; that he
was going to kill me if I gave him the chance. I would not have shot him otherwise, if I did
not think he was going to shoot me. * * * I shot once; that is, two shots were fired from the
gun. One was my intention and purpose. The first I shot on purpose. After the first shot he
staggered, and I cocked my gun, that is, to see if he was going to pull his gun to shoot or kill
me. I stepped sideways toward the Mohawk, and as I did he fell. As he fell my finger was on
the trigger and my thumb cocking the hammer. I had the trigger pulled back with my finger,
and as he fell my thumb slipped off the hammer, and the gun exploded the second time. * * *
I did not fire the second shot intentionally.
There were no witnesses to the commencement of the tragedy. It appears further from the
testimony that the defendant about 1 o'clock of the same morning was in company with one
Sherman Crumley, when Crumley was accidentally run into by deceased on a bicycle in an
alley in the redlight district of Goldfield, whereupon Crumley and Moritz had a wordy
argument, culminating in the deceased, Moritz, drawing a revolver and ordering Crumley to
stand back. A revolver was found on the person of the deceased when brought to the
hospital after the shooting. To the indictment charging defendant with murder in the first
degree, defendant pleaded not guilty, and interposed a plea of self-defense.
During the progress of the trial, a prostitute by the name of Myrtle Smith was introduced
as a witness on the part of the defense, and testified as follows: By Mr. Morehouse: Q.
Where do you reside? A. Goldfield. Q. Did you know in his lifetime a young man by the
name of Moritz. A. Yes, sir. Q. Where did you know him? A. In Goldfield. Q. Did you see
him on or about the morning of the 16th of September? A. Yes, sir. Q. Where? A. Down to
my house. Q. What was he doing there? A. He brought me a lunch down to my house. Q.
About what time was this? A. Some time between 2 and 3 o'clock; I could not exactly tell
the time. Q. In the morning? A. In the morning. Q. On that occasion did he make any
remark of and concerning Albert Jackman, known as Jack Thompson? A. Yes, sir. Q. Will
you state to the jury what he said, and how he came to say it? A. Yes, sir.
time between 2 and 3 o'clock; I could not exactly tell the time. Q. In the morning? A. In the
morning. Q. On that occasion did he make any remark of and concerning Albert Jackman,
known as Jack Thompson? A. Yes, sir. Q. Will you state to the jury what he said, and how he
came to say it? A. Yes, sir. He brought a lunch from the Palm restaurant to me. He went back
and got one for Miss Florence and came back with Miss Florence's lunch and was to take my
empty dishes. I heard him in my room, and stepped into the room, and he said: For Christ's
sake, don't scare me.' I said to him: Why are you so frightened?' He said: Well, I had trouble
down the street with Jack Thompson.' And made the remark: I am going to kill the son of a
bitch the first time I see him.'
The court gave the following instruction to the jury, asked for by the state, which is
assigned as error by the defendant: Threats, however deliberately made, do not justify an
assault and battery, much less the taking of the life of the party making them, and evidence of
threats previously made, if any threats were made, but not communicated to the defendant,
should not be considered by the jury in arriving at their verdict.
The effect of this instruction was to preclude the jury from considering the testimony of
Myrtle Smith testifying to a threat made by the deceased less than an hour before the shooting
against the life of the defendant. The evidence of Myrtle Smith testifying to the threat made
by the deceased against the life of the defendant, under the circumstances in this case, though
uncommunicated to the defendant, was clearly admissible and of such vital importance to the
defendant that the instruction of the court, commanding the jury not to consider this threat in
arriving at their verdict, was of such a prejudicial nature that this case must be reversed. In
cases of self-defense, where the question is doubtful as to who was the aggressor, as is the
fact in the present case, there being no witnesses to the homicide, evidence of threats made
against the life of a defendant preceding the affray, even though uncommunicated, are
admissible. In the present case, a material point at issue was: Who was the aggressor?
was the aggressor? The defendant says the deceased was the aggressor; that he shot the
deceased when the latter threw his hand back into his hip pocket for the purpose, as
defendant believed, according to his testimony, of killing him if he got the chance. No one
was present at this fatal moment but the deceased and the defendant. If this threat testified to
by Myrtle Smith was true, and was made by the deceased, how vitally important this fact then
became to the defendant when the testimony discloses that the first time the deceased saw the
defendant after the making of this threat was the very time when the shooting took place. The
jury were considering whether or not the defendant, according to his plea of self-defense, was
justified in defending his life at the time he shot Moritz. The determination of this fact by the
jury as to who was the aggressor in this case, and in most if not all murder cases wherein the
plea of self-defense is interposed, is almost decisive of the innocence, or, if guilty, the degree
of guilt of the defendant, and, in the determination of this important fact, all threats against
the life of the defendant by the deceased, even though uncommunicated, are admissible, and
the exclusion of this evidence, so vitally important to the defendant, is reversible error. (State
v. Hennessy, 29 Nev. 320; People v. Arnold, 15 Cal. 481; People v. Scoggins, 37 Cal. 676;
People v. Alivtre, 55 Cal. 263; 1 Wigmore on Evidence, 110; Stokes v. People, 53 N, Y. 174,
13 Am. Rep. 492; Wilson v. State, 30 Fla. 242, 11 South 556, 17 L. R. A. 654.)
The threat, as testified to, was: I am going to kill the son of a bitch the first time I see
him. The shooting, according to the testimony, took place about 3 o'clock a.m., and this
threat is testified to as having been made within an hour previous to the shooting. In arriving
at their verdict, the fact of who was the aggressor became of vital importance to the jury in
determining the innocence or degree of guilt of the defendant, and one which they must
necessarily have passed upon in arriving at their verdict. The jury in the present case were
instructed, in effect, not to consider the testimony of Myrtle Smith because the threat, being
uncommunicated, was inadmissible, and the jurors, whose duty it is to be governed by the
instructions given by the court as to the law, we must presume acted in accordance with
their obligation, and did not consider this testimony.
is to be governed by the instructions given by the court as to the law, we must presume acted
in accordance with their obligation, and did not consider this testimony. It will not do to say
that the jury did not believe Myrtle Smith because the threat testified to in her testimony was
expressly ruled out by the court. Her testimony, no matter what her character, was admissible
for such weight as the jury might give to it, and, no matter from what source the testimony
came, the defendant was entitled to have this testimony passed upon by the jury.
In the case of State v. Hennessy (very recently determined), 29 Nev. 320, 90 Pac. 225, this
court, in passing upon testimony of uncommunicated threats assigned as error, said: Such
threats, even if uncommunicated, would be competent for the purpose of aiding the jury in
determining who was the aggressor in the encounter which subsequently occurred between
Ganahl and Cole, on the one hand, and Elftman, on the other.
The rule as to the admissibility of uncommunicated threats made by the deceased against
the life of the defendant, where the plea of self-defense is interposed, is succinctly stated in
the late work of Wigmore on Evidence, vol. I, sec. 110, as follows: Where, on a charge of
homicide, the excuse is self-defense, and the controversy is whether the deceased was the
aggressor, the deceased's threats against the accused are relevant. The deceased's design to do
violence upon the defendant is of some value to show that on the occasion in question he did
carry out, or attempt to carry out, his design. Moreover, it is the fact of his design, irrespective
of its communication to the defendant, that is evidential.
The judgment and order of the trial court are reversed, and cause remanded for a new trial.
____________
29 Nev. 411, 411 (1907) Smith v. Wells Estate Co.
[No. 1714.]
G. M. SMITH, Appellant, v. THE WELLS ESTATE
COMPANY, a Corporation, Respondent.
1. AppealRecordSufficiency. In the absence of a waiver of objection, appellant's
affidavit setting out the proceedings of the trial court would be an insufficient transcript, since the
methods of taking appeals are matters of purely statutory regulation, and only bills of exception properly
settled and signed by the judge and records complying with the statute will be considered.
2. SameWaiver of ObjectionBrief. Under Supreme Court Rule 11, requiring respondent
to file and serve his brief within fifteen days after the service of appellant's brief, and making a failure by
either party to file his brief within the time provided a waiver of the right to orally argue the case, or to
recover certain costs, and under rule 8, providing that exceptions or objections to the statement or
transcript must be taken at the first term after the transcript is filed, and must be noted in the written or
printed points of respondent and filed at least one day before the argument, or they will not be regarded,
where appellant filed his brief February 26th, and on April 1st, without making any reservation respondent
obtained an order allowing it ten days to file its brief, and it failed to file a brief, or to make any motion to
dismiss the appeal within fifteen days after the filing of appellant's brief, it waived its rights to object to an
irregularity in the manner or form of certification of the order appealed from.
3. SameStatutes Construed. Section 332 of the practice act (Comp. Laws, 3427) provides
that when a party, who has a right of appeal, desires a statement of the case to be annexed to the record
of the judgment or order, he should prepare and file such statement and serve a copy thereof on the adverse
party who may file proposed amendments thereto, which may be settled and certified by the judge. Section
337 (Comp. Laws, 3432) provides that the five preceding sections shall not apply to appeals taken from an
order made upon affidavit filed, but such affidavit shall be annexed to the order in the place of the
statement mentioned in those sections. Held, that the language quoted was not intended to authorize the
filing of records on appeal set out and supported by an affidavit made after the order of the lower court and
filed in the supreme court for the purpose of showing its proceedings, but rather to allow a simple method
for taking to the supreme court for review orders of the district court made on affidavits filed therein
previous to the making of such orders, by filing as the record on appeal copies of such orders attached to
the affidavit on which they were based, supported by the proper certificate of the clerk.
4. PleadingDemurrers Sustained for MisjoinderRight to Amend. Under section 68 of the
practice act (Comp. Laws, 3163), providing that the court may in furtherance of justice amend any pleading
or proceeding by adding or striking out the name of any party, and section 71, providing that the court shall
in every stage of an action disregard any error in the pleadings or proceedings not affecting substantial
rights, where plaintiff and others, several owners of different lots, sued for the
diversion of waters therefrom and a demurrer for misjoinder of parties and causes of
action was sustained, it was improper to strike out plaintiff's amended complaint in
which he sued alone; the allegations of the amended complaint relating alone to
property, acts, and matters set out in the original complaint, and both demanding
damages and general relief.
rights, where plaintiff and others, several owners of different lots, sued for the diversion of waters
therefrom and a demurrer for misjoinder of parties and causes of action was sustained, it was improper to
strike out plaintiff's amended complaint in which he sued alone; the allegations of the amended complaint
relating alone to property, acts, and matters set out in the original complaint, and both demanding damages
and general relief.
Norcross, J., dissenting.
Washoe County; John S. Orr, Judge.
Action by G. M. Smith against The Wells Estate Company. From an order dismissing his
amended complaint, plaintiff appeals, and defendant moves to dismiss the appeal. Motion
denied. Order reversed.
O. H. Mack, for Appellant:
I. The court erred in entering the order to sustain defendant's motion to strike plaintiff's
amended complaint from the files of the court, for the reason that said amended complaint
has one and the same parties plaintiff, and it states identically two of the same causes of
action as stated in the original complaint.
S. Summerfield, for Respondent:
I. This appeal should be dismissed and respondent moves its dismissal upon the ground
that the record on appeal is not in the form required by law. It is not an appeal from the
judgment roll alone, nor is it brought before this court upon a properly executed or
authenticated statement on appeal, or upon a properly prepared and served bill of exceptions.
II. A radical change of the parties in an action in an amended complaint where leave to
amend was granted only to the original party or parties will not be tolerated in law, (Little v.
V. & G. H. W. Co., 9 Nev. 317; Hallmark v. Hopper, 72 Am. St. Rep. 901; Emerson v.
Wilson, 34 Am. Dec. 695.)
III. The property necessarily affected by an amended complaint must be the same property
mentioned in the original complaint. A material variance in this respect cannot be allowed in
an amended complaint, as otherwise the original complaint would only have the effect of
a bill of discovery.
cannot be allowed in an amended complaint, as otherwise the original complaint would only
have the effect of a bill of discovery. It will be observed that the property mentioned in the
amended complaint is but a moiety of that mentioned in the original complaint. The
subject-matter of the controversy must be the same in an amended complaint as that
mentioned in the original complaint. (Emerson v. Wilson, 34 Am. Dec. 695.) The original
complaint was one at law and in equity in which damages were sought to be obtained, and
also a mandatory injunction, being a purely equitable remedy. Under the alleged amended
complaint, the action is purely statutory in its entirety, being one to recover damages and to
quiet title. (Emerson v. Wilson, 34 Am. Dec. 695; Davis v. Mayor, 67 Am. Dec. 186, and
notes.)
The motion to dismiss the appeal and the merits in this case may be more conveniently
understood and considered together.
The appellant, G. M. Smith, with P. W. Nicholson, T. J. Pickett, and his wife, Mary M.
Pickett, filed a complaint against The Wells Estate Company, a corporation, in the court
below, alleging Smith to be the owner in fee of ten lots, together with one and one-half
miners' inches of water in the S. O. Wells ditch, in McCormick's Addition to the City of
Reno, and that he is in possession of these lots and entitled to the possession of this water;
that Pickett and his wife were the owners in fee of three lots, and one miner's inch of water, in
the S. O. Wells ditch, in said McCormick's Addition, and were in the possession of these lots
and entitled to the possession of this water; that Nicholson had purchased of the plaintiffs
Pickett and wife the three lots and one miner's inch of water so owned by them, and had made
partial payments therefor. There was an allegation that the water flowed, and that plaintiff
Smith was entitled to an easement and right of way to have it flow, through the S. O. Wells
ditch to his lands, and that he had long and continuously used it therein; that the defendant,
through its agents and employees, disregarding the plaintiffs' rights, had filled up large
portions of the ditch above the plaintiffs' lands and diverted all the water from their
premises, to the damage of the plaintiff Smith in the sum of $S00.
large portions of the ditch above the plaintiffs' lands and diverted all the water from their
premises, to the damage of the plaintiff Smith in the sum of $800. There were special
allegations that, by reason of such diversion, the grass, verdure, garden, trees, and shrubbery
growing on Smith's lands had dried up and died, to his damage in the sum of $260, and that
he had been compelled to pump and carry all the water for his live stock and poultry and for
domestic purposes in his residence, to his damage in the sum of $240. There were separate
allegations of diversion of the water from and damage to the lands of the other plaintiffs.
The prayer in the complaint asked for an order of the court compelling the defendant to
open, repair, and clean out the S. O. Wells ditch and to let the waters of the plaintiffs flow
through it undisturbed to their lands, for damages to them in separate amounts, and for
general relief. A demurrer to this complaint on the grounds, among others, that there was a
misjoinder of parties plaintiff, and that they had no joint or common interest in the
subject-matter or in the damages or relief sought to be recovered, that several causes of action
had been improperly joined, and that the alleged causes of action of the several plaintiffs were
independent, was sustained by the court. An amended complaint was filed, naming Smith
alone as plaintiff, alleging that he was the owner of the same lots and water as claimed by him
in the first complaint, and that he was entitled to have it flow through the S. O. Wells ditch to
his premises, and alleging, as before, that it had been filled up and the water diverted by the
defendant, and special damages to him for the same cause and in the same amount as in the
original complaint and general damages for the same diversion in a different amount. He
demanded to have the title quieted to the water and water rights, ditch and ditch rights, and
privileges belonging and appurtenant to his lands and premises, and for damages, costs, and
general relief.
The defendant filed a demurrer to the amended complaint, which was sustained, and
moved to have it stricken from the files, on the ground that it was an attempt to change the
parties mentioned in the original complaint and the nature of the original complaint of which
it purported to be an amendment.
of the original complaint of which it purported to be an amendment. This motion was granted
by the court. The transcript on appeal, in two volumes, one designated Plaintiff's and
Appellant's Affidavit on Appeal, and the other without designation, were filed in this court
on the 26th day of February, 1907, and the appellant's brief was filed on the same day. On
April 10th respondent's brief was filed in this court, and therein it was asked that the appeal
herein be dismissed upon the ground that the record is not in the form required by law. On
April 11th appellant filed notice of a motion to have respondent's brief stricken from the files
because it was not filed within the time required by rule 11 of this court. Accordingly two
questions are suggestedwhether the record is properly certified, and whether the respondent
has waived its right to have the appeal dismissed if the certification is defective, at least one
of which it is essential to determine.
In the volume of the transcript marked Plaintiff's and Appellant's Affidavit on Appeal
copies of papers and proceedings of the court are set out and stated in the form of an affidavit
by the plaintiff, followed by a certificate of the district judge that the foregoing is the
plaintiff's original affidavit on appeal and identified as such, and by the certificate of the
county clerk of similar effect. The other and undesignated volume of the transcript seems to
contain original papers which are followed by the certificate of the clerk certifying that it
contained all of the original files and papers, excepting the affidavit on appeal, including the
original judgment roll, original complaint, amended complaint, demurrers, and other papers.
There was no certificate by the judge that the statement had been allowed and was correct,
such as is usually attached to statements on appeal. In the absence of any waiver of
objections, the affidavit made by the appellant setting out the proceedings of the court would
be insufficient, as stated in Hart v. Spencer, 29 Nev. 286, 89 Pac. 289.
As has been held by this court, the methods of taking appeals are matters of purely
statutory regulation. (Burbank v. Rivers, 20 Nev. 81, 16 Pac. 430.) By analogy only bills of
exception properly settled and signed by the judge and records complying with the
statute will be considered.
exception properly settled and signed by the judge and records complying with the statute will
be considered. (State v. Mills, 12 Nev. 403; State v. Rover, 13 Nev. 17; State v. Wilson, 5
Nev. 43; State v. Ah Mook, 12 Nev. 369.) Following this rule, the court has refused to receive
affidavits to show irregularities or proceedings not regularly certified. (State v. Baker, 8 Nev.
141; State v. McMahon, 17 Nev. 365, 30 Pac. 1000; State v. Larkin, 11 Nev. 314; State v.
Roderigas, 7 Nev. 328; State v. McLane, 15 Nev. 345.) Under rule 11, respondent is required
to file and serve his points and authorities or brief within fifteen days after the service of
appellant's brief, and a failure by either party to file his brief within the time provided is
deemed a waiver of the right to orally argue the case or to recover certain costs, and under
rule 8 exceptions or objections to the statement or transcript must be taken at the first term
after the transcript is filed, and must be noted in the written or printed points of respondent
and filed at least one day before the argument, or they will not be regarded. On April 1st,
without making any reservation, respondent obtained an order allowing it ten days within
which to file its brief, and this and the fact that it failed to file its brief or make any motion to
dismiss the appeal within fifteen days after the filing of appellant's brief we deem to be a
waiver of its right to make the objections offered to the transcript. (Johnson v. Wells, 6 Nev.
224, 3 Am. Rep. 245; Truckee Lodge v. Wood, 14 Nev. 293.) The notice and undertaking on
appeal are in proper form, duly certified by the clerk. If the order from which the appeal is
taken were not included in the record, its omission would be fatal and could not be waived;
but the same conclusion and result does not follow because there is an irregularity in the
manner or form of certification of the order by reason of its presence here attached to the
specification of error under an affidavit, a well-recognized method of proof in general
practice, to which is attached the certificate of the clerk and district judge that it is appellant's
Affidavit on Appeal, instead of under a certificate following the language of the statute.
This case may be distinguished from Marx v. Lewis, 24 Nev. 306, 53 Pac. 600, in that the
defect in the certification here is not as vital as the question involved there relating to the
absence of any notice or bond on appeal. If an inference may be drawn from the dicta in
that case that no defects in the record can be waived, it would be opposed to these
decisions of this court in 6 and 14 Nev., but more directly is it in conflict with the opinions
of the Supreme Court of the United States and other courts holding that the lack of an
undertaking on appeal and other omissions and irregularities may be waived.
here is not as vital as the question involved there relating to the absence of any notice or bond
on appeal. If an inference may be drawn from the dicta in that case that no defects in the
record can be waived, it would be opposed to these decisions of this court in 6 and 14 Nev.,
but more directly is it in conflict with the opinions of the Supreme Court of the United States
and other courts holding that the lack of an undertaking on appeal and other omissions and
irregularities may be waived. (Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. 638, 33 L.
Ed. 1047; Michel v. Meyer, 26 La. Ann. 173; Weidner v. Matthews, 11 Pa. St. 336; Gardner
v. Investment Co., 129 Cal. 528, 62 Pac. 110; Thompson v. Lea, 28 Ala. 453; Wheeler v.
Burlingham, 137 Mass. 581; Ross v. Tedder, 10 Ga. 426; Howth v. Shumard, 40 S. W. 1079;
Hoagland v. Hoagland, 18 Utah, 304, 54 Pac. 978; Kirkpatrick v. Cooper, 89 Ill. 210; Pace
v. Lanier, 25 Fla. 558, 6 South. 262; Engle v. Rowan, 48 S. W. 757; Norris v. Monroe, 128
Mass. 386; Bolton v. McKinley, 19 Ill. 404; Wilson v. Kelly, 81 Pa. St. 411; 2 Ency. Pl. & Pr.
348; 2 Cyc. 882, and cases there cited.)
Apparently there was no attempt to serve or file the record as a statement on appeal under
section 332 of the practice act (Comp. Laws, 3427), which provides that, when the party who
has a right of appeal wishes a statement of the case to be annexed to the record of the
judgment or order, he should prepare and file such statement and serve a copy thereof on the
adverse party, who may file proposed amendments thereto, which may be settled and certified
by the judge. It would seem that, instead of following these provisions, plaintiff intended to
proceed under section 337, which provides that the sections to which we have referred shall
not apply to appeals taken from an order made upon affidavit filed, but such affidavit shall be
annexed to the order in the place of the statement mentioned in those sections. The language
quoted was not intended to authorize the filing of records on appeal set out and supported by
an affidavit made after the order of the lower court and filed here for the purpose of showing
its proceedings, but rather to allow a simple method for bringing into this court for review
orders of the district court made upon affidavits filed therein previous to the making of
such orders by filing as the record on appeal copies of such orders attached to the
affidavits on which they were based, supported by the proper certificate of the clerk.
court made upon affidavits filed therein previous to the making of such orders by filing as the
record on appeal copies of such orders attached to the affidavits on which they were based,
supported by the proper certificate of the clerk. However, it being conceded that the record is
not sufficient as a statement on appeal as distinguished from a transcript, if there were doubt
as to objections to the record being waived because they were not presented in time, it might
be claimed that the order in the lower court by analogy was made upon affidavit because it
was based upon the complaint and amended complaint, both of which were verified, but more
properly be said that the order dismissing the complaint was in the nature of a final judgment
which might be reviewed on the judgment roll and papers certified here by the clerk. The
practice act distinguishes between the methods of certification of statements and of
transcripts on appeal. (Irwin v. Samson, 10 Nev. 282; Railway Co. v. Johnson, 7 Wash. 97, 34
Pac. 567.) Section 335 provides: The statement, when settled by the judge or referee, shall
be signed by him, with his certificate that the same has been allowed and is correct. When the
statement is agreed upon by the parties, they or their attorneys shall sign the same, with their
certificate that it has been agreed upon by them and is correct. Section 340 provides: On an
appeal from a final judgment, the appellant shall furnish the court with a transcript of the
notice of appeal, and the statement, if there be one, certified by the respective attorneys of the
parties to the appeal, or by the clerk of the court. On an appeal from a judgment rendered on
an appeal or from an order, the appellant shall furnish the court with a copy of the notice of
appeal, the judgment or order appealed from, and a copy of the papers used on the hearing in
the court below, such copies to be certified in like manner to be correct. The amended
complaint did not add any new cause of action or a new party, as was attempted to be done in
the cases cited by the respondent. The allegations of the amended complaint relate only to
property, acts, and matters set out in the original complaint. Both demanded damages and
general relief.
The fact that the damages are not asked in the same amount in the different paragraphs is
nothing unusual in amended complaints. The prayer in the amended complaint that the title be
quieted is controlled by the allegations which were similar in both so far as the plaintiff Smith
is concerned. The court could grant any relief consistent with these allegations or with those
in an answer. A part of the plaintiffs and the allegations on their behalf relating to damages,
which it had been held by the court on demurrer could not be joined, were omitted in the
amended complaint apparently for the purpose of bringing it within the order of the court
sustaining the demurrer. Section 68 of the practice act provides that the court may, in
furtherance of justice, and on such terms as may be proper, amend any pleadings or
proceedings by adding or striking out the name of any party, and section 71 that the court
shall in every stage of an action disregard any error or defect in the pleadings or proceedings
which shall not affect the substantial rights of the parties.
As all the papers on which the court acted are before us under proper certification, and its
order with them under affidavit and certification of the clerk and district judge, which do not
comply with the statute, we think the latter defects should be deemed waived because no
objection to them, or motion to dismiss the appeal, was made within fifteen days as required
by the rule, nor for more than forty days after the filing of the transcript and appellant's brief,
nor until after respondent had without reservation applied for additional time in which to file
its brief, and, as the complaint states a good cause of action, we believe it is better that this
technicality be so considered and disregarded, to the end that a trial may be had and the rights
of the parties more speedily determined.
The order dismissing the amended complaint is reversed, and the district court will allow
the defendant a reasonable time in which to answer.
Sweeney, J: I concur.
Norcross, J., dissenting:
Conceding, for the purposes of this case, that respondent's motion to dismiss the appeal
was not filed in time, and, for that reason, such motion cannot be considered, nevertheless I
think the record in this case requires a dismissal of the appeal upon the court's own motion.
What the appellant designates as his Affidavit on Appeal is something unknown to our
practice, and is not authorized by any possible construction of our civil practice act. (Hart v.
Spencer, 29 Nev. 286, 89 Pac. 289.) That counsel filed his so-called Affidavit on Appeal
under a misconception of our statute is clear. While I concede that defects and irregularities in
the matter of an appeal, otherwise regular, may be waived, I do not regard the present appeal
in such a condition. The so-called Affidavit on Appeal, Having no authorization in law, is,
in my opinion, a nullity and cannot be considered for any purpose. As the other volume of the
record, taken alone, does not present anything for the court's consideration, I think the appeal
should be dismissed.
____________
29 Nev. 421, 421 (1907) State v. Dwyer
[No. 1712.]
THE STATE OF NEVADA, Respondent, v. PATRICK
DWYER, Appellant.
1. Criminal LawVenueRefusal of ChangeAbuse of Discretion. Evidence in a homicide
case showing deceased to be a man favorably and widely known in the county and defendant a stranger,
the very general and unqualified belief in the county in defendant's guilt and a bitter feeling against him,
and the knowledge of the jurors of such feeling and the possession by many of them of qualified opinions
as to his guilt which would require evidence to remove, held to show an abuse of discretion in refusing a
change of venue, under section 306 of the criminal practice act (Comp. Laws, 4271), authorizing removal
on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending.
Appeal from the District Court of the Third Judicial District of the State of Nevada,
Lander County; Peter Breen, Judge.
Patrick Dwyer was convicted of murder, and appeals. Reversed, and change of venue and
new trial ordered.
James F. Dennis, P. A. McCarran, and William Woodburn, for Appellant:
I. The court erred in denying appellant's motion for a change of venue. It appears from the
record that on the 31st day of July, 1907, about 8 o'clock p.m., Patrick Dwyer shot and killed
A. C. Williams and wounded his companion, Henry Dyer, on the main street of the Town of
Austin. Patrick Dwyer was a stranger in Austin, and was not acquainted with A. C. Williams
or Henry Dyer when he fired the fatal shot; he never spoke to either of them and never had
any quarrel, altercation, or any trouble of any kind with either Williams or his companion.
The shooting was done without any apparent or conceivable motive. It further appears that the
deceased, A. C. Williams, was a young man reared in Austin, and at the time of his death was
employed as conductor on the railroad connecting Austin and Battle Mountain. Henry Dyer
lived twenty-six years in Austin, and is and was the county recorder of Lander County. Both
of them were well known throughout Lander County. The killing of A. C. Williams and the
wounding of his companion naturally aroused a feeling of indignation against his slayer
throughout Lander County and engendered a bias and prejudice against him, so that it
was impossible to procure a fair and impartial jury to determine his guilt or innocence of
the crime charged against him.
29 Nev. 421, 422 (1907) State v. Dwyer
ing of A. C. Williams and the wounding of his companion naturally aroused a feeling of
indignation against his slayer throughout Lander County and engendered a bias and prejudice
against him, so that it was impossible to procure a fair and impartial jury to determine his
guilt or innocence of the crime charged against him.
II. The action of the lower court in granting or refusing a change of venue is a matter of
judicial discretion. If that discretion is abused it becomes the duty of an appellate court to
afford relief. (State v. Williams, 3 Nev. 409; State v. McLane, 15 Nev. 345.) The evidence
hereinbefore set forth clearly shows that it was impossible to obtain an impartial jury, as there
existed such a state of public excitement that even an impartial jury would likely be
intimidated and overawed.
III. The record shows that the peremptory challenges of defendant were exhausted before
the completion of the jury. We respectfully submit that the court erred in disallowing the
defendant's challenges to four jurors. Considering that but one opinion existed throughout the
county in regard to the guilt of the defendant, the number of jurors in that sparsely populated
county who were examined and had formed a fixed opinion as to his guilt, the prominence of
the deceased, A. C. Williams, and Henry Dyer, and the undisputed facts of the shooting, it is
more than difficult to believe that these four jurors were fair and impartial. Upon the question
of their disqualifications as jurors, see State v. Roberts, 27 Nev. 467; People v. Suesser, 132
Cal. 632; State v. McClear, 11 Nev. 61.
IV. We contend that it is not relevant or proper to show that the defendant has committed
other similar acts or crimes which are not connected in any way with the one in question. The
general rule is that evidence of other and distinct offenses than that alleged in the indictment
is reversible error, even in a clear case of guilt. There must be a logical connection between
the two so that the one tends to establish the other, or when the two acts form but one
transaction. (Boyd v. U. S., 450; Com. v. Jackson, 132 Mass. 16; Hughes, Cr. Law & Proc.
3137-3139.) The testimony must be confined to the issue. This rule excludes evidence of all
collateral facts, or those which are incapable of affording any reasonable presumption or
inference as to the principal fact or matter in dispute."
29 Nev. 421, 423 (1907) State v. Dwyer
those which are incapable of affording any reasonable presumption or inference as to the
principal fact or matter in dispute. (1 Greenl. Ev. 51, 52.) Upon the same ground it is not
competent for the prosecutor to give evidence of the prisoner's tendency to commit the crime
with which he is charged. (Roscoe, Cr. Ev. 81, and cases cited; People v. Jones, 31 Cal. 570,
571.)
R. C. Stoddard, Attorney-General, and A. J. Maestretti, District Attorney of Lander
County, for Respondent:
I. Appellant cites State v. Roberts, 27 Nev. 467. The case is not in point, as the record in
that case indicated that, after talking with witnesses and persons who purported to know the
facts, the juror had formed and expressed an opinion which, under the statute, rendered him
incompetent; in this case it merely appears that the jurors had formed qualified opinions
based on newspaper reports and general rumor, and that, regardless of the source of
information, their minds were in a condition that rendered them competent to serve. (State v.
Williams, 28 Nev. 409; People v. Owens, 123 Cal. 482; State v. Cunningham, 100 Mo. 382;
State v. Simas, 25 Nev. 432; State v. Raymond, 11 Nev. 98; 17 Am. & Eng. Ency. Law, 2d ed.
1150.)
II. The motion for a change of venue was addressed to the sound discretion of the trial
court and on the showing made by defendant and the counter showing made by the state, the
denial of motion was not an abuse of discretion. (State v. Gray, 19 Nev. 212; State v. Millain,
3 Nev. 409; State v. McLane, 15 Nev. 371; People v. McCawley, 1 Cal. 383; People v.
Goldenson, 76 Cal. 328; 4 Am. & Eng. Ency. Pl. & Pr. 398; Thompson v. State, 123 Ala. 12;
Haws v. State, 88 Ala. 37; Raines v. State, 88 Ala. 91; Territory v. Barth, 15 Pac. 673;
People v. Mahoney, 18 Cal. 180; People v. Congleton, 44 Cal. 92; Gitchell v. People, 37 Am.
St. Rep. 147; Hickman v. People, 137 Ill. 75; State v. Williams, 115 Iowa, 97; State v.
Egerton, 100 Iowa, 63; State v. Weems, 96 Iowa, 426; State v. Daugherty, 63 Kan. 476;
Dilger v. Commonwealth, 88 Ky. 550; People v. Sammis, 3 Hun, 560; State v. Russell, 32
Pac. 854; Goldsberry v. State, 92 N. W. 906.)
29 Nev. 421, 424 (1907) State v. Dwyer
James F. Dennis, for Appellant, in reply:
I. The court erred in denying defendant's challenge to juror L. A. Lemaire. The juror, on
his voir dire, expressly states that he expressed an unqualified opinion as to the guilt or
innocence of the defendant, and it can make no difference under the law of this state what
qualifications he had in his mind; the fact remains that he expressed an unqualified opinion
and was the subject for challenge for implied bias under section 340 of our criminal practice
act. (State v. Roberts, 27 Nev. 467.)
II. The court erred in denying defendant's challenge to juror Hunt, for the reason that the
juror had expressed an opinion that the defendant was guilty, and was at the time of his
examination of the opinion that the defendant was guilty of the homicide. (State v. Roberts,
27 Nev. 467.)
III. We now come to the denial or overruling of defendant's motion for change of venue, and
upon this question the entire examinations of all the jurors are involved as well as the conduct
of the court just referred to in our specifications of error. We call the court's attention to the
bill of exceptions, together with the general affidavits and motions made by defendant for
change of venue and submitted; that from an examination of this record it shows conclusively
that the defendant could not and did not have a fair and impartial trial as guaranteed to him by
the constitution of this state, which means an impartial trial. (Cooley, Const. Lim. 390;
People v. Powell, 37 Cal. 348.) The fact that the jury was obtained was not conclusive that it
was a fair jury, or that the verdict of that jury was uninfluenced by the bias and prejudice that
existed against the defendant at the time of the trial. In fact, the entire record and examination
of 179 talesmen to procure 12 would mean that 167 persons were disqualified, which shows
conclusively that over 90 per cent of the qualified jurors in the county, had formed and
expressed an unqualified opinion as to the guilt of the defendant, as most of them expressed
it.
IV. The denial of the several motions for change of venue in this action simply amounts to
a denial of justice, and the record shows that even the court became imbued with the feeling
of prejudice and bias which existed against the defendant.
29 Nev. 421, 425 (1907) State v. Dwyer
feeling of prejudice and bias which existed against the defendant. The statute of our state
provides: A criminal action, prosecuted by indictment, may be removed from the court in
which it is pending, on the application of the defendant or state, on the ground that a fair and
impartial trial cannot be had where the indictment is pending, which means the same thing.
(Comp. Laws, 4271; State v. Millain, 3 Nev. 409; State v. McLane, 15 Nev. 345; People v.
Suesser, 132 Cal. 632.)
V. The court's comments and remarks concerning the qualifications of jurors, and their
failure to qualify, and his comments upon the severity of the case, were expressions of
opinion upon a question of fact, which entitles defendant to a reversal of the case upon that
ground alone.
By the Court, Norcross,J.:
Appellant was convicted in the Third Judicial District Court in and for Lander County of
the crime of murder in the first degree and sentenced to be hanged. From such judgment he
appeals.
The principal question presented upon this appeal is whether or not the court erred in
denying the defendant's various motions for a change of venue. Section 306 of the criminal
practice act (Comp. Laws, 4271) provides: A criminal action, prosecuted by indictment, may
be removed from the court in which it is pending, on the application of the defendant or state,
on the ground that a fair and impartial trial cannot be had in the county where the indictment
is pending.
In the case of State v. Millain, 3 Nev. 432, this court said: There are few cases that
present themselves to appellate courts where it is more difficult to determine upon any settled
principles or rule of action than in these cases relating to a change of venue. By all it is
admitted that there is a broad discretionary power allowed the court of original jurisdiction.
But, whilst that court has such discretion, it is still a judicial and not an arbitrary discretion. If
that discretion is used in an arbitrary and oppressive manner, an appellate court is bound to
correct the error. But to distinguish between what is and what is not an abuse of that
discretion is often a very nice and difficult question.
29 Nev. 421, 426 (1907) State v. Dwyer
is and what is not an abuse of that discretion is often a very nice and difficult question. There
are two circumstances, the existence of either of which should entitle the defendant to a
change of venue. The one is the impossibility of obtaining an impartial jury. The other is such
a state of public excitement against the defendant that even an impartial jury would be likely
to be intimidated and overawed by public demonstrations against the accused.
Commenting upon a similar motion in the case of State v. McLane, 15 Nev. 372, this court
said: On the whole, we think the application in this case for a change of venue was not
materially stronger than that in the case of Millain (3 Nev. 433), where the order overruling
the motion was affirmed by this court. It is not shown in this case, any more than in that, that
the parties threatening violence to the defendant were either numerous or influential; and we
do not understand that the mere prevalence of a belief in the guilt of a prisoner, however
widely diffused, is a circumstance from which it must be inferred that a jury would be
intimidated or overawed.
Again, in the case of State v. Gray, 19 Nev. 215, 8 Pac. 457, this court had the following
to say in reference to a motion for change of venue: Defendant applied for a change of venue
on the ground of prejudice existing against him in the county where the indictment was
pending which would prevent him from having a fair and impartial trial. The application was
based upon affidavits tending to establish the fact alleged, and resisted by counter affidavits.
It is unnecessary to consider the contents of the affidavits. The district court overruled the
motion for the time being, until it could be shown by an examination of a sufficient number
of jurors that a fair and impartial jury could not be obtained. After examining eighty-one
persons a jury was impaneled. The statute authorizing a change of venue in criminal cases
provides that, before granting the order, the court shall be satisfied that the representations of
the moving party are true. The question whether a fair and impartial jury could be obtained
depended largely upon the opinions of witnesses. Opinions differed widely, and the court
adopted a very satisfactory test to ascertain that fact.
29 Nev. 421, 427 (1907) State v. Dwyer
factory test to ascertain that fact. The practice pursued was approved in State v. Millain, 3
Nev. 433, and by the Supreme Court of California in People v. Plummer, 9 Cal. 299, and in
People v. Mahoney, 18 Cal. 181.
The foregoing furnishes about all the light we may gather from the decisions of this court
upon a question like that here presented. Outside of the fact that every case where a change of
venue is sought must come within certain broad principles, each case must be determined
upon its own particular facts.
The defendant's motion for a change of venue under the provisions of the statute was first
made on September 26, 1907, after two days had been spent in examining jurymen, and after
eighty-one jurymen had been examined upon their voir dire, with the result that only eleven
had been passed, three of whom were passed over defendant's challenge for cause. At this
time none of the eight peremptory challenges allowed to each side had been exercised. The
motion was based upon a lengthy affidavit of the defendant, affidavits of defendant's three
attorneys, and the testimony of witnesses taken before the court. Affidavits and the testimony
of witnesses in opposition to the motion were also offered by the state. After considering the
evidence in support of the motion at length the court said: I think I shall overrule the motion,
with permission to the defense to renew it at the close of the examination of the jurors in
attendance to-morrow. Pursuant to the ruling of the court, on September 29th, and after one
hundred and three jurymen had been examined and the jury list exhausted without securing a
jury, the motion for a change of venue was renewed, and based upon the additional showing
of the jurymen examined since the motion was first made. The court examined the sheriff as
to the number of electors who in his opinion were left in the county who would be subject to
jury duty, and the sheriff gave it as his opinion that there were one hundred and fifty,
approximately. The court denied the motion, and a recess was taken until 10 o'clock a.m. on
October 1st, at which time the court notified counsel that he had submitted to the county
commissioners the selection of one hundred and fifty more names for jurymen.
29 Nev. 421, 428 (1907) State v. Dwyer
for jurymen. At the session of court held on the 1st day of October the motion for change of
venue was again renewed, and denied by the court. The court announced that he would issue
a venire for one hundred names, stating at the same time: I do not know whether you [the
sheriff] can find one hundred and fifty in the county or not. A recess was then taken until
October 10th. On the day last mentioned court convened, and all the new veniremen
responded to their names excepting twenty-six who were returned as sick, out of the county,
or not served. Immediately after the convening of court counsel for defendant presented a
motion, supported by the affidavit of the defendant, for leave to examine the eight jurors who
had been passed and who were in the box at the time the recess was taken on the 1st of
October, because of a certain alleged threatened assault upon the jail to secure the person of
the defendant by violent means, which alleged threatened assault it was alleged might have
come to the knowledge of the jurymen in the box, and, further, because of certain remarks of
the county clerk made in the hearing of certain of the talesmen. The hearing upon this motion
was in the absence of the jury. T. A. Oliver, the deputy sheriff and jailer, testified that during
the recess of the court he had been informed by George Watt, an ex-sheriff of the county,
that there was going to be an effort made, or very likely to be an effort made, to take the man
from the jail and lynch him, and I had better be very cautious and get help if I could. He
(Watt) said he could not find out the parties, but he was told that the man would not be
allowed to leave town; that it was either lynch him or break the county. I asked him if he
could do nothing in the matter, and he said he did not know whether he could or not. If it was
possible he would do so. He came to me the next evening and told me there would be nothing
done at present. The witness further testified to the effect that Watt informed him that he
did not know where the parties were coming from, but that he was satisfied that they were
from out of town; that he (Watt) had been asked to take part. Mr. Watt was out of town at
the time the motion was presented, and, although a subpena had been issued for him, the
sheriff had been unable to serve it, and consequently the testimony of Mr.
29 Nev. 421, 429 (1907) State v. Dwyer
unable to serve it, and consequently the testimony of Mr. Watt was not at the time obtainable.
With reference to the matter of the statements of Mr. Dron, the county clerk, it had
previously been shown by affidavit and the testimony of witnesses that Dron had remarked to
one of defendant's counsel, within the hearing of the talesman: I'll tell you one thing, if I had
been in Austin when this occurred, you would not have been put to the trouble of trying the
case. Because of this remark by the clerk, the court ordered him to provide a deputy and
refrain from attendance upon the court. With regard to the remark in question the court, in
considering the motion now under discussion, said: You have already made a showing that
the eight jurors in all probability heard the statement made by Mr. Dron, and, as it was not
contradicted, it must be accepted as a fact. Upon the showing thus made the motion for leave
to reexamine the jurors then in the box was denied, and the examination of the talesmen on
the new venire was proceeded with, and a jury finally obtained; the defendant in the
meantime having exhausted all his peremptory challenges. Upon finally securing the jury
counsel for defendant asked for and were granted until the following day to prepare affidavits
in support of a renewal of the motion for a change of venue.
The final motion for change of venue was as follows: The plaintiff will please take notice
that on the opening of said court on the 12th day of October, 1907, the defendant will move
said court to change the place of trial of said action to some other county within said state.
Said motion will be made and based upon the ground that a fair and impartial trial cannot be
had within the County of Lander, which is the county where said defendant was indicted and
where said action was set for trial, for the reason that ninety-eight per cent of the people of
said county are incensed and angry at the defendant, and are clamoring for his life, and have
threatened him with violence prior to the date of his said trial and since said trial has been in
progress. At the hearing of said motion said defendant will use his affidavit, a copy of which
is hereby attached, a copy of the testimony of the witnesses heretofore testifying on a
similar motion, and the affidavit used on said last-named motion, together with the
stenographic copy of the voir dire of the jurymen E. W. Hunt, J. A. Hoskins, and Geo.
29 Nev. 421, 430 (1907) State v. Dwyer
the witnesses heretofore testifying on a similar motion, and the affidavit used on said
last-named motion, together with the stenographic copy of the voir dire of the jurymen E. W.
Hunt, J. A. Hoskins, and Geo. Litster; also the stenographic report of the examination of all
the jurors examined in said case since the 24th day of September, 1907, and all of the records
and files of said case, together with the testimony of Scott Hickey and the testimony of one
Plummer.
Without setting forth the contents of the numerous affidavits filed in support of the various
motions for a change of venue, we will review the testimony of various witnesses in support
of and in opposition to the motion, and state certain facts which are either admitted or clearly
established by proof. The defendant, Dwyer, shot and killed one A. C. Williams on one of the
principal streets in the Town of Austin about 8 o'clock of the evening of July 31, 1906. At the
same time he shot one Henry Dyer, the companion of Williams, inflicting a wound on Dyer
which rendered him a cripple for life. There is nothing in the record showing or tending to
show any motive upon the part of the defendant that would cause him to wish to kill Williams
or injure Dyer. In fact, it appears undisputed that the defendant was not even acquainted with
the deceased, and had only a slight acquaintance with Dyer, and that acquaintance entirely
friendly. The theory of the state, if we understand it, was that the defendant killed Williams
by mistake, thinking the latter was one O'Brien, a man with whom defendant had had trouble
during the day over a prostitute. Williams, the deceased, was a young man highly respected in
the community, where he resided with his parents. He was conductor on the local
narrow-gage railroad running between Austin and Battle Mountain, the only towns of any
considerable importance in the county. He was known by the majority of the people, and was
regarded as a very popular young man. Dyer, the wounded associate of Williams, was at the
time county recorder, a man almost universally known in the county. The defendant has only
been in Austin and in the county a few days when the homicide occurred. He was a gambler
by occupation, and was without friends, and had but few acquaintances in the county where
he was to be tried for his life.
29 Nev. 421, 431 (1907) State v. Dwyer
few acquaintances in the county where he was to be tried for his life. It does not appear, and
is not likely from the facts shown, that he had many friends of influence at any place. The
shooting down of two prominent citizens of Lander County upon one of the principal streets
of the county-seat, without any apparent cause, by a stranger whose character was not of the
best, was something that quite naturally would arouse general public indignation.
Immediately following the homicide it is shown that threats of violence against the defendant
were made; some of these threats being made by prominent citizens both at Austin and at
Battle Mountain. Whether or not there was ever any real danger of mob violence, the public
feeling was such that the sheriff and peace officials of the county deemed it necessary to take
precautions for the safety of the prisoner. The public feeling immediately following the
homicide and at the time of the trial may be indicated by the following extracts from the
testimony of witnesses given in support of and in opposition to the motion for a change of
venue:
P. A. McCarran, one of the defendant's attorneys, testified: That in conversation with C. F.
Littrell, the postmaster of Austin, during the progress of the trial, the latter remarked
concerning the defendant: It would be a hell of a jury that wouldn't convict that fellow.
Also that in a later conversation Mr. Littrell said: If he was acquitted tomorrow, he would
not be apt to get out of town alive.
C. F. Littrell testified as follows: I asked McCarran if he was one of the counsel, and told
him he had a pretty hard fight here, and he said: Would you want to proffer a box of cigars
that we do not clear him?' I said: It would be a hell of a jury that would turn him loose.' * * *
Q. Is it not true that the opinion you expressed is entertained by all the intelligent members of
this community? A. At the time the thing happened there was quite a feeling, but I cannot say
that I have heard anyone express themselves lately. Q. Have you ever heard anybody express
themselves contrary to the opinion that you expressed yourself? A. No, sir. * * * Q. Do you
remember expressing a further opinion to Mr. McCarran with reference to the probable result
to the defendant in case he should be acquitted on this trial?
29 Nev. 421, 432 (1907) State v. Dwyer
to the defendant in case he should be acquitted on this trial? * * * A. I remember saying that I
thought that if the officers had not made the arrest as soon as they did, and the defendant had
attempted to get out of town, I do not think they would have ever had him locked up. Q. You
mean that he would have been lynched? A. Yes, sir. Q. The public feeling at that time was
very strong? A. Most assuredly. Q. If the officers had not got hold of him, the people would
have lynched him? A. Yes, sir. Q. The feeling against the defendant at the present is very
strong, as far as you know? A. I have not discussed with anybody except Mr. McCarran
recently. I remember telling Mr. McCarran about the first part of it. Q. Did you hear Mr.
McCarran testify this morning? A. Yes, sir. Q. Wasn't his testimony with reference to this
matter substantially correct? A. I would differ in the point as to whether I said he would not
get out of this trial, or whether I said when the arrest was made. I will not be positive about
that. * * * Q. Don't you think that the condition of public sentiment with reference to this
matter will have some slight effect on any jury that is impaneled to try the case, however fair
the jury might be? A. I could not say in regard to that. Of course, it might have some; but I
don't see why a man could not be conscientious in the matter.
C. B. Francis, a native of Austin, testified that he saw the remains of A. C. Williams and
the condition of Henry Dyer after the shooting; that the general expression of opinion was
that the party who killed him ought to be hungsummarily executed; that he heard several
expressions of opinion that he ought to be lynched. Subsequently the witness Francis was
employed as a deputy sheriff to assist in guarding the prisoner. Witness testified that after he
was so employed he was approached by two or three parties and asked if he would take a
hand in lynching the defendant.
H. Warren, one of defendant's attorneys, testified that he had talked with more than fifty
persons at Battle Mountain and Austin with a view of ascertaining what the feeling was in
Lander County relative to the defendant, and that he had not heard an expression of opinion
favorable to defendant, but that he had invariably heard expressions of opinion strongly
unfavorable to him.
29 Nev. 421, 433 (1907) State v. Dwyer
ant, but that he had invariably heard expressions of opinion strongly unfavorable to him.
R. R. Landes, an employee of the Bank of Austin, testified substantially to the following
effect: That from the expressions of opinion that he had heard the feeling in the community
was not at all in favor of the defendant, and in the majority of cases was very strong against
him. On the night of the killing, witness testified, he heard two or three persons express
themselves to the effect that the defendant should be lynched.
T. A. Oliver, deputy sheriff and jailer, testified to the following: Q. You have had an
opportunity since to learn what the public opinion is with reference to the defendant? A. Yes,
I have heard talk. Q. Will you state whether or not, as far as you have heard, that it is
favorable or unfavorable? A. I should say it is unfavorable. Q. Very unfavorable? A. I should
say very unfavorable. Q. To what number of people of Lander County does this feeling
extend? A. I could not say. Q. Do you think it is entertained by a small number or a large
number? A. Judging from our efforts to select a jury, I should say quite a large number of
people. Q. Do you think that a jury, if selected in this case, will not be influenced by that
opinion? A. I would not like to say whether I do or not. Q. Don't you believe, from your
knowledge of the situation, that a jury that failed to find a verdict for conviction would
receive a very hot reception in the Town of Austin? A. I believe they would. Q. You believe a
verdict of that kind would be very unpopular? A. Yes, sir. Q. Don't you think that the fact that
it would be unpopular would influence a jury in arriving at a verdict? A. I have no right to
say. Q. What is your opinion? A. If I were a juror, I would say it would have no influence. Q.
With your knowledge of juries here and the community, do you think that a jury will not be
influenced to some extent by the public feeling that exists? A. If a juror qualifies, he should
not be so; but I should not like to say that I believe he would be. That is going too far.
Charles A. Cantwell, assistant cashier of the Bank of Austin, also an attorney at law,
testified as follows: Q.
29 Nev. 421, 434 (1907) State v. Dwyer
Some time along about the 31st day of July or the 1st day of August you were asked to
counsel with or see the defendant, were you not, or told that you could have the case, or
something to that effect? A. I think it was some time within a week after the killing of Mr.
Williams that Sheriff Murphy came to me. I don't remember just what the proposition was,
but the idea he gave me was that I could have a place in the defense of this case if I desired it.
Q. What did you reply? A. I told him that I did not want it. Q. Why? A. I told him in the first
place that it was the unpopular side of the case, and I did not care to go into it, and my own
feelings were such that I did not feel that I could do Dwyer justice as an attorney. Q. What did
you consider the feelings as against the defendant? A. I took it that his position was so
unpopular that I would injure myself in the long run by taking any part in the case. Q. Do you
think there has been very much of a change since that time? A. No, sir; I do not. * * * My
friendship for Henry Dyer, and my friendship and respect for Bert Williams, and the general
view that I took of this killing, were such that I could not go into the defense of this man with
my whole heart and soul, and give him what he was entitled to get from me as an attorney
under the oath that I have taken before this court. * * * Q. Mr. Cantwell, what did you
consider the public opinion in this town and this vicinity with reference to the guilt of Mr.
Dwyer at the present time? A. I should judge it is almost the unanimous opinion of the
community that he is guilty of the offense charged against him. Q. Do you believe, from your
own experience, that any one, being in this town and community at the time of this
occurrence, and remaining here ever since, could escape a feeling in this matter? I mean a
feeling of resentment against the defendant? A. No; I do not think they could. * * * Q. Do
you not believe that any jury impaneled to try this case would be to some extent influenced by
the feeling of prejudice against the defendant, which you say exists in this community? A. Of
course, there is a possibility that you could get a jury so strong-minded that they would not
consider this; but I do not believe that it is possible. Q. To get a jury that would not be
influenced to some extent by the feeling of the community? A. I think it would not be
possible to get such a jury."
29 Nev. 421, 435 (1907) State v. Dwyer
by the feeling of the community? A. I think it would not be possible to get such a jury.
N. E. Bartoo, master mechanic of the Nevada Central Railroad Company, testified as
follows: Q. Do you know of any excited condition of public feeling at Battle Mountain? A.
Yes, sir; it was very strong. Q. Is it right now? A. Yes; there is some feeling there yet. Q.
What were the manifestations, so far as you remember, of that feeling? A. The feeling was
that they wanted to hang Dwyer. Q. You mean by that they wanted to hang him by violence?
A. Yes, sir; they talked about lynching. Q. Were you present at any meeting that was held
there? A. There was not any meeting. It seemed to be a general feeling with everybody. Q.
Didn't some of them, with the view of carrying into effect the general public sentiment,
arrange for car or engine to come to Austin? A. They asked me if they could get an engine to
bring them up here; I told them, Yes' that I would run the engine and help pull the string. Q.
How long was that after the death of Mr. Williams? A. It was on the 1st of August. Q. Did
you meet Mr. Watt when you came to Austin? A. I met him the first time after I came up to
the funeral, in the afternoon about 2 o'clock. Q. Did you have some conversation with him
regarding what ought to be done regarding the matter? A. We talked the matter over, and he
said: I don't know as we can do anything now. We might see Williams, and if he wants to do
anything, it is not too late yet.' I said if there was anything doing I would stay. Q. Were you
discussing the lynching of defendant? A. Yes, sir.
George Watt, ex-sheriff of Lander County, testified as follows: A. I have forgotten
whether it was the day before Bert was buried, or the day after. * * * I met Bartoo in front of
the postoffice, and we talked about the murder, and he asked me what I thought about it. I
told him I thought we ought to hang him (Dwyer); but I said that, if his father would not take
the interest, I did not feel as if I cared to put myself out. Bartoo said, We will go down and
see Williams,' and I said All right.' As we walked down the street, we met him at the corner
of Bray's, coming down the hill. We put the facts before him, and he said that he did not care
to see any more of us get into trouble, and would rather we would let it drop.
29 Nev. 421, 436 (1907) State v. Dwyer
any more of us get into trouble, and would rather we would let it drop. I said We will let it
drop right here,' and since then I have taken no interest in the case. Q. You are quite
extensively acquainted in Austin? A. Yes, sir; I know every one here. Q. Did you hear many
expressions of opinion as to what ought to be done to Dwyer? A. No; I was very busy at the
time, and did not hear very much talk. As far as I heard was a general expression of opinion.
All were very much worked up over the matter nearly every one. Q. The feeling was strong
against Dwyer? A. Yes, sir.
A. J. Maestretti, district attorney, called by the defense as a witness in support of the
motion, testified to certain precautions taken by the sheriff to protect the defendant in case of
threatened danger, after which the following questions and answers appear in his testimony:
Q. You thought it necessary to take extra precaution? A. I did not think it was absolutely
necessary. It is a fact that I thought a great many of the people were very angry and excited
about this affair, and if Dwyer should be taken out without proper precaution, and lose his
life, it would be a sad reflection on the officers of this court, and it was to take every
precaution that, in the event of anything of the kind did occur, the prisoner would have all the
protection it was possible to give him. Q. You must have thought there was some danger? A.
I thought there was a possibility of an attempt to get him. Q. You thought that by reason of
the excited condition of public opinion? A. Yes, sir.
M. J. Murphy, sheriff of the county, was called by the state and gave the following
testimony: Q. Were you here July 31st last? A. No, sir; I arrived here on the 1st of August.
Q. Did you, on that day, or any day subsequent to that time, witness the gathering of any mob
making any violent manifestations, demonstrations, or clamoring for the life of Dwyer? A.
Well, I did see several little crowds around. Q. Did you hear them encouraging or soliciting
each other or any one to make an attack on the jail or otherwise get possession of Dwyer? A. I
did not hear them, but surmised that was going on. Q. You saw people standing together
talking, and you surmised that they were discussing that subject? A. Yes, sir.
29 Nev. 421, 437 (1907) State v. Dwyer
they were discussing that subject? A. Yes, sir. * * * Q. You took what steps were necessary,
according to your judgment and those with whom you advised, for the safe care and
protection of the defendant? A. I did. Q. Is it not a fact, Mr. Murphy, that you openly and on
more than one occasion said that any who made an attempt to take the life of Dwyer would
have to do so over your dead body? A. I did. On cross-examination the witness testified: Q.
I understood you to say you were at Battle Mountain when this thing occurred? A. I was. Q.
Did you hear anything of the excited condition of public opinion at that time? A. I did. Q. By
reason of which you telegraphed special instructions to the deputy here to take special
precautions? A. Yes, sir; I wired him to capture the man if possible, and use all precaution for
protection. Q. The reason of that was you were aware of the condition of public opinion? A.
Yes, sir. Q. When you came to Austin, wasn't the condition of public opinion, to your mind,
in such an excited state that you thought it was necessary to employ extra guards. A. I did. Q.
You did employ extra guards? A. Yes, sir. Q. How many? A. Four. * * * Q. You have quite
an extensive knowledge in this county? A. Yes, sir. Q. Doesn't the feeling that existed in
Austin at that time with reference to this defendant extend generally to the county? A. As an
officer I hear more or less of it going around. Q. You hear a good deal? A. Yes, sir. Q. You
regard it as being general? A. In a sense I do. Q. As an officer, do you believe that, with the
present state of public feeling in this county, a fair and impartial jury can be obtained to try
this case? A. That is a very hard question for me to answer. I believe it is possible to get
twelve men here. There are good square men here. Q. Do you think it probable? A. I will say
it is possible. Q. During the time these hostile demonstrations and feelings prevailed against
the defendant, did you not, on more than one occasion, have to tell people in this town that
they could not take Dwyer unless they took him over your dead body? A. I did. Q. Did you
believe it necessary to make those statements? A. Yes, sir.
L. A. Weller, justice of the peace for Austin, was called by the state and testified to the
following: "Q.
29 Nev. 421, 438 (1907) State v. Dwyer
the state and testified to the following: Q. Do you believe it is probable at this time, from
your experience and opinion, and what you have heard, that a fair and impartial jury can be
secured in this case? A. I have never seen any demonstrations that would lead me to fear for
one moment that there would be any violence or attempt to take the defendant. I have heard it
talked about more here to-day than at any other time. Q. Do you believe that there is any
existence of any such feeling that would have any influence whatever on a jury sworn to try
the case? A. I do not think there is. I have not heard anything that would lead me to believe
that there was any violence contemplated. Q. Do you believe, from what you have been able
to hear, that in the event that a jury was secured to try this case, and they would render a
verdict of acquittal of this defendant, that they would be subjected to any abuse, contempt, or
anything of that kind? A. None whatever. If he was entitled to an acquittal, I think the
community would applaud the act of the jury. Upon cross-examination the witness gave the
following testimony: Q. Didn't you hear, since this killing occurred, and haven't you heard
frequently, expressions in this community against the defendant? A. I have heard expressions
against lots of people. Q. Did you hear any expressions against the defendant? A. Not
particularly. Q. Expressions of opinion characterizing the offense? A. I have heard criticisms
upon his acts. Q. Were they favorable or unfavorable? A. I have heard several people say he
ought to be hung for his act. Q. Didn't you yourself say that if any man ever deserved hanging
it was this defendant? A. No, sir. Q. Didn't you say that in front of this court house? A. I said
if the man had committed the offense, in all probability he would be hung. Q. If he committed
the offense he ought to be hung? A. It was first reported that he killed these two people in
cold blood. I said: If that is true, he deserves to hang.' Q. What was it that you said with
reference to the defendant and what ought to be done to him? A. I said, If he was guilty of the
cold-blooded murder, he should hang.
Dr. A. L. Mann, a physician residing at Austin, testified on behalf of the state as follows:
Q. Have you heard any expressions of feeling with reference to this defendant? A. Yes,
sir; I have heard a good deal of adverse criticism of his act, and the opinion that the
penalty of the law should be visited upon him. Q. Have you heard anything favorable to
him in the way of expressions? A. I did hear that there was a good deal of sympathy being
manifested, but from what quarters I could not tell. Q. Did you witness the gathering of
any mobs, at or about any of those times, for the purpose of taking the defendant's life?
A. No. sir. Q. Did you know of any such act? A. No, sir."
29 Nev. 421, 439 (1907) State v. Dwyer
expressions of feeling with reference to this defendant? A. Yes, sir; I have heard a good deal
of adverse criticism of his act, and the opinion that the penalty of the law should be visited
upon him. Q. Have you heard anything favorable to him in the way of expressions? A. I did
hear that there was a good deal of sympathy being manifested, but from what quarters I could
not tell. Q. Did you witness the gathering of any mobs, at or about any of those times, for the
purpose of taking the defendant's life? A. No. sir. Q. Did you know of any such act? A. No,
sir. Cross-examination by Mr. Warren: Q. You say you have heard some expressions of
sympathy in certain quarters, but you do not know the quarters. A. I said I heard that there
were some expressions of sympathy, but from what quarters I did not know. On the 19th of
August I was introduced to a gentleman for the first time, and the conversation led up to the
recent tragedy, and about the second expression that the gentleman made to me was that there
were a great many people in Austin who were sympathizing with the defendant. He was a
stranger here. Said he had never been here before, and I did not ask him for specific
information as to who was expressing sympathy for the defendant. Q. It is a wonder that you
did not have some doubts as to his sanity. A. Yes, sir; I did, but he proved to be a very
intelligent man. Q. Have you ever expressed your opinion in a public way? A. Yes, sir. Q.
You have heard a number of people express the same opinion that you entertain? A. Not quite
as strong as I did. Q. It was not favorable to the defendant? A. No, sir. Q. Outside of this
solitary instance, you have heard no expressions of sympathy for the defendant? A. No, sir.
Redirect: Q. You have stated that you stated you opinion very emphatically. Have you any
objection to stating at this time the expression that you made? A. No, sir. I said that if the
defendant had killed my boy in the manner in which he had killed that boy, if I could get hold
of my pet rifle, I would get him if it was the last thing I did on earth.
A. B. Cooper, called on behalf of the state, testified as follows: Q. I want to read you a
little portion of the affidavit of Mr. Dwyer at the bottom of page 9. (Reads portion of
defendant's affidavit concerning A. B. Cooper.) Mr. Cooper, what have you to say as to the
truth of those matters? A. I don't think it is as it ought to be.
29 Nev. 421, 440 (1907) State v. Dwyer
defendant's affidavit concerning A. B. Cooper.) Mr. Cooper, what have you to say as to the
truth of those matters? A. I don't think it is as it ought to be. I did not make any remark that I
would lose my license if I testified in this case. I did talk with Mr. Warren, and he asked me a
few questions, and I told him I thought I did not know enough about it to make a witness, and
I asked him if the prosecution did not subpena me, if he would not, and he said, No.' Q. Did
you say you were afraid to be called as a witness because your business would be ruined? A.
No, sir. Q. Did you say your license would be taken away from you? A. No, sir. Q. If you
knew any testimony that would be favorable to Dwyer, would you hesitate on any account to
give him the benefit of that testimony? A. No, sir. Upon cross-examination the witness
testified as follows: Q. Didn't you tell me. Mr. Cooper, that you wanted to be left out of it;
that it was hurting your business? A. No, sir; I just said that the killing had hurt business all
around. Q. Didn't you say that it hurt your business especially? A. It hurt my business the
same as anybody else. Q. Didn't you said it would hurt your business if you testified in favor
of the defendant? A. Yes, sir. Q. By reason of it being supposed that you were for the
defendant? A. No, sir; I said if I should sympathize with him in any way it would hurt my
business.
S. E. McIntyre, called on behalf of the state, denied certain allegations in defendant's
affidavit that he (McIntyre) had made any violent expressions concerning defendant, or that
he had at any time solicited or encouraged the doing of any violence to defendant, or that any
one invited or solicited him to engage in any unlawful act towards the defendant, or that he
knew of any mobs for such purpose. Upon cross-examination the witness testified: Q. The
people thought he ought to be punished for committing the crime. That feeling was general?
A. I should judge so. Q. It extends to every one you know around here? A. Yes, sir; I think
most every one is of that opinion. Q. Entertains a feeling against the defendant? A. I don't
know as it is against him. Q. I believe you said you thought he was guilty? A. A man is not
guilty until he is proven so. Q. It is a general opinion that he is guilty? A. Yes, sir. Q. All it
needs is the stamp of approval of the court and jury? A. Yes, sir; to be legally guilty. Q.
That is the general feeling, is it not, here? A. As far as I know. Q. Don't you think that
general feeling is going to influence any juror? A. No, sir; I don't know as it would. Q. Do
you think that you could get two people out of Austin that would be free from that
feeling? A. I think you could out of the county. Q. What part of the county? A. From
different parts. Q. You do not know where there are enough people residing to obtain a
jury? A. No, sir."
29 Nev. 421, 441 (1907) State v. Dwyer
that he is guilty? A. Yes, sir. Q. All it needs is the stamp of approval of the court and jury? A.
Yes, sir; to be legally guilty. Q. That is the general feeling, is it not, here? A. As far as I
know. Q. Don't you think that general feeling is going to influence any juror? A. No, sir; I
don't know as it would. Q. Do you think that you could get two people out of Austin that
would be free from that feeling? A. I think you could out of the county. Q. What part of the
county? A. From different parts. Q. You do not know where there are enough people residing
to obtain a jury? A. No, sir.
The state also introduced a number of affidavits denying portions of the defendant's
affidavits wherein he charged the affiants as advocating violent measures against him, but
which did not refer to the feeling generally in the county.
Upon the last renewal of the motion for a change of venue the defendant offered the
following testimony:
Scott Hickey testified as follows: Q. What was your occupation formerly? A. An officer.
Q. In Nye County? A. Yes, sir. Q. How did you first happen to come to this county? With
reference to the case now on trial? A. At the request of Mr. Lynch and a man named
Goodfriend, who loaned a team to these boys that came in here. Q. For what purpose? A. Mr.
Goodfriend wanted me to get the team, which I understood they were trying to sell, and Mr.
Lynch wanted me to come, as Mr. Dwyer was in this trouble, because he thought I was pretty
well acquainted here, and there was some pretty bad talk being made. * * * Q. Where have
you been, out of town, since that time? A. In Battle Mountain, Bullion, Tonabo, and here
again. Q. During all of the several times that you have been in this county, and the several
places you have been, have you conversed with many citizens of this county relative to the
defendant? A. Yes, sir; I have conversed with quite a number. Q. Approximately how many
would you say? A. I don't know. I have talked more or less every day, and with a great many
different people. Q. Have you talked with a hundred people? A. Yes, sir. Q. In consideration
of your talking with that number of people, what would you consider the feeling here is
toward the defendant? * * * A. Against him. Q.
29 Nev. 421, 442 (1907) State v. Dwyer
In what degree, mildly or strongly? A. Strongly against him. Q. Angry and excited? A. Well,
they speak very strongly against him, not in his favor by any means. There is no sympathy for
him. Cross-examination: Q. How long have you known the defendant? A. I think about a
year and a half. Q. You are friendly disposed towards him? A. Yes; by meeting him and
speaking to him.
George Watt testified concerning his informing Deputy Sheriff Oliver of an alleged attack
on the jail as follows: A. I believe it was a week ago yesterday. Henry Dyer telephoned up to
me that he would like to see me, and I came down. I met him in the door of the saloon. He
called me back and said he wanted to talk with me. He was pretty much under the influence
of liquor at the time. He said: I have been thinking this matter over, and partly made up my
mind to get that fellow if I can get some of the boys to go with me; but I don't want to do
anything where I would have to hurt Al. Oliver.' He asked me to ask Oliver how he felt about
it. He said: I am a cripple for life, and he killed one of my best friends, and I am pretty much
enraged over it.' I went to Al., and he said to tell the boys they had better not come. * * * Mr.
Dyer was the only person who spoke to me about it, and he mentioned no associates. He said
he thought he could get some of the boys to go with him. I spoke to Henry the next morning,
and he said he would say no more about it. Q. From your own observation, knowledge, and
intercourse with the people, what would you consider the state of public feeling against this
defendant throughout the county? A. At the time it happened it was pretty strong, but I
believe right now I could try Mr. Dwyer. Q. You think you could try him, and give him what
you believe he is entitled to? A. Yes, sir; and not any more, either. Q. Don't you think it
would take a good deal of evidence to make you turn him loose? A. I would surely turn him
loose if he was innocent. Q. You say that you believe you are in a condition to try him. You
believe you know the state of facts, and from that state of facts he deserves punishment? A.
From my condition at present, it is hard to tell what I would do.
29 Nev. 421, 443 (1907) State v. Dwyer
Recross-examination by Mr. Maestretti: Q. Isn't it what you mean to say that, if you were
taken as a juror, if the state did not show you something in the way of evidence, you would
not convict him? A. No, sir. Q. You believe now that, although you may have been somewhat
excited at first, now you would be absolutely fair? A. Yes, sir. Q. Don't you believe that that
is the statement of most of the people? A. It ought to be.
H. W. Dyer testified as follows: A. What Mr. Watt said was true, except that I said I had
made upon my mind to get this fellow. I do not want to be understood as saying that I had
made up my mind to get this defendant; but what Mr. Watt said was true in all other respects.
* * * Q. Was there anything further back of your declaration to Mr. Watt? Had you consulted
anybody or taken any steps toward forming a mob? A. I just asked Mr. Watt's advice.
H. J. Plummer was called by the defense and testified that he had resided in Austin since
the 21st day of May preceding; that he had heard E. W. Hunt, one of the jurors selected to try
defendant, remark concerning the defendant: The , they ought to hang
him. E. W. Hunt was subsequently examined, and denied that he had ever made such a
remark.
The foregoing contains substantially all of the material evidence before the court upon the
motion, excepting that shown by the examination of the various jurymen on their voir dire.
With the exception of L. A. Weller, the justice of the peace, there is not a witness who
expressed an opinion that he thought a jury could be obtained that would not be influenced by
the public sentiment against the defendant. The sheriff thought it possible to get such a jury,
but he would not say he thought it probable. George Watt was of the opinion that he had
cooled down sufficiently so that he could give defendant a fair trial, and he expressed himself
to the effect that the sentiments of most of the people ought to be the same as his own; but he
did not venture the opinion that he believed they were. One hundred and seventy-five
jurymen were examined before the jury was finally obtained, and it appears that the available
jurymen of the county were very nearly exhausted when the jury was secured.
29 Nev. 421, 444 (1907) State v. Dwyer
very nearly exhausted when the jury was secured. Of the talesmen examined, one hundred
and forty-three were excused by the court for having formed or expressed unqualified
opinions touching the guilt or innocence of the defendant, and, all things considered, there
can be but little, if any, doubt that the opinion formed or expressed went to the guilt of the
accused. After deducting from the list those that were excused for other causes, it is safe to
say that eighty-five per cent of the jury lists had formed or expressed an unqualified opinion
as to the guilt or innocence of the defendant. Of the jury that was finally secured to try the
case, five, who resided in or near the towns of Austin or Battle Mountain, had expressed
qualified opinions touching the guilt or innocence of the defendant that they stated would take
evidence to remove and of the five it has been strenuously contended that two, at least, were
shown to have been disqualified, namely, L. A. Lemaire and E. W. Hunt.
L. A. Lemaire, after testifying, and showing satisfactorily, we think, that the opinion which
he then had was a qualified one, testified as follows concerning the expression of an opinion:
Q. Have you expressed an opinion as to the guilt or innocence of the defendant? A. Yes, sir.
Q. Was that opinion expressed with a qualification, or just an expressed opinion without a
qualification? A. The opinion is from what I have heard and read of the matter. Q. Did you
qualify it when you expressed it? A. I don't think I qualified it. * * * Q. You stated that you
have expressed an opinion, and without any qualifications? A. Yes, sir. Upon examination
by the district attorney the juror testified: Q. Mr. Lemaire, if I understand you correctly, you
say that the opinion you expressed was one you had formed from what you had heard and
read? A. Yes, sir. Q. You based your opinion on that? A. Yes, sir. Q. You have not heard any
of the proceedings in the case? A. No, sir. Q. You were not present at the coroner's inquest or
the preliminary examination? A. No. sir. Q. Then you have not heard any opinion, except that
which you have formed on what you have heard and read? A. No, sir. Q. Is that the opinion
you expressed? A. Yes, sir. Q. Did you, at the time you expressed that opinion, have in
your mind the reservation that it was a qualified opinion, based on those things that you
had heard and read? A. If I had not heard and read anything, I could not have formed any
opinion. Q. Isn't your opinion something like this: If so and so is the case I believe so and
so, or if matters I have heard are true I believe such and such a thing.
29 Nev. 421, 445 (1907) State v. Dwyer
opinion you expressed? A. Yes, sir. Q. Did you, at the time you expressed that opinion, have
in your mind the reservation that it was a qualified opinion, based on those things that you
had heard and read? A. If I had not heard and read anything, I could not have formed any
opinion. Q. Isn't your opinion something like this: If so and so is the case I believe so and so,
or if matters I have heard are true I believe such and such a thing. Was that the nature of the
expressions you made? A. I took what I heard and read to be the facts of the case, and
expressed an opinion accordingly. Q. You had no reason to doubt what you had heard? A.
No, sir. Q. It was on the strength of that that you expressed an opinion? A. Yes, sir. The
court then examined the juryman as follows: The Court: Do you know the difference
between a qualified and an unqualified opinion? A. Yes, sir. Q. What opinion did you
express? Was it qualified, or unqualified? A. I think it was a qualified opinion.
The expressing of an unqualified opinion touching the guilt or innocence of the defendant,
when such opinion is not based solely upon newspaper reports, is by statute made a
disqualification of a juryman, regardless of what opinion the talesman may actually have at
the time of his examination. (Cr. Prac. Act, 340; Comp. Laws, 4305; State v. Roberts, 27
Nev. 449, 77 Pac. 598.) Mr. Lemaire, having been examined both as to the opinion which he
then entertained and as to an expression of an opinion which he had previously made, must
have confused the two propositions; for his answers given to the court and to counsel are in
conflict. It is to be regretted that his attention was not called to this conflict, and the juryman
given an opportunity to express himself so that there would be no possibility of a
misunderstanding. From the examination of this juryman by counsel for the state, as well as
the defendant, taken alone, we think the juryman would be disqualified. The answers given to
the only two questions propounded by the court, taken alone, would show him to be a
qualified juryman. Taking his whole examination upon the question of the character of
opinion he expressed, and it is contradictory, if not utterly confusing; a condition which
one or two questions from counsel would have easily cleared.
29 Nev. 421, 446 (1907) State v. Dwyer
the character of opinion he expressed, and it is contradictory, if not utterly confusing; a
condition which one or two questions from counsel would have easily cleared.
E. W. Hunt testified that he had both formed and expressed a qualified opinion touching
the guilt or innocence of the defendant. During the course of his examination the following
questions were propounded and answers given: Q. Have you ever expressed the opinion that
the defendant was guilty or ought to be hung? A. No, sir. Q. Have you ever expressed the
opinion that he was guilty? A. I have. Q. You have expressed that opinion? A. Yes, sir. Q. Do
you entertain that opinion at this time? A. Not of the indictment. Q. Do you in any sense? A. I
do of the act; yes, sir. Prior to the foregoing the following questions and answers appear in
the examination of this juryman: Q. How many people have you talked with about this case?
A. Quite a number. Q. Have you heard expressions of a favorable opinion to the defendant?
A. Yes, sir; one. Q. Outside of court? A. No, sir. Q. You have expressed your opinion a good
many times? A. Yes, sir. Q. You have expressed it to the effect that the defendant was guilty,
have you not? A. Not of the indictment; no, sir. Q. But he was guilty of the homicide? A.
Yes, sir. Q. You have expressed the opinion that the defendant was guilty of the act? Is that
what you said? A. I never expressed that opinion, because it is not necessary. There is no
opinion on such a thing. Q. He is guilty of the homicide; you know that? A. I believe that to
be true. I do not know it. Q. You have expressed an opinion that far, have you not? A. Yes,
sir. Q. Have you expressed an opinion any further than that? A. I expressed a qualified
opinion. Q. Further than the opinion that he committed the act? A. Yes, sir. Q. But it was a
qualified opinion? A. Yes, sir. Q. You qualified it then? A. Yes, sir. Q. How did you qualify
it? A. By the word if.'
While it is urged that, upon the testimony quoted, this juryman is disqualified, we will
only consider his examination, the same as that of Mr. Lemaire, as a part of the case
presented to the court upon a motion for a change of venue.
29 Nev. 421, 447 (1907) State v. Dwyer
From all the facts and circumstances before the court, can it be said that it was an abuse of
discretion to have denied defendant's motion for a change of venue? It must be apparent that
the proper solution of the question here presented is of far greater importance than the mere
question of the guilt or innocence of this defendant. The right of trial by a fair and impartial
jury is one of the most valuable privileges guaranteed by constitution to the citizen. The law
cannot be a respecter of persons, and say that his man shall be tried by a jury uninfluenced by
public sentiment, and another man must take this chances with a jury that is subject to all the
insidious forces that an almost universal public sentiment has time and again been
demonstrated to wield. It is the glory of our judicial system that it throws the safeguards of
protection from improper influences around the high and the low, the rich and the poor, alike.
No matter how low a man may fall in the scale of human degradation, no matter how
deep-dyed a criminal he may be, the law says he shall not be punished for his crimes, except
upon a fair and impartial trial before an unprejudiced jury. If we are to say that the showing
was in this case insufficient to warrant a change of venue, we have at least established a
precedent that more of a showing than that here disclosed must be made before a change of
venue can properly be had. But we do not believe such precedent should be established. It is
shown here by overwhelming proof that it was almost the universal belief in the County of
Lander that the defendant was guilty of the crime charged. The homicide was one which
naturally would create a strong feeling of prejudice against the prisoner in a county of small
population and where the person killed was very generally known, respected, and popular.
Even if it were possible to procure a jury of twelve men from remote parts of the county who
were not acquainted with the parties, and who had not heard the case discussed, and who
could readily qualify, yet it would be hardly possible for such a jury not to become aware of
the existence of such a general public sentiment; for the jurymen could not help but listen to
the examination of the other talesmen nearly nine-tenths of whom were disqualifying
themselves because of their opinions, a circumstance to be considered, with others in the
case, even though it alone might not be sufficient to warrant a change of venue.
29 Nev. 421, 448 (1907) State v. Dwyer
qualifying themselves because of their opinions, a circumstance to be considered, with others
in the case, even though it alone might not be sufficient to warrant a change of venue. In this
case, however, a number of the jurymen selected to try appellant must have been acquainted
with the public sentiment, independent of what might be disclosed upon the examination of
other jurymen.
As apropos to the case now under consideration we quote from an opinion of the Supreme
Court of Iowa in the case of State v. Crafton, 89 Iowa, 109, 56 N. W. 257: Each case must
depend upon its own particular facts and circumstances. We know how difficult it is for an
appellate court to see these matters as they may have appeared to the trial judge, and hence it
becomes us to be exceedingly careful in passing upon the question of the proper exercise of
the discretion vested in the trial court. When, after due investigation, we are satisfied that the
trial court has made a mistake, it is our duty to rectify it as far as possible. The language of
this court in the case of State v. Nash, 7 Iowa, 347, is applicable in this case. It was there said:
It is important, to maintain the usefulness of our judicial system, that no suspicion of
influence from popular excitement in the administration of the law should be allowed to
impair the public confidence in the fairness and impartiality of judicial proceedings. An
excited state of public feeling and opinion is always the most unfavorable for the
investigation of the truth. Not only should the mind of the juror be wholly without bias and
prejudice, it should not only be free from all undue feeling and excitement in itself, but it
should be, as far as possible, removed from the influence of prejudice and feeling and
excitement in others.' A man charged with the commission of the grave crime of murder has a
right to be tried by an impartial jury and in a community where his case has not been
prejudiced and prejudged. It matters not what the standing or reputation of this defendant may
be, or how low his condition, the law throws around him all the safeguards which the
enlightened wisdom of the ages has shown essential to the safe, orderly, and impartial
administration of justice. Considering the magnitude of the crime charged, the limited time
between the homicide and the trial, the showing made for a change of venue, and the
weakness of the resistance, we are impressed with the conviction that the court below
erred in overruling defendant's motion."
29 Nev. 421, 449 (1907) State v. Dwyer
limited time between the homicide and the trial, the showing made for a change of venue, and
the weakness of the resistance, we are impressed with the conviction that the court below
erred in overruling defendant's motion.
Also from the opinion of the Supreme Court of Alabama in the case of Seams v. State, 84
Ala. 410, 4 South. 521: We repeat that the trial must be just, as well as the verdict reached
through its appliances. This cannot be done as long as the minds of the jury are liable to be
influenced by a prevailing public prejudice against the prisoner. When excitement runs high,
and a public sentiment generally or widely prevails which would justify or tolerate a dealing
with the prisoner by the culpable modes of mob violence, which is the enemy of all law and
good government it is difficult to keep the infection of such prejudice from finding its way
into the jury box, however honest in purpose the jury may be, or however enlightened may be
the community from which they come. The duress of public opinion is often insidious and
potent, and the best of men sometimes become its victims without being aware of it, or
without the courage to resist the dominion of its influence.
See, also, People v. Suesser, 132 Cal. 631, 64 Pac. 1095; State v. Manns, 48 W. Va. 480,
37 S. E. 613.
As we have before stated, each case must depend upon its own particular facts and
circumstances; but none of the numerous cases cited by counsel for the state, in our judgment,
afford a precedent for sustaining the order of the court in this case.
The defense of insanity, superinduced by alcoholism, was interposed by the defendant.
Two physicians, Dr. W. L. Samuels and Dr. Monihan, testified that, from their examination
of the defendant and from the evidence adduced, the defendant was, at the time of the
homicide and at the time of their testifying, suffering from alcoholic insanity, and was
mentally irresponsible for his acts. Dr. A. L. Mann, from what would appear to be equal
opportunities of examination and observation and from the evidence adduced, testified on
behalf of the state that the defendant in his opinion was sane, both at the time of the homicide
and at the time of the trial.
29 Nev. 421, 450 (1907) State v. Dwyer
the time of the trial. This disagreement in the views of physicians of standing upon a question
of so great importance serves to illustrate how dangerous it might be for such a vital question,
upon such a conflict of testimony, to be left to a jury selected from the body of a county,
where it may be reasonably presumed from the evidence adduced that nearly nine-tenths of
the residents of the county believed unqualifiedly in the guilt of the defendant, and where
nearly half of the jurymen were selected from those portions of the county where the feeling
was most general and bitter, and who showed by their examination that they were aware of
the public feeling and were themselves possessed of qualified opinions as to the guilt or
innocence of the defendant which would require evidence to remove. From all the facts and
circumstances of this case we think a jury selected as this one was would likely be influenced
more or less by the general public feeling, instead of being governed entirely by the evidence
introduced upon the trial.
For the reasons given, the judgment is reversed, and the trial court is directed to grant the
motion for a change of venue, for the purposes of a new trial, which is ordered.
____________
29 Nev. 451, 451 (1907) Berry v. Equitable Gold Mining Co.
[No. 1708-1/2.]
T. BERRY, T. J. CARNEY, A. FAVA, J. HAMILTON, and JONATHAN LEES,
Respondents, v. THE EQUITABLE GOLD MINING COMPANY, a Corporation,
Appellant.
1. AppealRecordFilingOriginalCopy. Two duplicate volumes entitled Statement
on Appeal in the handwriting of the clerk of the district court were filed September 8, 1906. They were
identical, except that one of them was endorsed copy, and this, instead of the original, was the one that
was settled by the district judge. Held, that the certification and settlement of the copy, instead of the
original was not a fatal defect, but that the copy could be considered as an original.
2. SameMotion to DismissTime. A second motion to dismiss an appeal on grounds not
previously urged, not made before the day of the hearing, nor until after respondent had filed his brief,
was too late.
3. JudgmentOrder for JudgmentExceptionTime of Taking. Where no order was made
directing the entry of judgment at the time a verdict was rendered, but defendant's counsel took an
exception as soon as a nunc pro tunc order was made and he became aware of the direction that judgment
be entered, the exception was in time.
4. AppealJudgment RollContentsSummons. The summons is not an essential requisite
of a judgment roll to sustain an appeal, where the judgment was rendered after trial at which defendant
appeared.
5. JudgmentEntry by ClerkAuthority. A decree for a perpetual injunction entered by the
clerk was void on its face, where it was unsupported either by the verdict rendered or by an order of the
judge directing its entry.
6. TrialGeneral and Special Verdict. Where there is a general and a special verdict, if either
has force, the latter controls.
7. Waters and Water CoursesAppropriation of WaterBeneficial Use. Where plaintiffs
claim that S. had appropriated the water of a spring and had deeded same to them and sought an
injunction perpetually enjoining defendant from interfering therewith, plaintiffs' right to the water was
limited to the water and amount thereof beneficially appropriated, so that the jury having found that S.
appropriated twenty gallons a day, plaintiffs were only entitled to that amount and could not restrain
defendant's use of the excess.
8. Decree on Special Verdict. In an equity case in which the clerk has entered a decree for a
perpetual injunction which is void because it was not authorized by any order of the court, the special
findings of the jury, at least with the consent of the parties, may be considered a correct determination of
the facts and as warranting the entry of a proper decree upon them by the district court, even if the judge
who tried the case has been superseded in office.
Storey County; M. A. Murphy, Judge.
trict of the State of Nevada, Storey County; M. A. Murphy, Judge.
Action by T. Berry, et al., against The equitable Gold Mining Company. From a judgment
in favor of plaintiffs, and from an order overruling defendant's motion to set it aside,
defendant appeals. Motion to dismiss appeal. Denied. Judgment set aside. Case remanded.
F. M. Huffaker and F. P. Langan, for Respondents, on motion to dismiss appeal:
I. We believe the direct questions: Whether, under our practice act, a plaintiff can in his
complaint join with a legal an equitable demand, and, if so, how should such a case be tried?
have not heretofore been adjudicated in this state. But as the provision in our constitution is
similar to that in the constitution of the State of New York, and that our practice act was
modeled after the New York code, the provisions of the two as to the questions herein
involved being substantially the same, and the New York courts having adjudicated directly
thereon, we refer to such adjudications as authoritative. The first case referred to is where the
plaintiff filed a complaint against two persons, claiming to recover against one for rent due
upon a lease, and against the other upon equitable grounds. The trial court dismissed the
complaint, from which an appeal was prosecuted, of all of which the New York Court of
Appeals says: This action was brought by the plaintiff as receiver to recover rent due upon a
lease of 212 Broadway in the City of New York given by the plaintiff's predecessor, as
receiver to Hudson, one of the defendants. The plaintiff claimed to recover against the
defendant Mords upon equitable grounds, and thereafter brought the case to trial at a special
term, when the defendant insisted that the case should be tried by jury; this was denied by the
court and the case tried without a jury. The defendant's counsel now claims that this was a
waiver by plaintiff of any right of recovery upon strictly legal grounds, and that, unless it
appears upon the trial that plaintiff
was entitled to recover in equity, the judgment dismissing the complaint should be affirmed,
although it appears the plaintiff was entitled to recover a law. This position cannot be
maintained. The code (sec. 69) abolished the distinction between actions at law and suits in
equity, and provides that thereafter there shall be but one form of action for the enforcement
or protection of private rights, etc. Section 142 provides that the complaint shall contain a
plain and concise statement of the facts constituting the cause of action. Under the code it is
clear that the facts entitling the party to both kinds of relief may be included in the same
complaint, and both attained in the same action, when arising out of the same transaction.
II. We most respectfully submit that the question whether the case at bar is in equity or at law
was not before the court in the proceedings for mandamus herein, for the application for the
writ did not show that at the time Judge Murphy set the case for trial by jury it objected to
such order, was overruled, and excepted. Nor at the impaneling of the jury to try the whole
case did it object on the ground that the case was in equity, and in such case a jury could only
be impaneled and sworn to find special facts, or for any other reason, so as to reserve the
question, in the absence of which such question cannot, for the first time, be raised in this
court on mandamus, or otherwise. Appellant, having failed to object to the order of the trial
court for a trial by jury, and to the impaneling of the jury for such trial, cannot, after a trial by
jury, raise the question in the trial court, for the law presumes it acquiesced in such trial,
which, under our practice act, it could do even in a purely equitable case. So, on mandamus it
was wholly immaterial whether the case was in equity or at law, and on this appeal, the
question not being properly presented to this court by the record, it is not for review. (Van
Fleet v. Olin, 4 Nev. 98.)
Mack & Shoup, for Appellants:
I. The question as to whether this case is an action at common law or a case in equity was
presented to this court in the case of Lake v. Tolles, 8 Nev. 285, on a complaint and answer
identical with the complaint and answer in this case, and in that case this court held it to
be a case in equity.
answer identical with the complaint and answer in this case, and in that case this court held it
to be a case in equity. Counsel for respondents in his oral argument and in his brief admits
that the complaint set forth an action in equity, and yet finds fault with the supreme court for
finding that this case is an action in equity. Counsel for respondents is in error as to the
position of appellant. The complaint setting forth an action to quiet title and asking for an
injunction and nothing else, appellant contends that this action is an action in equity pure and
simple, and further contends that the lower court on August 27, 1907, was right in adopting
the findings and verdict of the jury and should have compelled the clerk to enter a decree in
accordance with the findings and verdict of the jury as adopted by the court.
II. A judgment entered by the clerk without authority is void. (Lacoste v. Eastland, 117
Cal. 680; Stearns v. Aguirre, 7 Cal. 443; Kelley v. Van Austin, 17 Cal. 564; Junkans v.
Bergin, 64 Cal. 202.) In this case the clerk entering a judgment instead of a decree in equity
without any order renders this paper void.
III. It is well settled that the omission from the judgment roll of a part thereof that is not
shown to be material or important is not ground for dismissal of appeal. (Paige v. Roeding,
89 Cal. 69; Tompkins v. Montgomery, 118 Cal. 120.)
IV. In a case of this character the court should have filed its findings within ten days after the
trial, either adopting or rejecting the findings of the jury, and having failed to do so, the
judgment entered by the clerk was without authority and should be set aside or modified to
conform to the verdict and findings of the jury. (Duffy v. Moran, 12 Nev. 94.)
The plaintiffs brought this action by a complaint alleging that the water of a spring had
been appropriated by Jack Shepard and by him deeded to them, and demanded an injunction
perpetually enjoining the defendant from interfering therewith. The case tried by a jury, which
brought in a verdict in favor of the plaintiffs, and found special issues, and among these
that Shepard had appropriated twenty gallons per day of the water.
issues, and among these that Shepard had appropriated twenty gallons per day of the water.
At the time of returning the general verdict the jury had omitted to find upon the special
issues which had been submitted to them, and the court had them retire and find upon these
special issues. The next day the clerk entered a judgment, reciting and premised upon the
general verdict in favor of the plaintiffs for the water, and directing that the defendant be
perpetually enjoined from interfering with it. In reference to this entry it is stated in the record
that the county clerk of his own motion, without any order from the court, without any
findings from the court, without any order of the court adopting said findings of the jury,
entered judgment. Many months later the defendant moved to set aside this judgment. The
court denied the motion, and directed the entry nunc pro tunc of an order for judgment in
accordance with the verdict. The facts are more particularly stated in the decision on the
proceedings in mandamus to require the settlement of the statement on appeal. (State v.
Murphy, 29 Nev. 247.)
The notice and undertaking on appeal state that this appeal is from the judgment and from the
order of the district court overruling defendant's motion to set it aside. Respondents moved to
dismiss the appeal upon the ground that no statement had been settled. There are two
volumes, duplicates, entitled Statement on Appeal, both indorsed as filed September 8,
1907, by, and shown to be in the handwriting of, the clerk of the district court. These appear
to be identically the same excepting that one is indorsed copy, and the motion to dismiss is
upon the ground that this, instead of the original, is the one that has been settled by the
district judge. On the hearing in this court we directed that the latter might be filed, or that the
other copy could be indorsed by the district judge and filed. The volumes being the same, and
both equally showing the proceedings in the trial court, the fact that the certification of
settlement was attached to the one marked copy after this court had directed that the
statement be settled we think is immaterial and should not deprive the appellants of the right
of appeal or of presenting their case. As the one marked copy bears the filing and
signature of the clerk and the certificate and signature of the judge, it may be considered as
the original and the indorsement of the word copy as a misnomer.
Respondents made a second motion to dismiss the appeal upon other grounds, part of
which had been determined in the mandamus proceedings, but this motion, under the court
rule, comes too late, and the right to make the same is waived because it was not made before
the day of the hearing nor until after respondents had filed their brief.
It is said that no question regarding the sufficiency of the order of the district judge
directing that judgment be entered in accordance with the verdict can be considered, because
no exception was taken to the order at the time it was made upon the rendition of the verdict.
It is true that no exception was so taken, because the order was not then heard by counsel or
the clerk; but, when the nunc pro tunc order was made, and as soon as counsel was aware of
the direction that judgment be entered, exception was taken, and due specification of error
and the proceedings of the court are contained in the record.
It is also claimed that any defect in the judgment cannot be considered for the reason that
by omission of the summons there is no judgment roll before this court. Although the statute
directs the clerk to include the summons as part of the judgment roll, it is not necessary that
there should be one in all cases. The object and purpose of the summons is to bring
defendants into court, and the practice act provides that they may appear without summons,
and if they so appear no reason exists why they may not have their cases reviewed on appeal
in the same manner as others where there may be a summons in the case. In fact, the
summons is imperative only in default cases in which no appeal lies. Here we have before us
all the papers directed to be placed in the judgment roll excepting the summons, which is not
essential, as the defendant was in court and the judgment itself is sufficient without reference
to any other paper to indicate its invalidity. It shows that it was entered by the clerk upon the
verdict, and that it attempted to grant relief by perpetual injunction, which under the statute
he was not authorized to give.
statute he was not authorized to give. It is not signed by the judge, and contains no reference
to any order of the court. If the order entered nunc pro tunc be considered, it directs the entry
of the judgment in accordance with the verdict, without specifying the general or special
verdict.
For respondents it is argued that they had a constitutional right to a jury, and were entitled
to the result of the verdict and to have a judgment entered upon it by the clerk. If this were
true, the case were not one in equity (Duffy v. Moran, 12 Nev. 97), still neither the verdict nor
the order of the judge directs the entry of the decree for perpetual injunction which was made
by the clerk. Consequently, and too clearly for argument, this judgment shows upon its face
that it is void and cannot be sustained upon any legal principle, because it was entered by the
clerk, a ministerial officer who could not act judicially in this regard and who was not
directed to enter such decree by any order of the court, and was not, and could not have been,
authorized to enter it by the verdict of the jury. On a motion for that purpose the court could
have set aside this decree as having been inadvertently entered by the clerk and unauthorized,
and the appeal is properly from his order in that regard and from the judgment as presented
with the papers essential to be brought here in the judgment roll.
As the plaintiffs base their claim upon an appropriation alleged to have been made by
Shepard, they are limited to the amount which was beneficially used by him. The jury found
that this was ten gallons for mining and ten gallons for domestic purposes each day. Where
there is a general and a special verdict, if either has any force, the latter controls. If the jury
desired to give the plaintiffs all the water flowing from the spring or more than twenty gallons
per day because they found that their grantor Shepard had used that quantity, nevertheless the
law would limit the right to the amount beneficially appropriated. By directing judgment in
accordance with the verdict, it may be assumed that the district court approved of the finding
of the jury and found in favor of an appropriation by Shepard to the extent of at least twenty
gallons per day. The defendant complains because the decree was not modified so as to
allow the plaintiffs this quantity.
the decree was not modified so as to allow the plaintiffs this quantity. The judgment being
void because its nature was such that its entry was unauthorized by the clerk, the condition of
the case is not so materially different than it would be if no decree had been entered. At least,
with the consent of the parties, the findings may be considered a correct determination of the
facts and as warranting the entry of a proper decree upon them by the district court, even if
the judge who tried the case has been succeeded in office. (Jerrett v. Mahan, 20 Nev. 90, 17
Pac. 12.)
Respondents' motions to dismiss the appeal are denied, the judgment is set aside, and, if
within twenty days after filing of the remittitur the plaintiffs file their written consent that
judgment be entered in favor of them for the use of twenty gallons per day of the water of the
spring in controversy and for costs of suit and for a perpetual injunction restraining defendant
and its agents and employees from interfering with the free use by the plaintiffs of that
quantity of the water per day, a decree will be so entered by the district court, but otherwise a
new trial will be had.
____________
29 Nev. 459, 459 (1907) State v. Langan
[No. 1737.]
THE STATE OF NEVADA, ex rel. CHARLES H. BOTSFORD, Relator, v. FRANK P.
LANGAN, District Judge of the First Judicial District of the State of Nevada,
Respondent.
1. MandamusOther Adequate Remedy. Mandamus will not lie where there is a plain,
speedy, and adequate remedy, by motion to dismiss an appeal, for determination of the same matter.
2. AppealAppealable Order. An appeal from an order setting aside a default entered by the
clerk is not within the cases in which section 330 of the civil practice act provides that an appeal may be
taken, and therefore mandamus will not lie.
Mandamus by the State, on the relation of Charles H. Botsford, against Frank P. Langan,
District Judge of the District Court of the First Judicial District of the State of Nevada,
Esmeralda county. Dismissed.
Hall, Thayer & Steele, and C. L. Harwood, for Relator:
I. The order entered June 29th annulling the default entered June 12th is not appealable.
The statutes of this state authorize no appeal from an order of this kind, and of course if there
is no provision of law giving a right of appeal, no right exists. (Comp. Laws, 3425; Practice
Act, 330.) The case which we cited on the argument (Rauer's Law and Collection Co. v.
Standley, 84 Pac. 214) is precisely in point both as to the facts which gave rise to the action of
the court and as to the provisions of the statutes of California involved in the case. We really
do not know how to say anything more on this subject. It seems to us to be one of those
propositions that is so plain from the reading of the section of the practice act above referred
to that nothing can be said, and we were surprised to find the California authority above cited.
As we stated on the argument, it is clear to us, and we think must be apparent to the court,
that this appeal was taken after the notice of motion was served to vacate the injunction
granted in this case for no other purpose than to hinder and delay the defendant Botsford in
securing the vacation or modification of the injunction order which was tying up his
property.
of the injunction order which was tying up his property. Indeed, it is so apparent that this
appeal is absolutely without merit, and was taken for no other purpose than to hinder and
delay the respondent, that we hereby formally ask this court, pursuant to Comp. Laws, 3434,
to add to the costs in this case damages to the full amount of the bond in the sum of five
hundred dollars which was given on this appeal.
II. We refer to the following authorities where the court had dismissed the appeal, either
on its own motion or upon intimation of counsel, formally, because the court had no
jurisdiction: Bienenfield v. Fresno Milling Co., 82 Cal. 425; Thrall v. Fairbrother, 1 Kan.
App. 482; Groves v. Richmond, 58 Iowa 54; Hart v. Burch, 31 Ill. App. 22, affirmed in 130
Ill. 426. See especially the cases holding that appeal from a nonappealable order should be
dismissed by the appellate court on its own motion. (Thornburg v. Gutridge, 46 Or. 286;
Sweet v. Dow, 1 Root, 409; Savings Association v. Aherns, 50 Minn. 332; Garczynski v.
Russell, 27 N. Y. Supp. 461; Wilcox v. Wilcox, 63 Vt. 137.) A great number of cases,
including those above cited, are collected in 3 Cent. Digest, col. 970, par. 3138, and
following. See, also, Bullock v. Taylor, 112 Cal. 147, where it is held that when in any
manner it is suggested that the court is without jurisdiction it may dismiss an appeal of its
motion. To the same effect is Cline v. Bingham County, 60 Pac. 76, and see Sipple v. City of
Parsons, 52 Pac. 95, where it is held that, although the question of jurisdiction in the
appellate court is not raised by either party, the court will dismiss the case of its own motion
when the want of jurisdiction is manifest.
Detch, Carney & Stevens, for Respondent.
This is an application for a writ of mandamus against Frank P. Langan, District Judge of
the First Judicial District of the State of Nevada, for the purpose of compelling him to hear a
motion to dissolve or modify an injunction or increase the injunction bond in the case now
pending in the District Court of the First Judicial District of the State of Nevada in and for
the County of Esmeralda, entitled L. C. Van Riper, and Joseph H.
District Court of the First Judicial District of the State of Nevada in and for the County of
Esmeralda, entitled L. C. Van Riper, and Joseph H. Hutchinson, Plaintiffs, v. Charles H.
Botsford, James Davis, J. P. Loftus, and James Davis, doing business under the firm name
and style of Loftus & Davis, Goldfield Mohawk Mining Company, Goldfield Consolidated
Mines Company, Combination Mines Company, George S. Nixon, and George Wingfield,
Defendants.
It appears from the record in this case that the plaintiffs filed a complaint against the
above-named defendants for the purpose of recovering from said defendants a two-thirds
interest in 100,000 shares of the capital stock of the Goldfield Consolidated Mines Company
of Nevada of the approximate value of half a million dollars. Upon filing of the complaint, an
injunction was secured from the district court on a bond in the sum of $15,000, enjoining the
defendants from delivering to their codefendant Botsford the said stock in question until the
determination of this suit. Upon the petition of the defendant Botsford for the removal of said
cause to the Circuit Court of the United States in and for the Ninth District of Nevada, the
district court of Esmeralda County remanded said case to said United States Circuit Court on
or about the 1st day of February, 1907, and thereafter, to wit, on the 12th day of June, 1907,
the said United States Circuit Court remanded said cause back to the said district court in and
for Esmeralda County for trial.
Subsequent to February 1, 1907, when said order of removal was made from the said state
court to the United States Circuit Court and prior to June 12, 1907, when the order remanding
said cause from said United States Circuit Court back to said district court was entered, to
wit, on the 6th day of March, 1907, and while said cause was pending on removal in said
United States Circuit Court, the plaintiffs caused to be issued an alias summons out of the
said state court, and caused said alias summons to be served by the sheriff of Esmeralda
County upon said Charles H. Botsford, the relator herein, on or about the 7th day of March,
1907, and on the 12th day of June, 1907, the plaintiffs, through their attorneys, caused the
default of said Charles H.
the default of said Charles H. Botsford and others of the defendants to be entered by the clerk
of the said district court of Esmeralda County.
On or about the 7th day of June, 1907, said Charles H. Botsford filed in said cause in said
state district court a motion to vacate and set aside said default, and on the 29th day of June,
1907, after hearing arguments upon said motion, Judge Langan, district judge of said state
court, entered an order vacating and setting aside the said default, and thereafter, to wit, on
the 6th day of August, 1907, plaintiffs perfected an appeal to this court from said order setting
aside said default.
Upon the 2d day of August, 1907, the relator herein, through his attorneys, served upon the
attorneys for said plaintiffs Van Riper and Hutchinson a notice that on Monday, the 12th day
of August, at the county court house of Lyon County, Nevada, at the Town of Dayton, in said
county, they would apply to the Honorable F. P. Langan, the respondent herein, Judge of the
First Judicial District Court aforesaid, to hear a motion to dissolve or modify the injunction
theretofore granted in said cause, or to increase the bond of the injunction theretofore issued,
and on said date attorneys for said plaintiffs appeared and entered a protest against proceeding
with the motion to dissolve or modify the injunction or to increase the bond for the
injunction, and the said district court, after considering the said protest, declined to proceed,
and refused to hear the said hearing or entertain the same in any way, and announced that,
during the pendency of the appeal from the order vacating and setting aside the default, he
would not proceed with said motion or any motion of like character.
Upon the hearing of the application for a writ of mandamus in this court, counsel for the
plaintiffs appeared and demurred to the sufficiency of the petition, and further moved to
dismiss the application of relator for a writ of mandamus upon the ground that the defendants
had a plain, speedy, and adequate remedy at law. Upon the overruling of the demurrer as to
the sufficiently of the petition, counsel for relator moved that the appeal of plaintiffs in the
case entitled L. C. Van Riper and Joseph H.
Riper and Joseph H. Hutchinson v. Charles H. Botsford, et al., be dismissed because of want
of jurisdiction in this court to determine an appeal from an order vacating or setting aside a
default entered by the clerk, and moved that said case on appeal herein be placed on the
calendar, and they then and there served notices upon counsel for the plaintiffs Van Riper and
Hutchinson, and asked a continuance of the case for eight days, and moved that time for
service of notice of said application to have said case placed on the docket and notice of
motion to dismiss said appeal on the ground aforesaid be shortened to eight days from then, at
which time both parties agreed to argue said motions to dismiss the application for a writ of
mandamus and the appeal.
Stripping the application for a writ of mandamus and the motion to dismiss said appeal of
their immaterial points raised, the real decisive question involved in the merits of this
application for a writ of mandamus and motion to dismiss said appeal is whether or not an
appeal lies to this tribunal from an order setting aside or vacating a default entered by the
clerk. As the motion to dismiss the appeal raises the same point, to wit, as to whether or not
an appeal which is granted at this time in the case of Van Riper, et al. v. Botsford, et al.,
infra, lies from an order setting aside or vacating a default entered by the clerk, as is desired
and attempted to be accomplished through the means of the extraordinary writ of mandamus,
applied for by relator, it is plain that relator has a plain, speedy, and adequate remedy at law
which is now effective in his favor, and for this reason the application for a writ of mandamus
is hereby ordered dismissed.
The sole question to be determined now before the court is whether or not an appeal lies to
this court from an order setting aside or vacating a default entered by the clerk. Section 3425
of the Compiled Laws, being section 330 of the civil practice act, relating to appeals in civil
actions, reads as follows: An appeal may be taken: FirstFrom a final judgment in an
action, or special proceedings commenced in the court in which the judgment is rendered,
within one year after the rendition of the judgment. SecondFrom a judgment rendered on
an appeal from an inferior court, within ninety days after the rendition of the judgment.
judgment rendered on an appeal from an inferior court, within ninety days after the rendition
of the judgment. ThirdFrom an order granting or refusing a new trial, from an order
granting or dissolving an injunction, and from an order refusing to grant or dissolve an
attachment, and from any special order made after the final judgment, within sixty days after
the order is made and entered in the minutes of the court. FourthFrom an interlocutory
judgment or order in cases of partition which determines the right of the several parties, and
directs partition, sales, or division to be made, within sixty days after the rendition of the
same.
An appeal to this tribunal is a matter purely of statutory right, and, unless authorized by
statute, any attempted appeal taken from an order not appealable is void, and therefore could
not confer any jurisdiction upon this court to act. It is clear that, where an order is
nonappealable, no jurisdiction can be conferred on or entertained by this court by the
perfecting of an attempted appeal. Under our construction of the statute above quoted
regarding appeals, we are of the opinion that the order in question from which the appeal in
the present case is attempted is nonappealable. (Rauer's Law and Collection, Co., Inc., v.
Standley, 84 Pac. 214; Jordan v. Hutchinson, 39 Wash. 373, 81 Pac. 867; Bowen v. Webb, 34
Mont. 61, 85 Pac. 739; Thornburg v. Gutridge, 46 Or. 286, 80 Pac. 100; Burbank v. Rivers,
20 Nev. 81, 16 Pac. 430.)
____________
29 Nev. 465, 465 (1907) Van Riper v. Botsford
[No. 1735.]
L. C. VAN RIPER, and JOSEPH H. HUTCHINSON, Appellants, v. CHARLES H.
BOTSFORD, et al., Respondents.
Esmeralda County; Frank P. Langan, Judge.
Action by L. C. Van Riper and Joseph H. Hutchinson against Charles H. Botsford, and
Frank P. Langan, District Judge. From an order setting aside a default, plaintiffs appeal.
Dismissed.
Detch, Carney & Stevens, for Appellants.
Hall, Thayer & Steele, and C. L. Harwood, for Respondents.
Upon the authority of, and for the reasons stated in, the opinion rendered in the case
entitled Charles H. Botsford, Relator, v. Frank P. Langan, District Judge of the First Judicial
District, State of Nevada, Respondent (29 Nev. 459, 91 Pac. 737), the motion to dismiss the
appeal in the present case is hereby granted.
____________
29 Nev. 469, 469 (1907)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1907.
____________
29 Nev. 469, 469 (1907) State v. Eggers
[No. 1728.]
THE STATE OF NEVADA, ex rel. SAM P. DAVIS, Petitioner, v. J. EGGERS, State
Controller of the State of Nevada, Respondent.
1. State AppropriationsNecessity. Stats. 1907 (p. 408, c. 185) created the state industrial
and publicity commission, and provided (sec. 3, p. 409) that the chairman should receive from the state
treasury the sum of twenty-five hundred dollars a year in monthly installments, and that the members of the
commission should be allowed necessary mileage and traveling expenses on affidavit of the members
claiming the same that the mileage and expenses were actually and necessarily incurred in official business,
etc. Held, that the act constituted a sufficient appropriation of the salary of the chairman; but, as it failed to
prescribe any maximum expenditure for traveling expenses, the act was void in so far as it authorized
payment of such expenses by the state, under the Constitution, art. IV, sec. 19, providing that no money
shall be drawn from the state treasury except under appropriations made by law.
Original proceeding. Petition for mandamus by The State of Nevada, on the relation of
Sam P. Davis, against J. Eggers, State Controller of the State of Nevada. On demurrer to the
petition. Overruled. Writ granted.
Thompson, Morehouse & Thompson, and James R. Judge, for Petitioner:
I. Section 19 of article IV of the Constitution of the State of Nevada provides: No money
shall be drawn from the treasury but in consequence of appropriations made by law. The
question has been before the courts in a number of the states as to what language will
constitute an appropriation, and it has been invariably decided that no particular form of
words is necessary to constitute an appropriation of moneys in the state treasury; it is
sufficient that the statute declares the purpose to have the state, or some officer of the state
charged with that duty, pay moneys out of the state treasury, and from some designated fund
therein. (McCauley v. Brooks, 16 Cal. 27; Proll v. Dunn, 80 Cal. 220; Humbert v. Dunn, 84
Cal. 57; Irelan v. Colgan, 96 Cal. 413; Ingram v. Colgan, 106 Cal. 115; Ristine v. State, 20
Ind. 338; Campbell v. Com., 115 Ind. 591; Carr v. State, 127 Ind. 204, 22 Am. St. Rep. 624;
State v. Bordelon, 6 La. Ann. 68; Reynolds v. Taylor, 43 Ala. 420; State v. Kenney, 10 Mont.
485.)
II. The intention of the legislature is to be ascertained from the language of the act and the
provisions of the statutes relating to the same subject and the nature of the claim for which
the appropriation is made. If it clearly appears from these things that the legislature intended
to pay a certain amount at a certain time, and has designated the fund from which the money
is to be paid, the appropriation is complete, and payment will be forced by mandate,
regardless of form of wording of the act. (Humbert v. Dunn, 84 Cal. 57; Irelan v. Colgan, 96
Cal. 413.)
III. The true test as to whether any particular language in an act is sufficient to make an
appropriation is here found. To an appropriation, within the meaning of the constitution,
nothing is more requisite than designation of the amount and the fund out of which it shall be
paid.' If the amount be certain, one of the reasons for the constitutional requirements is
complied with, in that the people are enabled to determine how much of their money is to be
devoted to the named purpose. The designation of the fund likewise enables the people to see
how much of the moneys set apart to a particular fund is to be drawn from it and used for
the specific end.
people to see how much of the moneys set apart to a particular fund is to be drawn from it and
used for the specific end. But under our system, countenanced by the custom of years, it is not
necessary in all cases that the act in terms should name the fund. The general fund, itself, is
defined to be the moneys received into the treasury and not specifically apportioned to any
other fund.' From these moneys all appropriations are paid which are not made payable out of
any other especially named fund. (Ingram v. Colgan, 106 Cal. 117.)
I. The act creating the industrial and publicity commission (Stats. 1907, p. 408) does not
carry an appropriation. It only specifies the amount of money the chairman shall receive as
salary and the manner in which it shall be paid. Section 3 thereof provides that the salary of
the chairman and the traveling expenses of the commission shall be paid out of the state
treasury. It does not fix the amount of traveling expenses nor specify the fund out of which
either the salary of the chairman or the expenses of the commission are payable. Section 4
provides that the secretary of said commission and such other experts as may be necessary
may be paid out of such contributions as may be made by the various counties and by private
individuals. By thus distinguishing between the different sources from which the money for
the support of said commission may be derived and the method of paying such salaries and
expenses, it is manifest that the legislature did not intend in this act to appropriate money for
said purposes, but only to provide for the creation of said commission, fix the compensation
of certain of its officers, and prescribe the manner in which such compensation and other
expenses incidental to its purposes may be allowed and paid, whenever the proper
appropriations have been made therefor. No money shall be drawn from the treasury but in
consequence of appropriations made by law. (Art. IV, sec. 19, Const.)
II. To constitute an appropriation, there must be money placed in the fund applicable to
the designated purpose.
(State v. LaGrave, 23 Nev. 26; Ristine v. State, 20 Ind. 328; Stratton v. Green, 45 Cal. 149.)
III. Under Comp. Laws, 1959, 1960, the controller is forbidden to draw any warrant on the
treasury except there be an unexhausted specific appropriation to meet the same. He must
keep a separate account under the head of each specific appropriation to show at all times the
unexhausted balance of each appropriation. The foregoing requirements cannot be observed if
the act creating a publicity commission be construed as making an appropriation, because
there is no specific appropriation upon which a warrant could be drawn; also the accounts
could not show an unexhausted balance. Repeals by implication are looked upon with
disfavor. (State v. LaGrave, 23 Nev. 28, and authorities therein cited.)
Under an act approved March 29, 1907, entitled An act creating and establishing a state
industrial and publicity commission, prescribing their duties and compensation, providing
funds to be used for the accomplishment of their objects, and other matters relating thereto
(Stats. 1907, p. 408, c. 185), the petitioner was appointed chairman of the commission
designated. Section 3 (page 409) of the act is as follows: The chairman of such commission
shall receive, as compensation for his services, to be paid out of the treasury of the State of
Nevada, the sum of twenty-five hundred dollars per annum, payable in equal monthly
installments, upon the first day of each and every month, and the other two members shall
serve without compensation; provided, however, that the chairman and other members of
such commission shall be allowed necessary mileage and actual expenses of travel incurred in
traveling upon the official business of the commission when it shall appear from the affidavit
of the members, or one of the members claiming the same, that such mileage and expenses
were actually and necessarily incurred, that the same is just, and was incurred while traveling
upon the official business of the commission; such affidavit to be filed with the state treasurer
before any allowance can be made for much mileage or expenses.
As the questions involved have been submitted upon a demurrer, the facts stated in the
petition may be considered admitted. The petitioner alleges that he entered upon his duties on
the 1st day of May, 1907, and acted as chairman of this commission during that month; that
by the provisions of the act he is entitled to receive out of the state treasury a salary of $2,500
per annum, to be paid monthly; that he is also entitled to receive and be paid out of the state
treasury mileage and expenses actually incurred while traveling upon official business of the
commission; that his compensation fixed and allowed by the act for the month of May, 1907,
is the sum of $208.33, and his mileage and expenses necessarily and actually incurred in the
performance of his official duty for that month amount to $16.50, for both of which sums the
state became indebted to him on the 1st day of June; that the provisions of the act make
appropriation by the legislature for these sums in accordance with the provisions of section
19, article IV, of the constitution of this state, that these claims had been duly audited and
allowed by the state board of examiners; that upon presentation and demand, the respondent,
as state controller, has refused, and still refuses, to draw his warrants for these claims,
notwithstanding there is ample money in the state treasury. A writ of mandate requiring the
issuance of such warrants is demanded. The general appropriation bill contains no provision
for the payment of the salary or expenses of the petitioner. It may have been drawn previous
to the act designated, which was introduced near the close of the session of the legislature.
The question involved is whether the language of section 3 quoted above constitutes an
appropriation for the payment of petitioner's salary and expenses, and whether their payment
is, by this act, or otherwise, authorized.
Section 19 of article IV of the constitution provides: No money shall be drawn from the
treasury but in consequence of appropriations made by law. A similar provision is found in
the federal constitution and prevails in many of the states. In the organic acts of others the
word specific precedes and modifies the word appropriations. We will be aided by
looking to the history, purpose and reason for these constitutional enactments before
examining decisions of a number of courts bearing on the proposition presented.
constitutional enactments before examining decisions of a number of courts bearing on the
proposition presented. As the fruit of the English revolution in 1688, which sent the king to
Versailles and changed the succession to the throne, this safeguard had its origin in the British
Parliament when the people of Great Britain, to provide against the abuse by the king and his
officers of the discretionary power with which they were vested, demanded that the public
funds should not be drawn from the treasury except in accordance with express appropriation
made by parliament. This prohibition is so wise that it has become the fundamental law of
nearly every state in the Union. It has been well said that this provision was obviously
inserted to prevent the expenditure of the people's treasure without their consent. (State v.
Burdick, 4 Wyo. 272, 33 Pac. 125, 24 L. R. A. 266.) Its purpose is to secure regularity,
punctuality, and fidelity in the disbursements of the public money. (3 Story's Commentaries,
1342.) All the expenses of the government being paid by the people, it is the right of the
people, not only not to be taxed without their own consent, or that of their representatives
freely chosen, but also be actually consulted upon the disposing of the money. Such a
provision forms a salutary check, not only upon the extravagance and profusion in which the
executive department might indulge itself, but also against any misappropriation which a
rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those
governments where the people are taxed by the executive no such check can be interposed.
The prince levies whatever sum he thinks proper, and would deem it sedition against him and
his government if any account were required of him and in what manner he had disposed of
any part of them. Such is the difference between government where there is responsibility and
where there is none. (Tucker's Commentaries; Thomas v. Owens, 4 Md. 225.) This inhibition
for keeping the expenditure of the public moneys more nearly in control of the people may be
compared with the one requiring all bills for revenue in parliament to originate in the house
of commons, and in congress in the house of representatives. Under our advanced, protective
system, no officer or individual has control of the public moneys.
advanced, protective system, no officer or individual has control of the public moneys. The
provision that no moneys shall be drawn from the treasury but in consequence of
appropriations made by law requires that their expenditure shall first be authorized by the
legislature, which stands as the representative of the people. No particular words are essential
so long as the will of the lawmaking body is apparent. It has been held in a number of
decisions that the word appropriate is not indispensable. It is not necessary that all
expenditures be authorized by the general appropriation bill. The language in any act which
shows that the legislature intended to authorize the expenditure, and which fixes the amount
and indicates the fund, is sufficient. It is customary to create a legislative fund at the
beginning of the session, and separate acts appropriating money are usual at every session.
It is provided by an act approved March 8, 1879 (Stats. 1879, p. 108, c. 102), entitled An
act authorizing the payment of salaries of officers fixed by law:
Section 1: All state officers whose salaries are fixed by law shall be entitled, from and
after the passage of this act, to receive same on the first of each calendar month; provided,
that nothing in this act shall be construed to mean the payment of salaries in advance.
(Comp. Laws, 2088.)
Sec. 2: The controller is hereby authorized and directed to draw his warrant, and the state
treasurer to pay same, in accordance with the first section of this act. (Comp. Laws, 2089.)
By an examination of numerous acts providing for the compensation of our state officers,
it will be found that generally no fund is specified for the payment of their salaries.
By an act approved January 16, 1865 (Stats. 1864-65, p. 97, c. 11), directly after the
admission of Nevada into the Union, entitled An act in relation to the compensation of
members of the legislature and state officers, per diem and mileage were provided for
members of the legislature in section 1.
Section 2 reads: The governor shall receive an annual compensation of four thousand
dollars; the secretary of state, treasurer, and controller, an annual compensation of three
thousand six hundred dollars each; the attorney-general, an annual compensation of two
thousand five hundred dollars; * * * The compensation of the respective state officers, as
provided herein, shall be payable quarterly.
state, treasurer, and controller, an annual compensation of three thousand six hundred dollars
each; the attorney-general, an annual compensation of two thousand five hundred dollars; * *
* The compensation of the respective state officers, as provided herein, shall be payable
quarterly.
Sec. 3. The controller is hereby authorized and required to draw his warrants upon the
state treasurer, in favor of the members of the senate and assembly, upon presentation of
certificates of compensation due, signed by the sergeants-at-arms and the presiding officers of
the two houses respectively, for the amounts named therein. He shall, on the first judicial day
of the months of January, April, July, and October, draw his warrants in favor of the several
state officers for the quarterly compensation due them by virtue of the provisions of section
two of this act.
The act nowhere mentions any fund from which the salaries were to be paid.
The act approved March 3, 1866 (Stats. 1866, p. 205, c. 104), changed the compensation
of the governor and of the lieutenant-governor, and provided that the salary of the latter
should be $3,000, payable monthly, as compensation as warden of the state prison. No fund
was specified.
An act regulating and reducing the salaries and compensation of certain state officers and
attachs of the state government of Nevada, approved February 21, 1881 (Stats. 1881, p. 43,
c. 32), provided for the payment of reduced salaries to various state officers without
mentioning any fund except for the compensation of the surveyor-general and superintendent
of public instruction, which was directed to be paid out of the state school fund.
The same is true of the act approved March 21, 1891 (Stats. 1891, p. 104, c. 90), making
further reductions in the salaries of some of the state officers, and under which the governor,
secretary of state, controller, treasurer, attorney-general, and surveyor-general are now being
paid.
The general appropriation act of the last legislature (Stats. 1907, p. 222, c. 113), under
which the state government is at present being maintained, and which is very similar to
former general appropriation bills, begins with this language: The following sums of money
are hereby appropriated for the purposes hereinafter expressed and for the support of the
government of the State of Nevada for the years 1907 and 190S:
following sums of money are hereby appropriated for the purposes hereinafter expressed and
for the support of the government of the State of Nevada for the years 1907 and 1908:
Sec. 2. For the salary of the governor, eight thousand dollars.
Then follows a list of over eighty other amounts for salaries and sums appropriated for
other purposes, and no fund is specified from which these are to be paid, excepting in six
instances, five of which provide that the salaries of the surveyor-general and the state
superintendent of public instruction and certain expenses in their offices shall be paid out of
the state school fund, and one appropriating $85,000 for the support of the university,
different parts of which amount are directed to be paid from the interest from the
ninety-thousand-acre grant, from the contingent university fund, and from the general fund,
respectively.
It would seem that warrants have generally been drawn and paid and the state government
conducted from its inception on the theory that, when no fund was specified from which
money appropriated by the legislature was to be paid for the state's ordinary expenses, the
general fund was implied and understood. The salaries of the other state officers are being,
and have been, paid under acts which not only do not specify any fund, but which do not
direct their payment to be made out of the state treasury, as section 3, first above quoted, does
for the petitioner.
In People v. Goodykoontz, 22 Colo. 509, 45 Pac. 415, the court said: Two questions are
presented by this record: FirstIs the boiler inspector an officer of one of the departments of
the state, and, as much, has he a preferred claim against the state for his salary? SecondDid
the legislature make such an appropriation to pay relator's salary as made it incumbent upon
the auditor to issue warrants therefor? * * * In the case of Goodykoontz v. Acker, 19 Colo.
360, 35 Pac. 911, it was urged that, when the salary of a public officer is fixed by law,
together with the time and method of payment, this constitutes an appropriation within the
terms of our constitution and statutes. In response to this argument, the court said: Although
the decisions are not uniform, it must be admitted that the trend of the more recent cases
is in support of this argument.' * * * There is no intention to make the salary of the
inspector subject to further legislation to be inferred from anything expressed in the act.
decisions are not uniform, it must be admitted that the trend of the more recent cases is in
support of this argument.' * * * There is no intention to make the salary of the inspector
subject to further legislation to be inferred from anything expressed in the act. It reads: Said
inspector shall receive an annual salary of two thousand five hundred (2,500) dollars and
mileage at ten cents per mile, payable the same as other officers of the state.' And by other
acts then and now in force, other state officers are paid in monthly installments at the end of
each and every month; the auditor being required upon request to draw warrants upon the
state treasurer for such salaries. Nothing is left indefinite and uncertain under these
provisions. * * * The object of the constitutional provision inhibiting the payment of money
from the state treasury, except by an appropriation made by law, is to prohibit expenditures of
the public funds at the mere will and caprice of the crown or those having the funds in
custody, without direct legislative sanction therefor; but no such evil need be feared, where,
as in this case, the salary of the officer is fixed, together with the time and method of his
payment. And we conclude that the act creating the office of state boiler inspector and fixing
his salary, when considered in connection with other statutes, designating the time, mode, and
manner of payment, constitutes a continuous appropriation for such salary, and that no further
legislative sanction is necessary to authorize the proper officers to pay the same. This
conclusion is in accordance with several opinions given by the attorneys-general of this state
to the auditor at different times, and upon which opinions the salaries of several of the state
officers have in the past been paid. (See Report of Attorney-General of Colorado, years 1889
and 1890, pp. 60 and 98; 1891 and 1892, p. 23.) So, likewise, the attorney-general of the State
of Indiana has decided the same question in the same way. (See Report and Opinions of
Attorney-General of Indiana for 1888, p. 155.) This last opinion was rendered upon this state
of facts: The legislature having adjourned without making any appropriations for the salaries
of the officers connected with the state government for the year 1888, the question presented
was whether or not such salaries should be paid by the auditor and treasurer without
further legislation in the nature of special appropriations therefor.
question presented was whether or not such salaries should be paid by the auditor and
treasurer without further legislation in the nature of special appropriations therefor. In an
exhaustive and able opinion, it is held that it was the duty of the auditor to draw warrants for
such salaries, and this conclusion was accepted without being questioned in the courts. See
Report of Attorney-General of Nevada, 1903-04, p. 18.
In State v. Grimes, 7 Wash. 193, 34 Pac. 834, it was said: But, outside of any light which
may be thrown upon the intention of the lawmakers by aid of the title, we are clearly of the
opinion that the language employed in the body of the act is amply sufficient to show that the
intention of the legislature was to appropriate. They have designated the amount, and have
directed that it be paid out of any moneys in the state treasury not otherwise appropriated.
This, we think, is sufficient, and the appropriation contemplated by the constitution is as
plainly indicated as though the formal words there is hereby appropriated' were used. No
arbitrary form of expression is dictated by the constitution, and none should be required.
Many cases have been adjudicated in states having substantially the same constitutional
provision as the one in question, and so far as we have been able to ascertain they have
uniformly been determined in favor of the relator's contention. See State of Louisiana v.
Bordelon, 6 La. Ann. 68; Humbert v. Dunn, 84 Cal. 59, 24 Pac. 111, and cases cited.
In Reynolds v. Taylor, 43 Ala. 427, the petitioner was entitled to a salary of $2,000 as
marshal and ex officio librarian, and the legislature had made provision for payment of only
$1,000 in the general appropriation bill. The court said: It is insisted that the application of
appellee should be denied, because it is not shown that an appropriation had been made to
pay his salary, as marshal, at the sum claimed by him; but that appropriations had been made
to pay him $1,000 salary per annum only, and not $2,000, as claimed. We know that the
general appropriation acts of 1866 and 1867 appropriated $1,000 only for the payment of the
salary of the marshal of the supreme court. This objection is sufficiently answered, by a
decision of this court, made more than thirty years ago.
made more than thirty years ago. In the case of Nichols v. Controller, 4 Stew. & P. (Ala.)
154, it is decided that, in order to authorize the controller to issue his warrant on the treasury,
for the amount of a salary, it is not necessary that there should be a special annual
appropriation by act of the legislature, where there is a general law fixing the amount of the
salary, and prescribing its payment at particular periods.
Proll v. Dunn, 80 Cal. 220, 22 Pac. 143: There is no provision in the constitution
providing or prescribing any particular form of words in which an appropriation shall be
made, except that it shall be made by law. * * * It is claimed that the act does not specify
upon what fund the warrant is to be drawn; and, as the controller is required in every warrant
to specify the fund out of which it is payable, therefore that it is insufficient. Several
authorities are cited which are claimed to support the proposition that the act itself must
specify the fund out of which the money is to be drawn, but we do not think they bear that
construction, in the sense in which it is claimed for it here, and, as to the statutes, not one
appropriation act in fifty designates the fund out of which the money is to be drawn. The
majority of all appropriations are drawn out of a single fund, and that without any designation
in the act as to what fund the money shall be drawn from. * * * Neither the constitution nor
the code requires that an appropriation act shall specify the fund out of which the
appropriation shall be paid, nor is it usual in appropriation acts to do so. If such a
specification is required, the wheels of the government ought long since to have stopped, for
out of many acts which we have examined, including the general appropriation bills for the
current and past years, we find none which make such designation. It has become and is the
custom in this state, of very general, but not universal, application, to use the phrase
appropriated out of any money in the treasury not otherwise appropriated.' But it seems to be
mere custom, not founded upon any constitutional or other legislative requirement. And we
learn from the argument that the controller interprets that phrase to mean out of the general
fund.' We know of no law which authorizes such an interpretation.
know of no law which authorizes such an interpretation. On the contrary, it would seem that
everything authorized by law to be paid out of the state treasury is payable out of the general
fund, if not specially made payable out of some specific fund. * * * The amount named for
the general fund is supposed to be sufficient to meet the aggregate of all the appropriations
made for the year except such as have been expressly made payable out of some special fund.
* * * Appropriations are made, and can only be made, by the legislature. The constitution has
prescribed no set form of words in which it is to be done. All that is required is a clear
expression of the legislative will on the subject. * * * But, says the controller, it has not
designated the fund out of which the appropriation is payable. It did not in any of the former
years; nor has it designated the fund out of which the salaries of any of the officers of the
state, or the expenses of any of the other bureaus or departments of the government, shall be
paid. It has not said that the money is appropriated out of any moneys in the treasury not
otherwise appropriated.' What of it? The legislature can make no appropriation except out of
the treasury.' The remaining words are not only a form not required by law, but usually a
fiction, for at the time of the passage of appropriation bills there is not usually any money in
the treasury in excess of existing appropriations, and whenever the legislature makes a new
appropriation, it is to be assumed that it will provide funds to meet the same. As said by Chief
Justice Field, in McCauley v. Brooks, 16 Cal. 11: Appropriations are made in anticipation of
the receipt of the yearly revenues.' An appropriation is the act of setting apart, or assigning to
a particular use or person, in exclusion of all others; application to a special use or purpose, as
of * * * money to carry out some public object.' (Webster's Dict.) An appropriation of the
money to a specific object would be an authority to the proper officers to pay the money,
because the auditor is authorized to draw his warrant upon an appropriation, and the treasurer
is authorized to pay such warrant if he has appropriated money in the treasury.' (Ristine v.
State, 20 Ind.
State, 20 Ind. 339.) In this act we have a clear, distinct expression of the legislative will
making the appropriation. The words out of any moneys in the treasury not otherwise
appropriated' are not necessary to the expression of that will, or the making of such
appropriation. They are in common use in this state, but nowhere made necessary, and are not
always used.
Humbert v. Dunn, 84 Cal. 57, 24 Pac. 111: The question is whether these provisions of
the act constitute an appropriation' within the meaning of that term as used in section 22,
article IV of the constitution, which provides that no money shall be drawn from the treasury
but in consequence of appropriations made by law.' It is true, the usual formula, there is
hereby appropriated the sum of ....... dollars out of any money in the state treasury not
otherwise appropriated, for the payment of salaries,' is not found in the act, but the intention
of the legislature to provide for the payment of the salaries of the commissioners as they
accrued is clearly manifested in the language used: Each member * * * shall receive a salary
of two thousand four hundred dollars per annum, payable monthly'and it is to be paid out
of any money in the state treasury not otherwise appropriated.' There is nothing in this
language indicating an intention to postpone the payment of the salaries of the commissioners
until the next session of the legislature. They are to be paid monthly, and out of any money
not otherwise appropriated. Not otherwise appropriated' when? Clearly at the time when the
services are performed and the monthly payments become due. While it is customary to use
the words there is hereby appropriated the sum,' in bills appropriating money for the payment
of salary and other expenses of the government, it is not essential to the validity of an
appropriation that those words or any of them, should be used, if the legislature has clearly
designated the amount and the fund out of which it is to be paid. * * * It is claimed that the
act is unconstitutional because it does not specify the amount to be appropriated; that the
amount which may be incurred as expenses is uncertain. So far as the traveling expenses are
concerned, this contention may be good. We are not called upon to decide this question,
however, as the only claim here is for salary, which is fixed by the act of $2,400 per
annum, payable monthly.
decide this question, however, as the only claim here is for salary, which is fixed by the act of
$2,400 per annum, payable monthly. The act provides for the appointment of three engineers
as commissioners, and so far as their salaries are concerned the amount appropriated is fixed
and certain.
Campbell v. Board, 115 Ind. 594, 18 N. E. 33: It is true, as claimed, that no money can be
rightfully drawn from the treasury except in pursuance of an appropriation made by law; but
such an appropriation may be made impliedly, as well as expressly, and in general, as well as
specific, terms. It may also be a continuing or fixed appropriation, as well as one for a
temporary purpose or a limited period. The use of technical words in a statute making an
appropriation is not necessary. There may be an appropriation of public moneys to a given
purpose without in any manner designating the act as an appropriation. It may be said,
generally, that a direction to the proper officer, or officers, to pay money out of the treasury
on a given claim, or class of claims, or for a given object, may, by implication, be held to be
an appropriation of a sufficient amount of money to make the required payments. (Ristine v.
State ex rel., 20 Ind. 328.)
In Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R. A. 370, 22 Am. St. Rep. 625, and in
State v. Burdick, 4 Wyo. 272, 33 Pac. 125, 24 L. R. A. 266, it was held that, if the salary of a
public officer is fixed and the time of payment prescribed by law, no special appropriation is
necessary to authorize the issuing of a warrant for its payment. Other cases supporting the
above and the views expressed are cited in the brief, and in a note beginning at page 638, 22
Am. St. Rep., and in State v. Burdick, supra.
In State v. Westerfield, 23 Nev. 473, 49 Pac. 121, an item in the general appropriation bill
read: For salary of one teacher and one assistant teacher at the state orphans' home, two
thousand four hundred dollars, payable out of the general school fund. The court held that
the general school moneys could not be applied to the orphans' home, and treated the words
payable out of the general school fund as unconstitutional, null, and void, and the
appropriation as if they had been omitted.
had been omitted. It was said in the decision: We hold that the legislature has made a valid
appropriation for the payment of the salary in question, and that the same is payable out of the
general fund in the state treasury the same as the salary of the governor and most of the other
state officers, and the same as other appropriations in which no specific fund is named. * * *
It will be observed that it is not required that the fund out of which the appropriations are to
be made shall be named in the appropriation act.
The petitioner's claim for traveling expenses is viewed in a different light from his demand
for salary. By a perusal of the language in this regard in section 3, it will be observed that not
only no fund is specified, but there is no language directing payment out of the state treasury
such as is contained in the provision for the salary. Section 6 of the act directs that the
commission shall have the right to solicit and receive private contributions, but shall accept
no money or other considerations from any firm or individual in payment of specific services
or favors rendered. Section 8 provides that there may be allowed to such commission by the
commissioners of the several counties a sum not exceeding in amount $250 per year from
each county in the state to be used by the commission for the purpose for which it is
established and for the best interests of the various counties and the state. There are no words
in the entire act stating that the traveling expenses shall be paid from moneys donated by
individuals or collected from the counties, or from the state treasury. It is not necessary to
determine whether there is any implication in regard to a fund or moneys from which these
expenses might be paid, for the fatal objection to their payment is the fact that no maximum
or other amount is specified in connection with them at any place in the act. (Ingram v.
Colgan, 106 Cal. 118, 38 Pac. 315, 39 Pac. 437, 28 L. R. A. 187, 46 Am. St. Rep. 221;
Institute v. Henderson, 18 Colo. 105, 31 Pac. 714, 18 L. R. A. 308.)
As all appropriations must be within the legislative will, it is essential to have the amount
of the appropriation, or the maximum sum from which the expenses could be paid, stated.
stated. This legislative power cannot be delegated nor left to the recipient to command from
the state treasury sums to any unlimited amount for which he might file claims. True, the
exact amount of these expenses cannot be ascertained nor fixed by the legislature when they
have not yet been incurred, but it is usual and necessary to fix a maximum either in the
general appropriation bill or in the act authorizing them, specifying the amount above which
they cannot be allowed.
State v. LaGrave, 23 Nev. 25, 41 Pac. 1075, 62 Am. St. Rep. 764, stripped of dicta, is
applicable to the question here relating to the traveling expenses, but may be distinguished as
not bearing on the one involved pertaining to the salary. There it was said that, under the
existing facts, it was improbable that the provisions of the statute were intended as an
appropriation because the number of military companies that could have received its benefits
was indefinite and uncertain. The act named an amount for each company. The number of
companies which might take advantage of its provisions was uncertain, as was also the
aggregate of the sums which might be drawn from the treasury. The act did not specify any
maximum within which the allowances were to be confined, and no provision was made in
the general appropriation bill. Hence the total money which might be drawn from the state
treasury was not specific, but was not as uncertain as it is here.
The language in section 3 that the members of the commission shall be allowed actual
expenses of travel incurred in traveling upon the official business of the commission is not
accompanied by any limitation of the travel to this state or elsewhere, and is broad enough, if
enforced, without any maximum amount being named by the legislature, to allow the
members of the commission to travel around the world ad libitum on the business of the
commission at the expense of the state. This indefiniteness does not exist in regard to the
salary, which has been fixed by the legislature, and which is certain as to the amount and as to
the person to whom, and the time when, it is to be paid.
As section 3 of the act creating the commission states that "the chairman shall receive as
compensation for his services to be paid out of the state treasury the sum of two
thousand five hundred dollars per annum, payable in equal monthly installments upon the
first day of each and every month," and the act of March S, 1S79, that all officers whose
salaries are fixed by law shall be entitled to receive the same on the first day of each
calendar month, and that the state controller is authorized and directed to draw his
warrant and the state treasurer to pay the same, it is clear that petitioner is entitled to his
salary.
the chairman shall receive as compensation for his services to be paid out of the state
treasury the sum of two thousand five hundred dollars per annum, payable in equal monthly
installments upon the first day of each and every month, and the act of March 8, 1879, that
all officers whose salaries are fixed by law shall be entitled to receive the same on the first
day of each calendar month, and that the state controller is authorized and directed to draw
his warrant and the state treasurer to pay the same, it is clear that petitioner is entitled to his
salary. No other construction would be in harmony with the plain meaning and directions of
these sections. As the legislature has named the amount of the salary and directed the
issuance of warrants and its payment monthly out of the state treasury, any additional act
providing for the accomplishment of these purposes which are already shown to have been
intended is not required and would be an unnecessary repetition.
Section 6 of An act relating to the duties of the state controller, approved February 24,
1866 (Stats. 1866, p. 97, c. 43), directs that no warrant shall be drawn on the treasurer except
there be an unexhausted, specific appropriation by law to meet the same. It is not contended
that the fund is exhausted. It is evident that there is an appropriation by law for the salary of
the chairman of the commission because the amount and time and manner of payment are
specific and certain, but not so in regard to the traveling expenses. If the section relating to
the duties of the controller is in conflict, which is not apparent, it would be controlled by the
later acts fixing the salary of the petitioner as a state officer and directing the controller to
draw his warrants in favor of state officers for their salaries on the first of each month.
Submission of the case was made upon demurrer as upon the merits.
It is directed that a writ of mandate issue commanding the defendant, as state controller, to
draw his warrant upon the state treasurer in favor of the plaintiff for the salary claimed, but
not for the traveling expenses.
____________
29 Nev. 487, 487 (1907) State v. Carson & Colorado Railway Co.
[No. 1720.]
THE STATE OF NEVADA, Respondent, v. CARSON AND COLORADO RAILWAY
COMPANY, a Corporation, et al., Appellants.
1. TaxationIncreasing ValuationStatutes Construed. The act of March 16, 1901, p. 61, c.
50, sec. 1, as amended by Stats. 1903, p. 95, c. 69, requires the state board of county assessors to establish
a valuation of railroads, etc., every January, and provides that the county boards of equalization may only
equalize taxes where a valuation has not been fixed by the state board. Under Comp. Laws, 1084, between
the date of levy of taxes and September 1st the county assessor must ascertain the value, etc., of, and list
and assess, all taxable property. Under section 1081 all property in the state is taxable except, etc. Section
1079 makes every tax a lien against the property assessed, and provides a lien shall attach upon land for
personal taxes upon the day taxes are levied in each year, on all property then in the state, and all other
property whenever it reaches the state. Held, that all property must be assessed which comes into existence
either as additions or otherwise between the first Mondays in March and September of each year, if it has
not been taxed for that year; that, if property assessed by the state board in January enhances in value
because of betterments before the first Monday in September, the assessor should assess the property as
assessed by the board plus the increased valuation, and, if he fails to do so, the county board may equalize
the property at its full cash value, the inhibition upon that board equalizing the valuation of property fixed
by the state board applying only when such property remains insubstantially the same condition and so a
county board could increase the valuation of railroad property, where between the date when the state
board fixed the valuation and the date of the county board's meeting in September part of the road was
changed from narrow to broad gage.
2. SameDefenses. If, in a suit to recover disputed taxes, defendant desires to raise an issue
of excessive valuation, he should prepare his answer under Comp. Laws, 1124, providing what defenses
may be set up in tax suits.
3. SameNoticeDirectory Provision. Comp. Laws, 1098, providing for the publication of
notice of the increased valuation of taxable property by a board of equalization, is merely directory.
4. AppealReviewConclusiveness of Finding. Under the rule that a finding supported by
evidence will not be disturbed, the trial court's findings in a tax suit that the property taxed was
defendant's and that the proper notices were given a railroad company of an increased valuation of its
property is conclusive.
5. TaxationDefensesPleading. Since Comp. Laws, 1124, in defining what defenses may
be made in tax suits, when title to the property is denied, provides that defendant must deny all interest at
the time of assessment, a defense that the property belonged to another when the county board of
equalization increased the valuation was not available where defendant failed to allege that at the time of
assessment the property was not its property.
6. Same. Though the act of February 25, 1893 (Stats. 1893, p. 48, c. 48, sec. 26), providing that the clerks of
boards of equalization shall enter upon the assessment rolls all changes made by the boards, is seemingly in
conflict with the statute directing the auditors to place the changes on the rolls, the act being the latest
expression of the legislative will, it is proper for the clerks to enter the changes.
Esmeralda County; Frank P. Langan, Judge.
Action for disputed taxes by The State of Nevada against The Carson and Colorado
Railway Company, a corporation, and others. From a judgment for plaintiff and an order
denying a new trial, defendants appeal. Affirmed.
George D. Pyne, for Appellant:
I. The county board of equalization shall not have the power to equalize any property
upon which a valuation has been placed by the said board of county assessors. Boards of
equalization are creatures of the statute and have no authority or jurisdiction but that given by
statute, and it must be expressly granted. (State v. Washoe County, 5 Nev. 317; State v. C. P.
R. R. Co., 9 Nev. 79.)
II. The additions and changes in the assessment roll were not entered in the assessment roll
by the person authorized. The changes which were made by the board of equalization were
made by J. G. Atchison, clerk of the county board of equalization, while Comp. Laws, 1098,
says that the changes and additions must be noted by the clerk of the board and should be
reported to the auditor, who will make the changes in the original assessment roll. The auditor
never made any of the changes; they were made by the clerk of the board. Changes made by
other officers than those authorized are illegal. (Ferris v. Coover, 10 Cal. 633; People v.
Reynolds, 28 Cal. 109; Comp. Laws, 1100, 1101.)
III. The law contemplates that the list of property the valuation of which has been added
to on the assessment roll shall not be stated. This notice should have stated the valuation
which was made upon the main track and the side track, and the added valuation of the
rolling stock, none of which amounts are so specified.
track, and the added valuation of the rolling stock, none of which amounts are so specified.
The notice is entirely misleading and does not comply with the law, and defendant could in
no way obtain the knowledge necessary from reading that notice that its valuation had been
raised nearly half a million dollars. The board of equalization has no power to raise the
valuation of land as fixed by the assessor without notice to the owner. The general notice of
the sitting of the board by publication does not amount to the notice required. (Patton v.
Green, 13 Cal. 325.)
IV. If a notice is required to be given personally and by publication, a failure in either is
fatal. (Appeal of Powers, 29 Mich. 304.) Notice is indispensable, prerequisite, and without it
the court has no jurisdiction in the premises. When the law prescribes a particular or specific
manner for making advertisement, or giving notices, no court or officer has a right to
substitute another or different mode. (Lagrone v. Rams, 48 Mo. 538; Yende v. Wheeler, 9
Tex. 421; Pitts v. Burth, 15 Tex. 454; Clarke v. Rowan, 53 Ala. 401.) The advertisement
must contain a particular statement of the amount of taxes added on each lot separately.
(Corporation of Washington v. Pratt, 8 Wheat. 686.)
V. The following provisions of the statute are the only ones bearing directly upon the
question under discussion, and for convenience in referring to them, these excerpts from the
Compiled Laws are given: Section 1078. The board of county commissioners of each county
shall, on or before the first Monday of March of each year, fix the rate of county taxes for
such year, designating the number of cents on each one hundred dollars of property levied for
each fund, and shall levy the state and county taxes upon the taxable property of the county.
(Comp. Laws, 1079, 1084, 1095, 1096, 1098.)
VI. There is nothing in the statute to indicate the date which fixes the assessable status of
the property, except the provisions of section 1078 that the board of county commissioners
of each county shall on or before the first Monday of March of each year, * * * levy the state
and county taxes upon the taxable property of the county, unless it could be said that the
time the lien attaches determines its assessable status.
could be said that the time the lien attaches determines its assessable status. There must be
some time certain when property must be in existence to be assessable for any given fiscal
year. Any other construction of the statute would lead to the taxation of property at full cash
value, though it may only have existed during a small portion of the year, and thus bring the
assessments squarely within the inhibition of section 1, article X of the constitution, which
guarantees a uniform and equal rate of taxation and assessment. (Comp. Laws, 148.)
VII. Section 1 of article IX of the constitution (Comp. Laws, 144) provides that the fiscal
year shall commence on the first day of January in each year. Property not taxable on the day
when the levy is made is not taxable during that year and must be passed to the next year;
and, even if this were not true, property created after the assessment had been made by the
assessor could not be assessed for that fiscal year. In New York the taxable status of property
is determined by its condition on the second Monday in January. (Sisters of St. Francis v.
Mayor, 51 Hun, 355; People v. Wells, 89 N. Y. 847.)
VIII. To say that in Nevada there is no fixed time in the year to which the assessment shall
relate for the purpose of determining what property in the state is subject to taxation for the
current year, would be to concede that in all cases, such as this, there must be a most flagrant
violation of the constitutional guarantee of uniform taxation. Uniformity of taxation implies
uniformity in the mode of assessment as well as in the rate of percentage charged. (Santa
Clara Co. v. S. P. R. R., 18 Fed. 385; R. R. Tax Cases, 13 Fed. 735; Exchange Bank v. Hines,
3 Ohio St. 1; State v. Township of Reedington, 36 N. J. Law, 70; Dundee N. T. I. Co. v.
Parrish, 24 Fed. 197.)
IX. It was held in State v. Eastabrook, 3 Nev. 173, that where property is in this state at
the time the levy is made the owner becomes liable for the tax, although he may remove the
property from the state before the value thereof is assessed. And, vice versa, he could not be
liable for taxes on property created after the levy was made for that portion of the year.
on property created after the levy was made for that portion of the year. The defendant
therefore claims that the trial judge erred in his findings and judgment; that the board of
equalization had no authority to equalize the assessment of defendant and that the increase in
valuation of its property, and thereby the increase in its taxes, is unjust, unreasonable,
excessive, and illegal, and was made contrary to law, and that the valuation as fixed by the
state board of assessors for the year 1905, and as assessed by the assessor, was a fair and
adequate valuation to be fixed upon the property, and their valuation should not have been
disturbed.
C. E. Mack, A. H. Swallow, District Attorney of Esmeralda County, and W. J. Henley, for
Respondent:
I. The question arises, whether appellant can, under any circumstances, demand a reversal
of the judgment in the face of its admission that it has not been prejudiced or injured by the
increase of the valuation of its property. The rule seems to be that it cannot be heard. (Hayne,
New Trial and Appeal, 286; Mitchell v. Bromberger, 2 Nev. 345; Conley v. Chedic, 7 Nev.
336; Todman v. Purdy, 5 Nev. 238; Caples v. C. P. R. R. Co., 6 Nev. 265; Chiatovich v.
Davis, 17 Nev. 133; Re Smith, 4 Nev. 254; Cahill v. Hirschman, 6 Nev. 57; Brown v. Lillie, 6
Nev. 244; Quint v. Ophir M. Co., 4 Nev. 304; Fleeson v. Savage M. Co., 3 Nev. 157.)
II. The law of 1903, if it is to be construed as creating a board of assessors with exclusive
powers, is the unjust achievement of the legislature which enacted it. The constitution, article
X, says: 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 of all property,
real, personal, and possessory. This the statute in question, if so construed, does not do.
Upon the individual county assessor is imposed the duty of assessing all property, excepting
railroads, etc., and to aid the individual assessors in this work they are given the prerogative
of requiring verified statements from owners of taxable property particularly describing and
valuing their holdings. The law goes further; the assessor is not bound by the statements
of owners; he is given credit for some discretion in the matter of assessment, and may
exercise his judgment.
goes further; the assessor is not bound by the statements of owners; he is given credit for
some discretion in the matter of assessment, and may exercise his judgment.
III. When the legislature delegates the power to fix the rate of taxation to officers
unknown to the constitution, and adds to that power to raise or diminish the valuations of the
property of the citizens, it gives an opportunity to plunder the citizen, against which
constitutions are framed, and the courts are bound to restrain. (Tyson v. School Directors, 51
Pa. St. 9; Merford v. Unger, 8 Iowa, 92; Freelan v. Hastings, 10 Allen, 575.)
IV. The notice was given by the clerk of the board of equalization as required by Comp.
Laws, 1098. The notice was sent on September 25th, requiring the Carson and Colorado
Railway Company to appear and show cause on October 2d, a period of seven days. We
maintain that seven days was ample notice to defendant to travel from Carson City, or any
portion of Lyon or Esmeralda Counties through which said road is operated, to Hawthorne,
the county-seat of Esmeralda County. (Comp. Laws, 1098; Hagenmeyer v. Board of
Equalization of Mendocino County, 82 Cal. 214.)
V. If notice was not received, it became incumbent upon appellant to establish that fact.
The increased valuation of appellant's property subsequent to the meeting of the board of
county commissioners was not the acquisition of new property in the sense that it would
except it from the effect of the original assessment. The notice published in the Walker Lake
Bulletin, in accordance with Comp. Laws, 1098, gave the appellant notice of the raise in
valuation. Even if this notice is not as full as it could have been made, it was merely
directory, and, had it been omitted entirely, it would not have relieved the obligation of the
appellant to the state. (State v. Northern Belle, 15 Nev. 385; Hart v. Plum, 14 Cal. 155.)
VI. The corrections in the roll were made by the proper officer, namely, the clerk of the
board of equalization. (Stats. 1893, sec. 26, p. 48.) True, section 1098 provides that the
auditor shall make the changes on the roll. However, Comp. Laws, 1100, provides that the
clerk of the board of equalization shall "enter upon the assessment roll all the changes and
corrections made by the board," hence it will be seen that the last expression of the will
of the legislature was followed in this matter.
tion shall enter upon the assessment roll all the changes and corrections made by the board,
hence it will be seen that the last expression of the will of the legislature was followed in this
matter. The point raised by defendant is in keeping with all other points raised by counsel for
defendant, and shows to what desperate straits defendant is driven in order to beat plaintiff
out of the taxes it justly owes.
VII. Counsel for defendant, in closing his brief, claims the increase in the valuation was
unjust, unreasonable, excessive, and illegal, when, as a matter of fact, the answer of appellant
made only one issue, namely, that defendant sold the property to another corporation after the
assessment was made. No other issues tendered. During the trial defendant admitted the
valuation was not excessive; hence it will be seen that every question raised in appellant's
brief, save the ownership of the property, cannot be reviewed by the supreme court, for the
reason the lower court could give the appellant no relief, except on the one ground. If
appellant had desired to raise the question of excessive valuation, it should have prepared its
answer in accordance with Comp. Laws, 1124.
VIII. Counsel for appellant contends that increased valuation of property cannot be
assessed or equalized. This position is untenable. The statute of Nevada provides that all
property (except certain exemptions) shall be assessed for taxation at its actual cash value.
(Comp. Laws, 1082.) The board of equalization has power and jurisdiction to equalize all
property without qualification or condition. (State v. Meyers, 23 Nev. 274.)
IX. The lien for taxes attaches on the day of levy and continues until the taxes are paid, and
the taxes on personal property is held as a lien against the real estate. Alienation of property
after assessment does not affect tax lien. (Driggers v. Cassady, 71 Ala. 529.)
X. Again, if a party fails to hand in to the assessor his verified list in the first instance,
admittedly he cannot claim the right of a hearing before the board of equalization. (7 Nev.
83.) Why, then, should he be heard to remonstrate against his assessment, when he has been
satisfied of a contemplated raise thereof, and fails to appear at the proper time and place,
as in this case?
templated raise thereof, and fails to appear at the proper time and place, as in this case?
XI. One who has alienated property, but permits it to be subsequently assessed to him,
becomes thereby liable to pay the tax. He must apply to the county commissioners at the
proper time to have the error corrected. (County Commissioners v. Clagett, 31 Md. 213;
Stoddert v. Ward, 31 Md. 565.)
XII. There being no proper judgment roll accompanying the appeal, it should be dismissed
for the reason that the answer is not included in the judgment roll. (Comp. Laws, 3300, 3435.)
George D. Pyne, for Appellant, in reply:
I. It is strange that counsel should assert that the appellant appears in this court as one who
has suffered no injury, even when from the record it appears that appellant has been subjected
to an illegal judgment for the sum of $13,696.20, more than is admitted to be due, and the
further sum of $9,420.43, penalties and costs of suit. It is sheer folly to say that it has suffered
no injury from the decision of the lower court. The obligation for the payment of taxes does
not rest upon contract. Taxes are inevitable, and the law prescribed for the collection of the
same must be strictly enforced. Any failure to pursue the plain provisions of the statute
necessarily results in an injury, and counsel does not cite any case which holds to the
contrary. The complaint sets out that the assessment as made was duly assessed and put upon
the assessment roll, and that the said assessment was by the said board of equalization of the
said Esmeralda County duly equalized as required by law. The answer denies those averments
in the complaint, and thus brings to issue the legality of the assessment of the property and
the equalization by the county board of equalization of Esmeralda County, and raises the
question as a defense which is set out in the statute, that of failing to comply with the
provisions of the act providing for the assessing and equalization of taxes upon property, so
that respondent is in error when it asserts that there was no defense set up in the answer but
that of the title to the property in question.
but that of the title to the property in question. The legality of the assessment and the
equalization was denied, and that was the question in issue.
II. Counsel complains that there is no provision for the hearing before the assessment
becomes final. The taxpayer, as a matter of fact, has notice and may be heard before the
board. There is nothing in the provisions of the statute which intimates that a hearing cannot
be had before the state board of assessors, and, indeed, it is true that such hearings have been
granted at every session of the board. Moreover, the taxpayer has his day in court, which is an
ample guarantee of the equal protection of the laws. The provisions for hearings are not more
adequate in any of the states where a state board of equalization exists, and they exist and
have been declared constitutional in almost every state of the Union.
III. In the pretended quotation from cases cited in the respondent's brief, we discern no
statement of any principle of law affecting the case at bar. The language is not contained in
the case cited, and it appears that counsel's quotation marks have run amuck. Respecting
the contention of appellant that the act in question delegates legislative powers, we need but
say that the authority to assess property is not legislative. We cannot understand by what
mental process counsel arrives at the conclusion that an assessment or valuation fixed by a
collective body is the exercise of a legislative function, while an assessment or valuation
fixed by the individuals of which the body is composed is not the exercise of a legislative
function. Even if counsel's contention was so serious as to demand any discussion, the act
would only violate the constitution in so far as it granted legislative power, and it would still
be effective so far as to authorize the fixing of valuations upon the classes and species of
property specially mentioned in the act. It is to be noted that the act of 1891 (Stats. 1891, p.
61) requires the state board of assessors to fix the valuations on classes of property, etc.,
without designating the species of property upon which the board was authorized to act.
This is an action brought by the State of Nevada, plaintiff, against the Carson and
Colorado Railway Company, et al., defendants, for disputed taxes alleged to be due to
plaintiff on the property of said defendants for the year 1905. In January, 1905, the state board
of county assessors met with the state board of revenue in Carson City, Nevada, in
accordance with an act of the Legislature of the State of Nevada (Stats. 1901, p. 61, c. 50, and
as amended by Stats. 1903, p. 95, c. 69), and fixed the valuation for the purpose of taxation
upon the main line of the Carson and Colorado Railway Company at $3,500 a mile, and the
side track at $1,250 a mile. Thereafter, when the county assessor of Esmeralda County came
to assess the railroad property of defendants, he placed the same valuation thereon as fixed by
the state board of county assessors. When the county board of equalization of Esmeralda
County met as required by law in September, it raised the valuation on the 88 miles of the
146 odd miles of said railroad property of said defendants in Esmeralda County, which had
been broad-gaged, to $8,500 a mile on the main track and $2,500 a mile on the side track,
making a total raise in the valuation as fixed and assessed by the state board of county
assessors and county assessor of $489,150. This raise in valuation by the county board of
equalization on the property of defendants gave rise to the present cause of action, which said
action was duly tried before the District Court of the First Judicial District in and for the
County of Esmeralda, and resulted in a judgment in favor of the State of Nevada against the
defendants for the sum of $36,335.43, taxes and penalties, together with costs of suit.
From an order of the lower court denying a motion for a new trial, and from said judgment
rendered in this case, defendants appeal, alleging that said judgment is erroneous for the
following reasons:
FirstThat because the state board of county assessors fixed the valuation upon said
railroad of defendants at $3,500 a mile for the main line and $1,250 a mile for the side line,
and that the county assessor had assessed the property at the same figure, the county board
of equalization had no authority to add to the valuation as fixed by the state board of
county assessors and as assessed by the county assessor.
same figure, the county board of equalization had no authority to add to the valuation as fixed
by the state board of county assessors and as assessed by the county assessor.
SecondThat no legal notice was given to the Carson and Colorado Railway Company by
the county board of equalization before the increased valuation was added to its lines, nor
were they given an opportunity to appear before said board and show cause why such raise
should not be made.
ThirdThat the changes and additions made in the assessment roll were not made by the
person legally authorized to make them, but were made by the clerk of the board of
equalization, when, as alleged, the statute requires the auditor to make any additions to said
assessment roll after they have been made by the county board of equalization.
FourthThat at the time said increase in the valuation of the property assessed to the
Carson and Colorado Railway Company was made by the county board of equalization the
property did not belong to the Carson and Colorado Railway Company, the same having been
sold to the Nevada and California Railway Company.
FifthThat after the lien attaches upon property in this state, which is on the first Monday
in March, as alleged by counsel for appellants, the enhanced value of property cannot be
assessed; that whatever property is subject to taxation must be in existence on or before the
first Monday in March.
SixthThat the assessment of property in this state fixes on the first Monday in March at
the time of the levy of the tax, and that property must be assessed at the valuation of this date,
and, further, that no property coming into existence or into the state after this date can be
placed on the assessment roll for that year.
SeventhThat the defendants paid to the county treasurer of Esmeralda County the sum
of $14,886.94, the amount due on said valuation of said road as fixed by the state board of
county assessors and county assessor, which said sum was refused by the county treasurer as
payment in full for all taxes due to said plaintiff from said defendants.
It is seriously and urgently contended by counsel for the respondent on this appeal that the
act of our legislature to provide for a more uniform valuation and assessment of property
in this state as approved March 16, 1901 {Stats.
provide for a more uniform valuation and assessment of property in this state as approved
March 16, 1901 (Stats. 1901, p. 61, c. 50), and as amended by the legislature of 1903 in the
statutes of that year (p. 95, c. 69), which said acts created the state board of county assessors
and which limit the powers of the county boards of equalization, are, for many reasons
assigned, unconstitutional, and which contention, if true, asserts respondent's counsel, would
thoroughly justify said board of equalization in adding the increased valuation in question to
the assessment roll. After very careful consideration and study of the law involved in this
case, we have concluded that it will be unnecessary, for reasons hereafter disclosed, to pass
upon or consider the constitutionality of the acts in question.
It appears from the record in this case that the state board of county assessors convened in
January in accordance with law, and placed a valuation on the main track of defendants at
$3,500 a mile and on the side line at $1,250 a mile. At this time of the year, be it
remembered, said Carson and Colorado Railroad was narrow-gaged; that thereafter the county
assessor assessed the said railroad property at the same figure as fixed by the state board of
county assessors. In September, when the county board of equalization convened, they raised
the valuation on the 88 miles of broad-gaged road of defendant to $8,500 on the main track
and $2,500 on the side track. During the intervening period, between the date of the fixing of
the valuation by the state board of county assessors and the date of the convening of the
county board of equalization, 88 miles of the 146 odd miles of the railroad of said defendant
in Esmeralda County were changed into standard, broad-gaged road, which materially
enhanced the value of said property of said defendant; this necessarily being so because of the
fact that in broad-gaging a narrow-gage road new rails of a heavier weight, new ties, new
culverts, and, in fact, all materials used in the replacing of the narrow-gage material are of a
heavier and superior value.
Section 1 of an act of our legislature entitled An act to amend an act entitled An act to
provide for a more uniform valuation and assessment of property in this state,' approved
March 16, 1901," which is the section in question, which is urged by appellant as
inhibiting the county board of equalization from equalizing any property upon which a
valuation has been placed by the state board of county assessors, and which section,
among others, is alleged to be unconstitutional by the respondent, reads as follows:
valuation and assessment of property in this state,' approved March 16, 1901, which is the
section in question, which is urged by appellant as inhibiting the county board of equalization
from equalizing any property upon which a valuation has been placed by the state board of
county assessors, and which section, among others, is alleged to be unconstitutional by the
respondent, reads as follows:
The county assessors of the several counties of this state shall meet for a period not
exceeding ten days in the office of the governor at Carson City, Nevada, on the second
Monday in January of each year, and shall at such meetings establish a valuation through the
state of all railroads and rolling stock of such railroads, of all telegraph and telephone lines, of
all electric-light and power lines, of all cattle and sheep, and upon all other kinds of property
which in the judgment of said assessors can be valued and assessed more uniformly by said
assessors, acting collectively, than by the several county assessors, acting separately;
provided, that in fixing such valuation the location and situation of such property shall be
considered; and, provided further, that nothing herein shall be considered as to impair the
right of the board of equalization of any county to equalize taxes on all property, the valuation
of which has not been fixed at the annual meeting of the county assessors as provided in this
section; but the said county board of equalization shall not have the power to equalize any
property upon which a valuation has been placed by said board of county assessors; provided,
any taxpayer under the provisions of this act shall not be deprived of any remedy or redress in
a court of law relating to the payment of taxes. (Stats. 1903, p. 95, c. 69.)
Section 1084 of the Compiled Laws, pertaining to the assessment of property in Nevada,
provides, among other things, that between the date of the levy of taxes and the first Monday
of September in each year, the county assessor, except when otherwise required by special
enactment, shall ascertain, by diligent inquiry and examination, all property in his county, real
or personal, subject to taxation, and also the names of all persons, corporations, associations,
companies, or firms, owning the same; and he shall then determine the true cash value of all
such property, and he shall then list and assess the same to the person, firm, corporation,
association, or company owning it."
the true cash value of all such property, and he shall then list and assess the same to the
person, firm, corporation, association, or company owning it.
Section 1081 of the Compiled Laws of Nevada provides that all property of every kind
and nature whatsoever, within this state, shall be subject to taxation, excepting certain
property of widows, cemeteries, lodges, churches, and certain lands belonging to the United
States, and other state and municipal authorities, mines and mining claims, under certain
conditions.
Section 1079 of the Compiled Laws reads as follows: Every tax levied, under the
provisions or authority of this act, is hereby made a lien against the property assessed, and a
lien shall attach upon the real property for the tax levied upon the personal property, of the
owner of such real estate, which lien shall attach upon the day on which the taxes are levied
in each year, on all property then in this state, and on all other property whenever it reaches
the state, and shall not be satisfied or removed until all the taxes are paid, or the property has
absolutely vested in the purchaser under a sale for taxes.
It is the theory of the law of taxation and revenue in this state that all tangible real and
personal property shall be assessed each year once at its full cash value. We have found no
authority in this state in conflict with the doctrine laid down in the case of State of Nevada v.
Earl, et al., 1 Nev. 397, wherein this court in referring to this theory said: The true theory of
the statute is that each piece of tangible real or personal property within the state between the
first Monday of May and the first Monday of November, each inclusive, should be taxed once
at its true value, and only once.
Viewing these various provisions of our statutes bearing on taxation and the manner of
assessment, we are of the opinion that there is no material conflict, and that all of these
statutes can readily be reconciled. The railroad property of appellant when assessed by the
state board of county assessors was a narrow-gage road. The assessor of Esmeralda County at
the time he made the assessment of this property assessed said property at the same valuation
placed on it by the state board of county assessors, and in consequence his assessment,
as far as it went, is valid.
on it by the state board of county assessors, and in consequence his assessment, as far as it
went, is valid. If the road had been changed from a narrow-gage to a broad-gage road at the
time he made the assessment, it, or so much of it as had been broad-gaged, under our
construction of the law, should have been assessed, and it would have been his duty to have
assessed the increased valuation in said road, or, in the event it was not broad-gaged at the
time he made his assessment, if the road was broad-gaged any time before he completed his
tax list or assessment roll on or before the second Monday in September and turned same
over to the clerk of the board of county commissioners, he should have added this increased
valuation to his assessment roll. Having failed to do this, as in the present case, the county
board of equalization had the full authority under the law to add to the assessment as made by
the state board of county assessors and the county assessor the increased valuation due to
improvements, betterments, and additions which occurred since the date of the assessment,
and under these circumstances it became the duty of the board of equalization to equalize any
property which had been assessed at an undervaluation of its full cash value. (State v. Meyers,
23 Nev. 274, 46 Pac. 51.)
We think it is a reasonable construction to place upon the amendment of 1903 above
quoted that the inhibition upon the county board of equalization, equalizing the valuation of
property which has been fixed by the state board of county assessors, only applies when such
property remains in substantially the same condition, and that it does not apply to property
which has materially changed in form and value since the meeting of the state board. Any
other construction does violence to the general policy of our revenue laws. The valuation as
placed by the county board of equalization on the said road is not pleaded in the answer of
defendant as excessive, nor is it shown anywhere in the record to be excessive.
If appellant had desired to raise the issue of excessive valuation, it should have prepared
its answer in accordance with section 1124 of our Compiled Laws, which section provides
just what defenses may be set up in tax suits.
just what defenses may be set up in tax suits. Neither is it claimed by the defendant that this
increased valuation made in the property of the railroad was ever subjected to taxation before
during the year 1905, nor that said increased valuation was ever assessed by the state board of
county assessors, and it could not have been, because at said date of assessment by said state
board of county assessors it was a narrow-gage road.
We are of the opinion that all property must be assessed which comes into existence in the
State of Nevada either in the nature of additions, betterments, or improvements, or being new
property coming into the state during the time intervening between the first Monday in March
and the first Monday in September, inclusive, of each year so long as said property has not
before been subjected to taxation for said year; that if property which is assessed in January
by the state board of county assessors enhances in value because of betterments or
improvements, as is the case in the present instance, before the first Monday in September,
the assessor should assess the valuation on said property as assessed by the state board of
county assessors plus any additional or increased valuation which accrues to said property,
and that, if he fails to do so, the county board of equalization are authorized to equalize the
property at its full cash value, to the end that no property in the state may escape taxation
once during the year.
Many, if not the majority, of the states have constitutional or statutory provisions fixing a
day certain in each year with reference to which the valuation of real and personal property
shall be fixed, as, for example, the statute of the State of California, following a similar
constitutional provision of said state, provides: The assessor must, between the first
Mondays of March and July of each year, ascertain, the names of all taxable inhabitants and
all property in his county subject to taxation, except such as is required to be assessed by the
state board of equalization, and must assess such property to the persons by whom it was
owned or claimed, or in whose possession or control it was at 12 o'clock m. of the first
Monday of March, next preceding. Many authorities are cited by counsel for the
appellant, based upon such constitutional or statutory provisions, holding that property
which is not within the state upon the day fixed, or improvements made upon the
property subsequent to such day, is not liable to assessment for that year.
authorities are cited by counsel for the appellant, based upon such constitutional or statutory
provisions, holding that property which is not within the state upon the day fixed, or
improvements made upon the property subsequent to such day, is not liable to assessment for
that year. But, as there is no such constitutional or statutory provision in this state, these
authorities are inapplicable. (State v. Earl, 1 Nev. 397.) All property in the State of Nevada
not exempt from taxation which is in this state on the first Monday in March, and all property
coming into the state not exempt from taxation after the first Monday in March to and
including the first Monday in September, is subject to taxation for that year, and a lien
attaches to all taxable property which is in the state on the first Monday in March, and also
attaches immediately to all taxable property coming into the state after the first Monday in
March to and including the first Monday in September. (Comp. Laws, 1079.)
It is contended by appellant that they did not receive any notice of the intended raise to be
made on the property of appellant, and were given no opportunity to be heard before said
board of equalization in the consideration of the additional valuation added to its property.
The record discloses the following testimony given by Mr. Atchison, clerk of the county
board of equalization: Mr. John G. Atchinson continued in direct examination: (By Judge
Mack): Q. As deputy county clerk and acting for the clerk, at the time the board of
equalization was in session, did you give the defendant any notice of the intended raise by the
board of equalization in the assessment of the defendant? A. Yes, sir. Q. How did you give
that notice? A. There was a printed form which is used for that purpose, and I sent one to the
secretary of the Carson and Colorado Railway Company, at Carson City, and another notice
to San Francisco. Mr. Pyne has showed me a copy of a notice since he has been in town, and
it might be possible we notified the San Francisco office in the name of the Carson and
Colorado Railway Company; but the other notice was sent to the Carson and Colorado
Railway Company, Carson City, to Mr. Yerington. Q. Have you a copy of that notice? A. No,
sir. Q. Can you give, from memory, the substance of the notice? A. I can, except the
printed form. Q. Did you see the printed notice? A. Yes, sir. Q. Did you affix the seal to it?
A. Yes, sir; affixed the seal. Q. To whom did you send the notice? A. I sent the one to
Carson City to E. B. Yerington, secretary of the Carson and Colorado Railway Company.
sir. Q. Can you give, from memory, the substance of the notice? A. I can, except the printed
form. Q. Did you see the printed notice? A. Yes, sir. Q. Did you affix the seal to it? A. Yes,
sir; affixed the seal. Q. To whom did you send the notice? A. I sent the one to Carson City to
E. B. Yerington, secretary of the Carson and Colorado Railway Company. The second was
sent to E. B. Ryan, San Francisco. It is nearly a year ago, and it seems to me I asked Mr.
Henley, at that time, the course to pursue, knowing it was an important case. Q. In the notices
was the fact set forth that the board of equalization was going to make the raise? A. Yes, sir.
Q. Was a time fixed for them to appear and show cause? A. Yes, sir. Q. Was any notice
published in the paper relative to it? A. Not that I know of. It also appears from the
transcript, pages 24, 46, 47, that notice of the added valuation was published in the Walker
Lake Bulletin in accordance with section 1098 of Nevada Compiled Laws, which said section
is merely directory. (State v. Washoe County, 14 Nev. 140; State v. Northern Belle, 15 Nev.
385.) While there may be some conflict in the testimony as to whether or not proper and
regular notices were duly given the defendant, yet we deem the finding of fact by the court
upon this question conclusive, and this in accordance with a well-defined line of authorities
holding that a finding of fact will not be disturbed where there is substantial evidence to
support it.
And, for the same reasons that the previous error is not reversible and an additional legal
reason hereafter given, appellant's contention that at the time of the action of the county board
of equalization when it added the increased valuation complained of the property in question
belonged to the Nevada and California Railroad Company, we deem the finding of fact of the
lower court against appellant's contention conclusive, and it will not be disturbed. Appellant
failed to allege in its answer that at the time of the assessment by the state board of county
assessors or county assessor the property in controversy was not the property of the Carson
and Colorado Railway Company. Section 1124 of our Compiled Laws, in defining what
defenses may be interposed in tax suits when denying title of property, expressly states
that the defendant must deny "all claim, title, or interest in the property, assessed at the
time of the assessment," and in consequence this assignment of error cannot avail it
anything on this appeal.
interposed in tax suits when denying title of property, expressly states that the defendant must
deny all claim, title, or interest in the property, assessed at the time of the assessment, and
in consequence this assignment of error cannot avail it anything on this appeal. The country
board of equalization has no assessorial powers, but equalizes the assessment by adding to or
deducting from the assessment as made by the assessor.
The error assigned by appellant that the changes and corrections made in the assessment
roll by the county board of equalization must be done by the auditor, instead of the clerk of
the board of equalization, is not well taken. Section 26 of an act entitled An act to amend an
act to provide revenue for the support of the government of the State of Nevada and to repeal
certain acts relating thereto, etc., approved February 25, 1893 (Stats. 1893, p. 48, c. 48),
reads: During the session, or within five days after the adjournment of the board of
equalization, its clerk shall enter upon the assessment roll all the changes and corrections
made by the board, and shall immediately deliver said corrected roll, with his certificate
attached, to the county auditor. As this is the latest expression of the legislative will upon
this point, though seemingly in conflict with the statute directing the auditor to place the
changes and alterations on the assessment roll, it was not error for the clerk to have made the
changes and alterations as made by the county board of equalization on said assessment roll.
As it is not claimed that the alterations and corrections by the clerk of said board were
erroneously made, and it affirmatively appearing that they truly represent the alterations and
corrections as made by the county board of equalization, even conceding that the auditor
should have made the alterations and changes, no material harm to appellant could arise, nor
is any claimed to have arisen, from this particular assigned error, and would therefore not be
so serious an error as to warrant a reversal of the judgment on this score.
The assessment and added valuation of said property having been legally made, the county
treasurer was right in refusing to accept $14,886.94 tendered in full payment for the taxes
due on the property of the defendant for the year 1905.
the taxes due on the property of the defendant for the year 1905.
For the foregoing reasons, the judgment of the lower court is affirmed.
____________
29 Nev. 506, 506 (1907) Harris v. Helena Gold Mining Co.
[No. 1729.]
S. H. HARRIS, Appellant, v. HELENA GOLD MINING
COMPANY Respondent.
1. Mines and MineralsClaimsActions to DetermineCommencement. Stats. 1861, c.
12, sec. 20, providing that an action shall be deemed commenced when the complaint has been filed and
summons issued and placed in the hands of one authorized to serve the same, is not controlling on the
question of the time of commencement of an action founded on an adverse claim, authorized by Rev. Stats.
U. S. 2326 (U. S. Comp. Stats. 1901, p. 1430), providing that an adverse action must be commenced within
thirty days after the filing of the adverse claim, because the limitation within which such an action must be
commenced is fixed by the federal statute, but the question as to what constitutes the commencement of an
action is determined by section 22 of the civil practice act (Comp. Laws, 3117), providing that a civil
action shall be commenced by the filing of the complaint and the issuance of a summons, etc.
2. SameSummonsWaiver. Where, in an action under Rev. Stats. U. S. 2326 (U. S.
Comp. Stats. 1901, p. 1430), providing that an adverse action must be commenced within thirty days
after the filing of the adverse claim, the complaint was filed within the thirty days, the filing by defendant
of a general demurrer after the thirty days was a waiver of the issuance of summons under said section 22,
providing that, after the filing of the complaint, a defendant may appear, whether the summons has been
issued, etc., and had the effect of the issuance of summons on the day the complaint was filed, conferring
on the court jurisdiction of the subject-matter and the parties.
Action by S. H. Harris against The Helena Gold Mining Company. From a judgment
sustaining a special demurrer to the complaint, plaintiff appeals. Reversed and remanded.
Samuel Platt, for Appellant:
I. Civil action in the district courts shall be commenced by the filing of a complaint with
the clerk of the court and the issuance of a summons thereon; provided, that after the
filing of the complaint, a defendant in the action may appear, answer, or demur, whether
the summons has been issued or not, and such appearance, answer, or demurrer shall be
deemed a waiver of summons."
the issuance of a summons thereon; provided, that after the filing of the complaint, a
defendant in the action may appear, answer, or demur, whether the summons has been issued
or not, and such appearance, answer, or demurrer shall be deemed a waiver of summons.
(Comp. Laws, 3117.) It is obvious, therefore, that the legislature intended that a civil action
should be deemed commenced upon the filing of the complaint and the issuance of a
summons. An examination of the record in the case at bar discloses the fact that the
complaint was filed and summons issued within the thirty days required by Rev. Stats. U. S.
The action was, therefore, commenced within the time prescribed by law. It would seem from
the record itself, and from the Nevada statute heretofore fully cited, that a further elucidation
of appellant's contention would be both tedious and unnecessary. The Nevada statute and the
record of the case should reverse the lower court instanter. Under the practice of this state
actions are commenced by the filing of a complaint with the clerk of the court and the
issuance of a summons thereon. (Sweeney v. Schultes, 19 Nev. 57.)
II. In the case at bar, the respondent did not make any objection, specially, by plea or
otherwise, until after it had appeared generally by demurrer; and, even if it had, the records
showing that the action was fully, formally, and legally commenced by the filing of the
complaint and issuance of the summons within the time prescribed by law, no motion to
dismiss or plea in abatement could have, or should have, been granted. A plea to the
jurisdiction is allowable at any stage of the proceedings, but in the case at bar there was no
jurisdictional question involved. And such appearance, answer, or demurrer shall be deemed
a waiver of summons. (Comp. Laws, 3117.)
III. In the court below, the respondent relied upon the provisions of the statute of
limitations referring to the commencement of actions. This court has held repeatedly that
foreign corporations may not take advantage by plea of the statute of limitations. The
provisions of the statute, therefore, are as inapplicable here, in so far as respondent may be
concerned, as if no such law were now upon the statute books {Barstow v. Union Con. M.
Co., 10 Nev. 3S6; State v. C. P. R. R. Co.,
books (Barstow v. Union Con. M. Co., 10 Nev. 386; State v. C. P. R. R. Co., 10 Nev. 47;
Robinson v. Imperial S. M. Co., 5 Nev. 44.)
IV. If two statutes on the same subject are mutually repugnant, the later act without any
repealing clause operates, in the absence of express intent to the contrary, as a repeal of the
earlier one, on the obvious principle that the enactment of provisions inconsistent with those
previously existing manifest a clear intent to abolish the old law. (26 Am. & Eng. Ency.
Law, 2d ed., 723, 725, and authorities therein cited; Thorpe v. Schooling, 7 Nev. 15.) The
practice in this state has invariably been to follow the rule prescribed in Comp. Laws, 3117,
which expressly defines and sets forth the necessary steps in the commencement of an action.
To depart from this rule at this late day would not only inflict hardship upon litigants now in
court, but it would be an absolute contravention of the statute and of every opinion of this
honorable court heretofore rendered in construing it.
Robert L. Hubbard, for Respondent:
I. Respondent respectfully submits that the accepted rule throughout the entire United
States is that the mere writing, signing, and sealing of a summons by the clerk of a court does
not constitute its issuance; that a writ is issued only when it comes to the hands of an officer
or other person capable of serving the same. Many of the cases discuss the reasons with great
clearness, and all find the basis for their reasoning in the following illustration: Suppose that
a claimant could file his complaint and have the clerk write out, sign, and seal a summons and
deliver it to him; that he might carry that summons indefinitely without service. The result is
obvious. Hence, the rule that the plaintiff must place the suit beyond his own control by
placing the writ in the hands of an officer or service. A careful examination of the statutes and
decisions of the several states makes it most apparent that the tendency has always been
toward a stricter requirement along these lines. In almost every jurisdiction the courts have
invariably gone beyond the language of the statutes in construing their meaning. That is to
say, when the statute has required that a summons be "issued," the courts have said that
"issued" meant "placed in the hands of the officer for service."
when the statute has required that a summons be issued, the courts have said that issued
meant placed in the hands of the officer for service. And it is a noteworthy fact that many
courts have gone still further and said that actual service, and nothing short of it, was a
requisite to the commencement of a suit, and this, too, when there was no statute making such
requirement. We therefore believe that our contention that, if Comp. Laws, 3117, were the
only law upon the point in this state, a fair construction of it requires that the writ be placed in
the hands of the officer for service in order to constitute the commencement of an action. But
it must not be understood that respondent by the presentation of the foregoing contention at
all concedes, in the slightest degree, that Comp. Laws, 3117, is at all applicable to the case at
bar, for the provisions of Comp. Laws, 3724, and the provisions of the act embracing that
section are, as we believe, too clear to admit of doubt that it was enacted expressly for just
such cases as the one presented in this litigation.
II. Counsel for appellant argues in his brief that the defendant and respondent is a foreign
corporation and cannot be heard to plead the statute of limitations, and cites three Nevada
authorities in support of his position. It will doubtless be a sufficient answer to that
contention to say that in each of the cases cited by counsel for appellant those in charge of the
litigation took the precaution to present the objection to the district court before urging it
before the supreme court. The record will demonstrate the truth of the facts in the case under
consideration, and it will be searched in vain for anything to show that appellant asked the
district court to consider that question. Had counsel for appellant called that matter to the
attention of that court, then respondent would have had an opportunity to meet it, and the
matter might have been presented to this honorable court for review. But since it was not
presented to that court, it is difficult to see how it may be presented to this court, under the
rule of this honorable body as laid down in Moresi v. Smith, 15 Nev. 220; Sias v. Hallock, 14
Nev. 332; Maher v. Swift, 14 Nev. 324; Vietti v. Nesbitt, 24 Nev. 390; McInnis v. McGurn, 24
Nev. 370; Schwartz v. Stock, 26 Nev. 128; Thomas v. Blaisdell, 25 Nev. 223all in perfect
harmony with the rule in all jurisdictions.
25 Nev. 223all in perfect harmony with the rule in all jurisdictions.
Robert L. Hubbard, for Respondent, upon motion to dismiss appeal:
I. Where an appeal is taken from a judgment and several orders, a complete undertaking
on appeal must be executed for each appeal taken. Where an appeal is taken from a judgment
and one or more orders, and only one undertaking in the sum of three hundred dollars is
executed and filed, such an undertaking is not only insufficient, but is wholly void. The
undertaking on appeal must not only be sufficient in amount to equal an aggregate
undertaking in such sum as the number of appeals multiplied by the sum of three hundred
dollars, but must allude and refer specifically to the several appeals and make the undertaking
as severable as the appeals, so that any one of the appeals may be sustained or reversed, and
any or all of the other appeals be independently decided, and the liability of the sureties be
definitely fixed on each appeal. The notice of appeal must particularly specify the order and
judgment appealed from, and where a notice specifies on appeal from an order, ruling, or
judgment not made by the district court, because not presented to it, such an appeal is
ineffectual for any purpose. (Robinson v. Kind, 56 Pac. 863; Home and Loan Association v.
Wilkins, 12 Pac. 799; Corcoran v. Desmond, 11 Pac. 815; Ditch Company v. Batchtold, 41
Pac. 813; Kelly v. Leachman, 51 Pac. 407; Heydenfeldt's Estate, 51 Pac. 543; McCormick v.
Belvin, 31 Pac. 16.) A notice of appeal from a judgment and from all orders made in the
cause is only an appeal from a judgment. It does not sufficiently describe any order. Even
when an appeal is taken from a judgment, orders necessarily affecting it must also be
appealed from in form. (Gates v. Walker, 35 Cal. 289.)
II. Counsel for respondent respectfully submits that an insufficient and an invalid
undertaking are two different things. We concede that an insufficient undertaking might be
supplied by a proper one. But we contend that an invalid one cannot be so supplied. Believing
that these positions admit of no controversy it becomes of first importance to learn
whether the undertaking filed by the appellant is invalid or only insufficient, and we deem
it only necessary to call the court's attention to the fact that the undertaking in this case
recites three distinct appeals, to wit: {1) From a judgment and order rendered against the
plaintiff and in favor of defendant in said action on the 3d day of April, 1907, and from the
whole thereof.
positions admit of no controversy it becomes of first importance to learn whether the
undertaking filed by the appellant is invalid or only insufficient, and we deem it only
necessary to call the court's attention to the fact that the undertaking in this case recites three
distinct appeals, to wit: (1) From a judgment and order rendered against the plaintiff and in
favor of defendant in said action on the 3d day of April, 1907, and from the whole thereof. (2)
From an order and judgment sustaining defendant's demurrer as to the want of jurisdiction of
said court of the parties to said action. (3) From the order and judgment dismissing said
action, made an entered in the minutes of said court the 3d day of April, 1907and then
obligated the sureties as follows: Now, therefore, in consideration of the premises of such
appeal, we, the undersigned, * * * do hereby jointly and severally undertake and promise, on
the part of the appellant, that he, the said appellant, will pay all damages and costs which may
be awarded against him on the appeal, or a dismissal thereof, not exceeding three hundred
dollars, etc. In view of the oft-repeated decisions of this court and the court of California, to
say nothing of the unanimity throughout the Union upon this single question, it is impossible
to understand how a careful practitioner could bring about the necessity of presenting this
question to an appellate court.
This is an action founded upon an adverse claim filed by the appellant in the United States
Land Office at Carson City, Nevada, against respondent's application for a United States
mineral patent. The record discloses that the adverse was filed on the 26th day of September,
1907, and that a complaint was filed in the First Judicial District Court of the State of
Nevada, in and for the County of Esmeralda, on the 26th day of October, 1906. Upon the
same day a summons in due form was made out by the clerk of said court. Upon the 12th of
November, 1907, the said summons was placed in the hands of the sheriff of Ormsby County,
Nevada, and was on said date served on the resident agent of defendant at Carson City. On
November 28, 1907, the defendant appeared in said action and filed a general demurrer to
the sufficiency of said complaint; and, before hearing on said demurrer, on January 9,
1907, the defendant filed its answer.
appeared in said action and filed a general demurrer to the sufficiency of said complaint; and,
before hearing on said demurrer, on January 9, 1907, the defendant filed its answer. On
March 19, 1907, Vermilyea, Edmonds & Stanley, defendant's attorneys, withdrew from the
case, and thereafter Robert L. Hubbard, Esq., was substituted therefor. On March 26, 1907,
defendant, through its attorney, Robert L. Hubbard, Esq., filed another general demurrer to
the sufficiency of the complaint, and on the same date filed a separate special demurrer,
which reads as follows:
Comes now the defendant and demurs to the jurisdiction of the court, and, for ground of
demurrer, states: FirstThe court has no jurisdiction of the subject-matter of this action,
because (a) it appears from the face of the files in this action that plaintiff's suit was not
commenced in this court within thirty days after the filing of plaintiff's adverse claim which
forms the basis of this action in the land office at Carson City, Nevada.
It appears, also, that the answer filed by the defendant on January 9th contains the
following allegation: Further answering, said complaint alleges that plaintiff's adverse claim
in this proceeding was filed in the land office at Carson City, Nevada, on the 26th day of
September, 1907, and that this action, nor any other action, was commenced in this or any
other court within thirty days thereafter to determine the right of possession to said mining
claims, and that the said adverse claim of defendant is under and by virtue of the provision of
section 2326 of the Revised Statutes of the United States (U. S. Comp. Stats. 1901, p. 1430)
barred and waived.
Upon the hearing of the special demurrer to the jurisdiction of the court, the court held that
the action was not instituted within the thirty days required by section 2326 of the Revised
Statutes of the United States, which provides that an adverse action must be commenced in a
court of competent jurisdiction within thirty days after the filing of the adverse claim in the
United States Land Office, and that, therefore, the court had no jurisdiction of the action, and
the same was accordingly dismissed. From the order and judgment of the court sustaining
the special demurrer, this appeal is taken.
judgment of the court sustaining the special demurrer, this appeal is taken.
Upon the hearing of this appeal in this court, respondent interposed a motion to dismiss
the appeal upon grounds, which we believe have been thoroughly disposed of in the case of
Edgecombe v. His Creditors, 19 Nev. 149, 7 Pac. 533, and for this reason the same will be
denied.
The only question presented upon this appeal is as to when an action is deemed
commenced under the statutes of this state. Section 22 of the civil practice act of this state,
relating to the manner of commencing civil actions, reads: Civil action in the district courts
shall be commenced by the filing of a complaint with the clerk of the court, and the issuance
of a summons thereon; provided, that after the filing of the complaint a defendant in the
action may appear, answer, or demur, whether the summons has been issued or not, and such
appearance, answer, or demurrer shall be deemed a waiver of summons. (Comp. Laws,
3117.)
It was held by the lower court, and ably and strenuously urged by counsel for respondent,
that an action is not commenced under the laws of Nevada until the complaint is filed with
the clerk of the court and summons issued thereon and placed in the hands of the sheriff of
the county or other person authorized to serve the same. Respondent also relies on section 20
of an act entitled An act defining the time of commencing civil actions (Stats. 1861, p. 26,
c. 12), which reads as follows: An action shall be deemed to be commenced, within the
meaning of this act, when the complaint has been filed in the proper court, and summons
issued and placed in the hands of the sheriff of the county, or other person authorized to serve
the same. This latter section, we think, is not controlling in the determination of the point
presented for determination, for the reason that the limitation within which this action may be
commenced is fixed by the laws of Congress, and not by the statutes of this state, and that,
therefore, the act of 1861, from which the section last quoted is taken, is inapplicable. The
question as to what constitutes the commencement of an action must be determined by a
construction of the provisions of section 22 of the civil practice act of this state, above
quoted, enacted in 1S69.
the civil practice act of this state, above quoted, enacted in 1869.
It must be borne in mind that the complaint in this case was filed within the thirty days, as
required by the provision of the Revised Statutes of the United States above referred to, and
that thereafter the defendant appeared in said action and filed a general demurrer to the
complaint, without making any reservations whatever relative to the jurisdiction of the court.
This state of facts, we think, brings the present case squarely within the ruling of this court in
the case of Rose v. Richmond M. Co., 17 Nev. 25, 27 Pac. 1105. In the latter case it appeared
that upon the 1st day of September, 1873, the Richmond Mining Company applied to the
United States Land Office at Eureka, Nevada, for a patent to certain mining ground. On the
29th day of the same month the appellant filed his adverse in the said office, and on the 21st
of October following filed a complaint in the District Court of the Sixth Judicial District in
and for the County of Eureka, Nevada, to determine his rights under said adverse. It does not
appear from the record whether or not any summons was ever issued in the case. Upon the 1st
day of November following the Richmond Mining Company appeared in the action and filed
a general demurrer. Thereafter, on the 26th day of the same month, they filed an answer to the
plaintiff's complaint.
From an examination of the record and briefs on file in the Rose-Richmond case, it
appears that the same question was presented in that case as is now presented in this, and, in
order that a better understanding may be had of that portion of the decision which we
hereafter quote, we will first make a brief extract from respondent's and appellant's briefs in
that case. In respondent's brief we find the following: That the action was not commenced in
time must be conceded. The only question is one of waiver. Did the respondent by demurring
waive the failure of appellants to commence the action within thirty days after filing protest?
If so, by virtue of what law or what rule? It is true that the defendants may waive summons by
voluntarily appearing, but if summons is thus waived, is the action to be deemed commenced
at the time the complaint is filed, or at the time the defendant appears?"
commenced at the time the complaint is filed, or at the time the defendant appears? From
appellant's brief in reply in that case we quote the following: But the record shows that
defendant appeared and answered, which, by express terms of the statute (section 22), was a
waiver of the issuance of the summons. This waiver was general and for all purposes, and not
only waived the issuing, but also the time of issuing the summons. It thus appears that the
effect of the filing of the general demurrer in so far as it constituted a waiver, both as to the
issuance and as to the time of issuance of the summons, was clearly presented.
There was also presented in the Rose-Richmond case another question affecting the time
when an action is deemed commenced in law in this state which is not involved in this suit,
but which makes the position taken in this case, we think, all the stronger. Commenting upon
the law applicable to the facts in the Rose-Richmond case above referred to, this court, by
Hawley, J., said: The claim of respondent that this action was not commenced in time is not
well taken. The complaint was filed within thirty days after the filing of the protest as
required by the statute. It is true that the plaintiffs did not pay the docket fee (2 Comp. Laws
[of 1873], 2766, 2767), but it was advanced and paid by the clerk in his next regular monthly
settlement with the county treasurer. The findings are silent as to whether any summons was
issued or not. They show, however, that the defendant regularly appeared and filed a demurrer
and answer to plaintiff's complaint, and did not at any time move to dismiss the action or file
a plea in abatement. From these facts, it is apparent that it cannot now be claimed that the
action was not commenced in time. The defendant by demurring and answering waived the
issuance of summons. (1 Comp. Laws [of 1873], 1085; Iowa M. Co. v. Bonanza M. Co., 16
Nev. 64.) Respondent cannot take advantage of the fact that the clerk, instead of the plaintiffs,
paid the docket fee. The clerk had the right to refuse to put the case upon the docket unless
the docket fee was paid by the plaintiffs. By entering it upon the docket he became personally
responsible, and assumed the payment of the fee,
and, having paid it, as he did, the rights of plaintiffs were preserved. The case stands precisely
the same as if the summons had been issued, and the docket fee paid by plaintiffs, on the day
the complaint was filed.
By reference to section 22 of the civil practice act above quoted, it will be observed that
where defendant appears, either by demurrer or answer, summons is waived, not only in cases
where summons has not issued, but also in cases where summons has issued. In the case of
Rose v. Richmond, supra, the defendant did not appear and demur until two days after the
thirty-day limit had expired for the commencement of actions upon adverse claims. In that
case the record did not disclose whether summons had or had not issued. If no summons had
issued, then the time had run against the action when the demurrer was filed, unless, as was
held in that case, the filing of the demurrer amounted to a waiver of the summons, and, in
effect, was the same as though summons had issued upon the date the complaint was filed.
Section 22 of the civil practice act, making the filing of a demurrer a waiver of summons,
regardless of whether a summons was issued or not, relates back, under the authority quoted,
to the time of the filing of the complaint, and therefore in the present case, the same as in the
Rose-Richmond case, this action stands as though summons was issued on the 26th day of
October, 1907, the date the complaint was filed, and therefore within the thirty days
prescribed by the federal statute. It will be seen from the opinion in the Rose-Richmond case
that, notwithstanding the statutory prerequisite of the payment of a docket fee before an
action is deemed commenced in this state and the fact that the fee in said case was not paid,
this court held in that case that, by the appearance of respondent after the thirty-day limitation
in which an action must be commenced after the filing of an adverse under the Revised
Statutes of the United States, he waived any right of objection upon this point and the fee was
deemed to have been paid on the date of the filing of the complaint.
It is very proper, also, here to note that, although the record in this case shows that the
summons was placed in the hands of the sheriff of Ormsby County on the 12th day of
November, 1907, there is nothing in the record, in the nature of a finding or otherwise,
showing whether it may not have been on the day it was made out placed in the hands of
some other person authorized under the statutes of this state to serve the same.
the hands of the sheriff of Ormsby County on the 12th day of November, 1907, there is
nothing in the record, in the nature of a finding or otherwise, showing whether it may not
have been on the day it was made out placed in the hands of some other person authorized
under the statutes of this state to serve the same. Our statute provides that a summons may be
served by any citizen of the United States over 21 years of age as well as by a sheriff or his
deputy. (Comp. Laws, 3123.) In practice it is well known that a summons may be in two or
more hands for service before service is actually effected.
The filing of the general demurrer in this case operating as a waiver of the issuance of
summons, which had the effect of an issuance of summons on the day the complaint was
filed, the court had jurisdiction both of the subject-matter and the parties, and therefore its
judgment and order dismissing the cause for want of jurisdiction was erroneous.
For the reasons given, the judgment and order are reversed, and the cause remanded for
further proceedings.
____________
29 Nev. 518, 518 (1907) Hand v. Cook
[No. 1700.]
CARLTON H. HAND, A. W. McCUNE, R. C. LUND, and LOUISA FRANK, Respondent,
v. JOHN R. COOK, WILLIAM LLOYD, and JOHN LYNCH, Appellants.
1. Public LandsOffensesStatutes. Rev. Stats. U. S. 452, providing that any officer, clerk,
or employee in the General Land Office, who directly or indirectly purchases, or becomes interested in the
purchase of, any public land, shall be removed from this office, imposes a penalty or forfeiture, and must
be strictly construed.
2. Mines and MineralsPublic Mineral LandsLocation and Acquisition of
ClaimsPersons Entitled to Acquire LandStatutes. Rev. Stats. U. S., 446-449, relating to the
General Land Office, provide for the appointment and duties of the various officers in the General Land
Office, in the Department of the Interior, including a clerk of the surveys, who shall direct and superintend
the making of surveys. Section 452 prohibits the officers, clerks, and employees in the General Land Office
from purchasing the public lands, under penalty of loss of employment. Chapter 1, title 32, The Public
Lands, section 2207, provides for the appointment of a surveyor-general. Chapter 6, section 2319,
provides that all mineral deposits in lands belonging to the United States are open to exploration and
purchase by citizens and those having declared their intention to become citizens. Section 2334 provides
that the surveyor-general may appoint in each land district containing mineral lands as many competent
surveyors as apply to survey mining claims, who shall be employed by the applicants for whom they do
surveying; that the Commissioner of the General Land Office shall have power to establish maximum
charges for surveying and publication of notices. Held, that a government mineral surveyor appointed
under Rev. Stats. U. S., 2334, is not an officer, clerk, or employee in the General Land Office, within Rev.
Stats. U. S., 452, prohibiting such persons from obtaining title to government land, and hence is not
disqualified thereby from locating a mining claim under Rev. Stats. U. S., c. 1, tit. 32, sec. 2207, providing
for such location.
3. Public LandsDecisions of Land Department. While the decisions of the land department
of matter of law are not binding on courts, they should not be overruled unless they are clearly erroneous.
Talbot, C. J., dissenting.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada,
Lincoln County; George S. Brown, Judge.
Action by Carlton H. Hand et al., against John R. Cook, et al., to recover possession of
certain mining lands and damages for ore extracted therefrom by defendants. From a
judgment adverse to the defendants, defendants appeal. Reversed, and new trial granted.
29 Nev. 518, 519 (1907) Hand v. Cook
T. J. Osborne, John R. Cook, William Lynch, and Powers & Marioneaux, for Appellants:
I. We assume the proposition will be universally admitted that every adult male citizen of
the United States is presumably capable of acquiring title to any mineral deposits and lands
mentioned in section 2319. The title to all public lands is in the government in trust for its
citizens. When lands are thrown open for exploration or purchase no citizen of the United
States can with any sort of propriety be constitutionally excluded from the right to purchase.
If one class of citizens might be lawfully deprived of the right to become purchasers of the
public lands, it would logically follow that the right to purchase by a process of exclusion or
elimination might be conferred to some favored portion of the community, or even to some
favored individual. This would be manifestly inconsistent with the equality of the citizens
before the law, to secure which equality is the very end and object of republican institutions
and constitutional government. The right to acquire property is an inherent right of
individuals, and government was not instituted among men to abridge, but to conserve and
protect, this right. Certainly and beyond question it cannot be contended, when property has
been acquired by a nation or people in their aggregate capacity, and when they conclude to
divest their government of such title and vest it in individuals of the nation, that those who
represent them in such a government as we enjoy may restrict the capacity to purchase such
land to a designated class, or, which is identical in effect, deny the right to purchase to a
designated class; and if this cannot be lawfully done, then it inevitably follows that citizens
cannot be excluded because they follow a particular vocation or employment. Regardless of
vocation or employment, all citizens are equal before the law, and equally entitled to its
benefits and privileges. It is ordinarily true that one having lands to sell may offer them to
whom he will, and that he may exclude from his offer any person or class of persons, but,
while this it true of individuals, it does not follow that the same right belongs to the
government of the United States. The public lands are not the absolute property of the
government.
29 Nev. 518, 520 (1907) Hand v. Cook
property of the government. They are the property of the citizens. The government is merely a
trustee for administration. When it sells or offers to sell the public lands, it cannot justly deny
to any citizen the privilege of purchasing. It can only offer the lands for sale by enacting a
law. The law can only be enacted by Congress, the representatives or agents of the citizens.
To exclude any citizen as a lawful purchaser because of his vocation would be to deprive him
of the equal benefit of the law. Such deprivation would be a wholly unwarranted
discrimination; and if we were to admit that Congress has power thus to discriminate between
the citizens, it must be conceded that to do so is so repugnant to the common sense of justice
and so contrary to common right and equality of privilege among the citizens that it will not
be presumed that in any given case Congress intended to deprive any citizen of his right to
become a purchaser of any public lands which have been offered for sale, unless the intention
so to do is by law made so plain that it is beyond dispute.
II. Let us consider for a moment the relation of the parties to each other. The government
is engaged in selling lands. For this purpose it establishes a general land office in Washington
and employs certain persons to discharge the duties thereof. These persons then become the
agents of the government for the sale of its lands. The government is the principal. The
principal says to the agent: You are prohibited from purchasing any of my lands, and if you
do so, you shall be discharged. This is the substance of Rev. Stats. U. S., 452. Would a
purchase of public lands by an employee in the General Land Office have been valid? We
think that the question would turn upon the nature of the duties devolved upon the particular
employee by the law. If he were a janitor performing only the duties of a janitor of the
building in which the General Land Office is located, we have no doubt that a purchase of
public lands by him would have been safe from successful attack by the government. So with
a messenger of the department, or a telephone operator, or a stenographer, or a typewriter, or
any other employee exercising no discretion in the sale of public lands, and performing
merely clerical or manual labor in the land office.
29 Nev. 518, 521 (1907) Hand v. Cook
forming merely clerical or manual labor in the land office. Surely it will at least be admitted
that a purchase by an employee of that office would not be open to question merely because
he was an employee. The nature of his employment and his relation to the government would
be a material inquiry, and might or might not enable the government to void a purchase made
by the employee. Purchases by some would be voidable, purchases by others would not be
voidable, and no purchase by an employee could, upon any admitted principle of law, have
been held to be void. The principle to be applied would have been the well-known rule that
an agent to sell cannot himself become a purchaser. The principle is elementary. But this
principle does not render a purchase by an agent void, but only voidable at the election of the
principal. No third person can complain. The title passes, if the forms of law have been
observed, and strangers cannot call the transaction in question. The act of the agent is an
abuse of authority of which the principal may complain, but it may not be complained of by
any other person. (2 Am. & Eng. Ency. Law, 1076, and authorities cited; Remick v.
Butterfield, 31 N. H. 70, 64 Am. Dec. 316; Jennison v. Hapgood, 19 Am. Dec. 258; Eastern
Bank v. Taylor, 41 Ala. 93; McKinley v. Irvine, 13 Ala. 681.)
III. A person appointed under the provisions of Rev. Stats. U. S., 2334, is not an officer,
clerk, or employee in the General Land Office. We have set out the provisions of the act of
which Rev. Stats. U. S., 452, is a part. It is there seen that the act provides for certain officers,
clerks, and employees, and fixes their duties and salaries. They are all employees in the
General Land Office. That office is in Washington, D. C. To hold that a surveyor appointed to
survey mining claims in the State of Nevada is within the terms of the statute in question, is at
the very outset to do violence to its terms. We must first hold that in must be construed as
meaning the same as of, and then declare that a surveyor to survey mining claims, while not
an employee in the General Land Office, is an employee of that office. But we insist that not
even this apparently innocent judicial alteration of the language of the statute is permissible.
29 Nev. 518, 522 (1907) Hand v. Cook
missible. It is a statute which imposes a forfeiture, and is against the common right of the
citizen, even when construed to forfeit an office or employment, much more if construed to
forfeit the general rights of the citizens to purchase public lands; and being a statute imposing
a forfeiture and being against common right and infringing upon fundamental privileges, it
must, in accordance with the general rule, be construed strictly, and its terms cannot be
extended by implication or construction. We insist that a reading of all the sections of the act
entitled The General Land Office clearly shows what employees of the government are
within the provisions of Rev. Stats. U. S., 452, and where the language of an enactment is
clear and unambiguous, the statute must be held to mean what it clearly expresses, and no
room is left for construction. There is no safer or better settled canon of interpretation.
(Swarts v. Siegel, 117 Fed. 13; Johnson v. S. P. Co., 117 Fed. 462.)
IV. The duties of a mineral surveyor are exclusively professional and in no sense those of
a clerk. He keeps no records or accounts, he registers no act of any superior, he has no
custody of public property or papers. His duties consist, when employed by the owner of a
mining claim, in making for such owner a survey thereof, showing improvements thereon,
with preliminary plat and field notes of survey. When the field notes and preliminary plat of
survey have been filed with the surveyor-general his duty in the premises is ended, except it
be to correct an error made by him. The final plat of survey, with copy thereof and transcript
of field notes, is prepared by the salaried clerks in the surveyor-general's office. Thus it will
be seen that the first duties performed by any clerk in the surveyor-general's office or any
branch of the land department are performed after the mineral surveyor's work has been
completed and he has no part whatever therein. The term clerk has a perfectly definite
meaning which excludes absolutely one employed as a surveyor or in any other purely
professional capacity. Coming now to a consideration of the still more comprehensive term
employee, we find that it also cannot apply to a deputy mineral surveyor. The Century
Dictionary thus defines an employee: "One who works for an employer; a person working
for salary or wages, applied to any one so working, but usually only to clerks, workmen,
laborers, etc., and but rarely to the higher officers of a corporation or government or a
domestic servant."
29 Nev. 518, 523 (1907) Hand v. Cook
defines an employee: One who works for an employer; a person working for salary or wages,
applied to any one so working, but usually only to clerks, workmen, laborers, etc., and but
rarely to the higher officers of a corporation or government or a domestic servant. An
employee is one who is paid wages as distinguished from salary. (People v. Meyers, 33 N. Y.
18.)
V. If a mineral surveyor be held to be an employee of the government, then his own
assistants employed by him upon the survey are also employees of the government and
subject to the prohibition of section 452. The absurd result would follow that nobody could
hold a rod or carry a chain in a mineral survey without forfeiting his right to enter public
lands. A partial reservation of authority or control in certain respects does not transform the
contractor into mere servant. (Wood on Master and Servant, 618; Cooley on Torts, 548;
Wharton on Agency, secs. 19, 20.) Thus the requirements that the survey be made in
conformity to the general rules of the General Land Office and the instructions of the
surveyor-general; that lumber be sawed according to directions given; that a railroad
contractor do his work under the supervision and to the satisfaction of the chief engineer, or a
builder under the supervision of the architect, or a plumber under the supervision of an
official known as the inspector of plumbingnone of these make a contractor a mere
employee of anybody. Where a contractor to grade a street agreed to conform the work to
such further directions as should be given by the street commissioner and one of the city
surveyors (which is as full power and authority as is exerted over a deputy mineral surveyor
by the surveyor-general or any other officer of the land department), the court held: This
clause in the contract does not in any manner affect the case. It does not constitute Foster (the
contractor) any more the immediate agent or servant of the defendant than if the provision
were not inserted in his contract. (Pack v. Mayor of New York, 8 N. Y. 222; Kelley v. Mayor
of New York, 11 N. Y. 432.)
VI. It would seem that there can be no valid objection to this entry as a matter of public
policy, unless it be said that claimant's position as a deputy surveyor gives him an
advantage over the rest of the community in locating claimsin other words, his position
gives him special information as regards the places where valuable minerals are to be
found.
29 Nev. 518, 524 (1907) Hand v. Cook
that claimant's position as a deputy surveyor gives him an advantage over the rest of the
community in locating claimsin other words, his position gives him special information as
regards the places where valuable minerals are to be found. I am not of opinion, however, that
this objection should be sufficient to work a forfeiture of an entry already made, or to prevent
the making of one. This ruling of the land department remained in full force without any
modification until the decision in Floyd v. Montgomery, 26 L. D. 122. In that case a deputy
mineral surveyor was one of several applicants for patents on a mining claim. His interest in
the claim was acquired after location and immediately prior to application for patent. He
made the survey and prepared and filed preliminary report and field notes with report on
improvements. It being urged that he was disqualified by Rev. Stats. U. S., 452, from
obtaining patent, the secretary directed that the deputy mineral surveyor's name be stricken
from the final certificate, and the entry passed to patent in the name of the remaining
applicants, saying on page 136: In Herbert McMicken, et al. (10 L. D. 97, on review 11 L. D.
96), Secretary Noble held that an officer, clerk, or employee in the office of a United States
surveyor-general is an officer, clerk, or employee in the General Land Office within the
meaning of this section. In Muller v. Coleman (18 L. D. 394) Secretary Smith held that a
deputy surveyor is such an employee, and in the Neill case (24 L. D. 393) the present
secretary held that a surveyor-general is within the inhibition so declared. A circular of
similar import was issued September 15, 1890 (11 L. D. 348). From an examination of these
authorities and a consideration of the language and manifest purpose of the section, it seems
clear that its prohibitive provisions embrace a deputy mineral surveyor. In so far as the cases
of State of Nebraska v. Dorrington (2 C. L. L. 647); Dennison v. Willits (11 C. L. O. 261),
and Lock Lode (6 L. D. 105) are in conflict with the views expressed in these latter cases they
are overruled.
VII. Analysis of the statute and of the departmental regulations relative to deputy mineral
surveyors, and of the functions of such persons in relation to the land department and to
those employing them, shows that their status as regards the government of the United
States and the land department is that of mere licensees.
29 Nev. 518, 525 (1907) Hand v. Cook
and to those employing them, shows that their status as regards the government of the United
States and the land department is that of mere licensees. The government furnishes him no
work at any time. It cannot command him to do any work. It cannot accept any service from
him. He is simply authorized to act in behalf of applicants for mineral patents in certain of the
necessary preliminary proceedings before the land department. The position of a mineral
surveyor is entirely similar to that of any attorney practicing before the department. The
function of each is the sameto assist an applicant in his proceedings to obtain title to his
land from the United States. Each, before he is permitted to act, is required to pass a test of
his competency to render such assistance. Each is required by the regulations of the
department, though not by statute, to take an official oath. Each then receives an official
paper authorizing him so to render service to applicants for patent. Each thereupon makes
with the applicant a contract, express or implied, for his compensationa contract with
which the government has nothing to do.
VIII. It may be admitted that the land office has decided that a deputy mineral surveyor is
within the prohibitions of the statute under discussion. But we have shown that the
department has also decided that he is not within the provisions of that section. But if this
court desired to be bound hand and foot by the decisions of the land department, it could not
decide this case upon any precedent made by that office, for to decide this cause it is
necessary to decide not only whether the mineral surveyor is within the provisions of the law,
but, if the court decides that he is, it must then determine the consequences as applied to the
facts of this case. The land department furnishes no precedent for a decision of this point. It is
true that it has rejected an application for patent made by a mineral surveyor, and received
one, too, as we have shown; but the rejection of an application for patent is not a decision that
a location of the ground for which patent is sought is void, so that it may be treated as a
nullity by all the world. It is the duty of the land department to reject the application of an
alien for patent to mineral ground, but we have fully shown in this brief that the
circumstances that an alien may not obtain a patent does not render a location made by
him a nullity; but, on the contrary, his location is valid, and effectually withdraws the
ground from subsequent location by a citizen.
29 Nev. 518, 526 (1907) Hand v. Cook
an alien for patent to mineral ground, but we have fully shown in this brief that the
circumstances that an alien may not obtain a patent does not render a location made by him a
nullity; but, on the contrary, his location is valid, and effectually withdraws the ground from
subsequent location by a citizen. So that the fact that the land department has rejected as well
as received a mineral surveyor to become a patentee of mineral lands, determines nothing as
to the validity or invalidity of a location made by him.
F. R. McNamee, for Respondent:
I. The duties of the commissioner as to surveys are, in the language of the statute, done
through the offices of the surveyor-general, and these offices are branches or integral parts of
the central office, and, as stated by Secretary Noble: I am of the opinion that section 452 of
the Revised Statutes by the substitution of the general words used therein for the special
prohibition contained in prior legislation on the subject was intended to extend the
disqualification to acquire public lands to officers, clerks, and employees in any of the
branches or arms in the public service under the control and supervision of the commissioner
in the discharge of his duties relating to the survey and sale of the public land. Moreover, in
construing a statute, it is proper to take into consideration the mischief it was passed to
obviate. (Sedwick, Stat. and Com. Law, 202.) The object of section 452 was evidently to
remove from the persons designated the temptation and power, by virtue of the opportunities
afforded them by their employment, to perpetrate frauds and obtain an undue advantage in
securing public lands over the general public, by means of their earlier and readier access to
the records relating to the disposal of, and containing valuable information as to, such lands.
Officers, clerks, and employees in the offices of the surveyors-general fall clearly within the
mischief contemplated by the statute, and the reason of the law applies to them with equally
as much force as to those in the central office at Washington. Statutes and regulations of this
kind are based upon grounds of such public policy, and their strict enforcement is essential to
the public service.
29 Nev. 518, 527 (1907) Hand v. Cook
(Muller v. Coleman, 18 L. D. 394; Neill Case, 24 L. D. 393; Frank A. Maxwell, 29 L. D. 76;
Alfred Baltzell, et al., 29 L. D. 333.)
II. In Manuel v. Wulff, 152 U. S. 505, Chief Justice Fuller, speaking for the court, says:
By section 2322 it is provided that when such qualified persons have made discovery of
mineral lands and complied with the law they shall have the exclusive right to possession and
enjoyment of the same. It has, therefore, repeatedly been held that mining claims are property
in the fullest sense of the word, and may be sold, transferred, mortgaged, and inherited
without infringing the title to the United States, and when a location is perfected it has the
effect of a grant by the United States of the right of present and exclusive possession. (Forbes
v. Gracey, 94 U. S. 762; Belk v. Meagher, 104 U. S. 279; Gwillim v. Donnellan, 115 U. S.
45; Noyes v. Mantle, 127 U. S. 348.) So it would seem that the location of a mining claim is
without doubt a purchase of public lands within the spirit and purpose of the prohibition
contained in section 452, as stated in the able opinion filed in this case by the trial judge.
When the object of the prohibition statute is plainly to prevent the doing of the prohibited
thing, an act done in violation of it, according to the great weight of authorities, is an illegal
act from the doing of which no legal right can be acquired. The statute may contain a
prohibition alone, a prohibition and a penalty, or frequently, where there is a penalty and no
prohibition, the prohibition from the imposition of the penalty. Where the statute contains
both a positive prohibition and a penalty for its violation it is considered a very strong ground
for holding that an act in contravention of it is illegal and a right asserted under such act
void. (15 Am. & Eng. Ency. Law, 2d ed. 938, 939, 940, and cases in the reporter's notes.) As
further stated in said opinion, Where a title is asserted by one who has acquired his alleged
title by violation of the prohibition of section 452, it would seem that the plain language of
the section, as well as its manifest object, would require the court to declare the asserted title
to be void. To say that one, who for the public good is expressly prohibited from locating a
mining claim, can nevertheless locate such claim, hold and mine it and extract the
valuable mineral until such time as he desires and be granted a patent from the
government, would be to permit one who has violated the law to enjoy the fruits of his
wrongdoing, and such a result should not follow a disobedience of the law."
29 Nev. 518, 528 (1907) Hand v. Cook
claim, can nevertheless locate such claim, hold and mine it and extract the valuable mineral
until such time as he desires and be granted a patent from the government, would be to permit
one who has violated the law to enjoy the fruits of his wrongdoing, and such a result should
not follow a disobedience of the law.
This is an action brought by the plaintiffs in the court below to recover possession of
certain mining ground known as the Triangle, Last Shange and Bellevue mining
claims, situated in the Ely Mining District, Lincoln County, Nevada, and damages for ore
extracted therefrom by the defendants.
It is admitted by the defendants that the premises in controversy were on the 1st day of
January, 1903, valid and subsisting mining claims, and the property of the plaintiffs and the
defendant Lynch. It was admitted that plaintiffs failed to perform on the ground in
controversy the annual labor required for the year 1903, and that on January 1, 1904, the
defendant Cook, who was then what is commonly called a deputy United States mineral
surveyor, went upon the premises in controversy and located a claim 600 feet wide by 1,500
feet long, and called the same the Yuba East, which embraced the whole of the said
Triangle, Bellevue and Last Shange mining claims.
It was also conceded by the plaintiffs that in the making of the said location all acts were
done and performed which were necessary under the law to effect a valid location of the
ground in controversy, and that the said Yuba East claim was a valid location, and was the
property of the defendant Cook, unless Cook was disqualified from making a valid location
of the premises by virtue of the fact of his authority under the laws of the United States to
survey mining claims, or unless he was disqualified from locating the premises by virtue of
certain alleged contractual relations between him and the plaintiffs, growing out of a certain
lease upon the premises, and certain alleged promises by the defendant Lloyd {claimed to be
a copartner with Cook) to perform the assessment work for the plaintiffs for the year
1903.
29 Nev. 518, 529 (1907) Hand v. Cook
(claimed to be a copartner with Cook) to perform the assessment work for the plaintiffs for
the year 1903.
The questions as to the alleged disqualification of Cook to locate the ground by virtue of
the lease, or by virtue of any contract by his alleged partner Lloyd to perform the assessment
work for the plaintiffs, were decided by the trial court against the contention of the plaintiffs.
All the issues of fact and of law were decided for the defendants, except that the trial court
concluded, as matter of law, that the location of the premises by the appellant John R. Cook
was void, for the reason that at the time of making the location he was a person who then held
a license under the government of the United States to survey mining claims in the State of
Nevada. The only question, therefore, presented upon the appeal is the right of a deputy
United States mineral surveyor to locate a mining claim while holding a commission from the
Surveyor-General of the United States to survey mining claims. It is contended, and has been
so held by certain rulings of the General Land Office, that such deputy United States mineral
surveyor falls within the prohibition contained in section 452 of the Revised Statutes of the
United States. It is therefore further contended that such a surveyor is disqualified from
locating a mining claim, and that any attempted location by him is void.
The section in question reads as follows: Sec. 452. The officers, clerks, and employees in
the General Land Office are prohibited from directly or indirectly purchasing or becoming
interest in the purchase of any of the public land; and any person who violates this section
shall forthwith be removed from his office.
It will be observed that the section in question imposes a penalty or forfeiture or both, and
therefore under all the authorities must be strictly construed. The section quoted is one of the
sixteen sections of the Revised Statutes of the United States, comprising chapter 3, The
General Land Office, and which, in turn, is a part of title 11, The Department of the
Interior. The first section of the chapter, relating to the General Land Office. (rev. Stats. U.
S., 446), provides that there shall be in the Department of the Interior a Commissioner of
the General Land Office, who shall be appointed by the President, etc.
29 Nev. 518, 530 (1907) Hand v. Cook
446), provides that there shall be in the Department of the Interior a Commissioner of the
General Land Office, who shall be appointed by the President, etc.
The next section (section 447) provides that there shall be an officer called the Recorder
of the General Land Office, to be appointed by the President, etc.
The next section (section 448) provides that there shall be in the General Land Office a
principal clerk of the public lands and a principal clerk on private land claims, to be
appointed by the President, and that they shall preform such duties as may be assigned to
them by the Commissioner of the General Land Office.
The next section (section 449) provides that there shall be a principal clerk of the surveys,
who shall be appointed by the President. He shall direct and superintend the making of the
surveys, etc.
The next section provides that the President shall appoint a secretary, whose duty it shall
be to sign patents, etc.
The next section (section 451) authorizes appointment of an assistant secretary. The act
specifies the salary of each of such officers.
Having provided for the appointment of the foregoing officers, the next section (the one
upon which this case turns) prohibits the officers, clerks, and employees in the General Land
Office from purchasing the public lands, under penalty of loss of employment.
Section 2207 of the Revised Statutes of the United States, under title 32, The Public
Lands, c. 1, provides for the appointment by the President of a surveyor-general for certain
states and territories therein mentioned, of which Nevada is one.
Section 2319, Rev. Stats. U. S. (chapter 6 of same title), provides: All valuable mineral
deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby
declared to be free and open to exploration and purchase, and the lands in which they are
found to occupation and purchase, by citizens of the United States and those who have
declared their intention to become such, under regulations prescribed by law, and according
to the local customs or rules of miners in the several mining districts, so far as the same
are applicable and not inconsistent with the laws of the United States."
29 Nev. 518, 531 (1907) Hand v. Cook
or rules of miners in the several mining districts, so far as the same are applicable and not
inconsistent with the laws of the United States.
Section 2334, Rev. Stats. U. S., contained in the last-mentioned chapter, provides: The
Surveyor-General of the United States may appoint in each land district containing mineral
lands as many competent surveyors as shall apply for appointment to survey mining claims.
The expenses of the survey of vein or lode claims, and the survey and subdivision of placer
claims into smaller quantities than one hundred and sixty acres, together with the cost of
publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the
same at the most reasonable rates, and they shall also be at liberty to employ any United
States deputy surveyor to make the survey. The Commissioner of the General Land Office
shall also have power to establish the maximum charges for surveys and publication of
notices under this chapter; and, in case of excessive charges for publication, he may designate
any newspaper published in a land district where mines are situated for the publication of
mining notices in such district, and fix the rates to be charged by such paper; and, to the end
that the commissioner may be fully informed on the subject, each applicant shall file with the
register a sworn statement of all charges and fees paid by such applicant for the publication
and surveys, together with all fees and money paid the register and the receiver of the land
office, which statement shall be transmitted, with the other papers in the case, to the
Commissioner of the General Land Office.
The foregoing, we think, include all such portions of the Revised Statutes of the United
States to which reference need be made in order to reach a solution of the question here
presented. If we understand the position of counsel for respondents, and that taken by the
lower court, as well as by some of the decisions of the land office, section 452 of the Revised
Statutes should be construed to mean substantially as follows: The officers, clerks, and
employees of the General Land Office are disqualified from, directly or indirectly,
purchasing, or becoming interested in the purchase of, any of the public land, and any and
all acts and things done in the way of an attempt to purchase or become interested in the
public land are void.
29 Nev. 518, 532 (1907) Hand v. Cook
the public land, and any and all acts and things done in the way of an attempt to purchase or
become interested in the public land are void. Any person who so attempts to purchase or
become interested in the public land shall forthwith be removed from his office.
It is contended upon the part of the respondents that the foregoing not only embraces
substantially the intention of Congress in enacting the section in question, but that a deputy
United States mineral surveyor, appointed under the provisions of section 2334, supra, is an
officer, clerk, or employee in the General Land Office.
The main positions taken by counsel for appellants upon the legal questions presented in
this case, are as follows: (1) The statute (section 452, Rev. Stats. U. S.) does not affect the
validity of a purchase of public lands by the persons named by it, but the sole consequence of
a purchase by them is a loss of employment. (2) If the validity of a purchase is affected, it is
only affected in the same manner that a purchase by an agent from his principal at common
law was affected, namely, it is merely voidable, and therefore not open to attack by plaintiffs,
but only by the government of the United States. (3) Whatever may be the consequences to
the officers, clerks, or employees in the General Land Office' purchasing the public lands,
they have no application to a person licensed to survey mineral lands under section 2334,
because such person is not an officer, clerk, or employee in the General Land Office or of the
government, or even an employee of the applicant for patent.
Our attention has not been called to the decision of any court where the question here
presented has been passed upon, excepting that of the Supreme Court of Utah in the case of
Lavagnino v. Uhlig, 71 Pac. 1046, in which case the Utah court followed the decisions of the
land department in Floyd v. Montgomery, 26 Land Dec. Dep. Int. 122, and Frank A. Maxwell,
29 Land. Dec. Dep. Int. 76, holding that a deputy mineral surveyor, while holding such
office, is disqualified as a mineral entryman. The Utah case was appealed to the Supreme
Court of the United States, but was there affirmed upon another point, the question here
presented being disposed of in the following manner: "We therefore come at once to a
consideration of that question, and, of course, in doing so assume, for argument's sake,
that the section of the Revised Statutes relied upon and the rules and regulations of the
land department did not prohibit a deputy mineral surveyor from making a location of
mineral land."
29 Nev. 518, 533 (1907) Hand v. Cook
posed of in the following manner: We therefore come at once to a consideration of that
question, and, of course, in doing so assume, for argument's sake, that the section of the
Revised Statutes relied upon and the rules and regulations of the land department did not
prohibit a deputy mineral surveyor from making a location of mineral land. (Lavagnino v.
Uhlig, 198 U. S. 452, 25 Sup. Ct. 716, 49 L. Ed. 1119.)
While the decisions of the land department, on matters of law, are not binding upon the
courts, they should not be overruled except when they are clearly erroneous. (Hastings & Co.
v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112, 33 L. Ed. 363.) In order to arrive at a correct
solution of the questions, it will be advantageous to review the several decisions of the land
department bearing directly upon the point in controversy, but, before doing so, it will be well
to give a brief review of how the section in question came to be incorporated, in its present
form, in the Revised Statutes.
The General Land Office was first established April 25, 1812, by act of Congress entitled:
An act for the establishment of a General Land Office in the Department of the Treasury. (2
Stat. 716.) Section 10 of this act provided as follows: No person appointed to an office
instituted by this act, or employed in any such office, shall directly or indirectly be concerned
in the purchase of any right, title, or interest, in any public land, either in his own right, or in
trust for any other person, or in the name or right of any other person in trust for himself, nor
shall take or receive any fee or emolument for negotiating or transacting the business of the
office. Any person offending in the premises against the prohibitions of this act shall forfeit
and pay one hundred dollars; and upon conviction, shall be removed from office.
Congress on July 4, 1836, passed An act to reorganize the General Land Office. (5 Stat.
107.) This act provided for quite a large number of officers, clerks, and employees, and fixed
their salaries. Section 14 of this act provided that all and every of the officers whose salaries
are hereinbefore provided for, are hereby prohibited from directly or indirectly purchasing, or
in any way becoming interested in the purchase of any of the public land; and in case of a
violation of this section by such officer, and on proof thereof being made to the President
of the United States, such officer so offending shall be forthwith removed from office."
29 Nev. 518, 534 (1907) Hand v. Cook
chase of any of the public land; and in case of a violation of this section by such officer, and
on proof thereof being made to the President of the United States, such officer so offending
shall be forthwith removed from office. We think it quite clear that both the act of April 25,
1812, and that of July 4, 1836, related solely to the General Land Office; i. e. the
governmental bureau in Washington charged with the administration of the public lands, and
the officers and employees in that bureau. By the act of July 4, 1836, which remained in force
until the adoption of the Revised Statutes, it is clear, we think, that the prohibitory provisions
of section 14 did not apply to any persons other than the officers whose salaries were
provided for in that act. Had the language of section 14 been incorporated into the Revised
Statutes, without change of verbiage, it is difficult to conceive of its receiving the
interpretation given by some of the land decisions to the provisions of section 452 of the
Revised Statutes, no matter what that department may have thought of the wisdom of such
construction.
The act of June 27, 1866, An act to provide for the revision and consolidation of the
statute laws of the United States (14 Stat. 74), did not authorize the commission to change
the manifest meaning of a statute. The statute provided that the commission shall bring
together all statutes and parts of statutes which, from similarity of subject, ought to be
brought together, omitting redundant or obsolete enactments, and making such alterations as
may be necessary to reconcile the contradictions, supply the omissions, and amend the
imperfections of the original text.
In the case of Logan v. United States, 144 U. S. 302, 12 Sup. Ct. 617, 36 L. Ed. 429, it was
held that it is not to be inferred that Congress, in revising the statutes, intended to change
their effect, unless an intention to do so is clearly expressed. To the same effect, see the cases
of United States v. Ryder, 110 U. S. 739, 4 Sup. Ct. 196, 28 L. Ed. 308; McDonald v. Hovey,
110 U. S. 629, 4 Sup. Ct. 142, 28 L. Ed. 239; Stewart v. Kahn, 11 Wall. (U. S.) 502, 20 L.
Ed. 176; Murdock v. City of Memphis, 20 Wall. (U. S.) 617, 22 L. Ed. 429; Smyth v. Fiske, 23
Wall. (U. S.) 382, 23 L. Ed. 47.
29 Nev. 518, 535 (1907) Hand v. Cook
It has also been held by the same court upon numerous occasions that in construing
Revised Statutes, where a doubt arises, it is admissible to recur to its connection in the act of
which it was originally a part. (Doyle v. Wisconsin, 94 U. S. 51, 24 L. Ed. 64; United States v.
Hirsch, 100 U. S. 35, 25 L. Ed. 539; United States v. Bowen, 100 U. S. 513, 25 L. Ed. 631;
Meyer v. Car Co., 102 U. S. 11, 26 L. Ed. 59; Bate Refrigerating Co. v. Sulzberger, 157 U. S.
39, 15 Sup. Ct. 508, 39 L. Ed. 601.)
The same court has also held that reference to the original statutes cannot be had to control
Revised Statutes when the meaning thereof is plain. (United States v. Bowen, supra; Arthur
v. Dodge, 101 U. S. 36, 25 L. Ed. 948; Vietor v. Arthur, 104 U. S. 499, 26 L. Ed. 633;
Deffeback v. Hawke, 115 U. S. 402, 6 Sup. Ct. 95, 29 L. Ed. 423.)
Can it be said that it is plain from the provisions of section 452 of the Revised Statutes that
the provisions thereof were intended to apply not only to the officers, clerks, and employees
in the General Land Office at Washington, but also to apply to the officers, clerks, and
employees of the offices of the various United States surveyors-general in the various states
and territories? And, if it cannot be so said, will such a construction be aided by a reference to
section 14 of the act of 1836, supra? We think it quite clear that, if it is a proper case for
recurrence to the latter act to construe the section in question, so broad an interpretation
cannot be made.
The land office has rendered a number of decisions construing the provisions of section
452, supra, some of which have direct reference to its application to deputy mineral surveyors
appointed under the provisions of Rev. Stats., 2334, supra.
In the case of Grandy v. Bedell, 2 Land. Dec. Dep. Int. 314 (1883), Mr. Secretary Teller,
quoting section 452, Rev. Stats., says (page 315): It will be observed that the section quoted,
and this is the only statutory provision bearing on the subject, does not extend to clerks in the
district offices, but by its terms is confined to those employed in the General Land Office.
Your office has, however, by rule, extended the operation of this statute so as to include
clerks in the local offices; and this department held in the case of State of Nebraska v.
Dorrington, 2 Copp, Land Laws, 1SS2, p.
29 Nev. 518, 536 (1907) Hand v. Cook
the operation of this statute so as to include clerks in the local offices; and this department
held in the case of State of Nebraska v. Dorrington, 2 Copp, Land Laws, 1882, p. 647, the
defendant being at the time of making his timber culture entry a clerk in a local land office,
that such fact was sufficient ground for the cancelation of the entry. The claimant, Bedell,
was a receiver's clerk in the local land office at date of making the timber culture entry in
contest, but at date of initiation of contest by Grandy he had resigned his position. The
secretary therefore held: Taking these facts into consideration, and the further one that he
was not by express provision of law incompetent to make the entry, I am of the opinion that it
should be permitted to stand. The instructions issued by Commissioner McFarland on
August 28, 1883, and reported in 2 Land Dec. Dep. Int. 313, indicate that in the opinion of the
land department there was no statutory inhibition against entries of public land by land
department employees outside of those in the General Land Office. The instructions referred
to are as follows: Gentlemen, I am in receipt of the receiver's letter of July 7, 1883, in which
the following question is submitted to this office: Is it admissible for a register or receiver or
special agent or clerk to make a timber culture entry in a district other than the one in which
he is located? I reply that I think such entry, excepting as to special agents, is admissible. The
officer or clerk making such entry should state in his affidavit the particular position he holds,
that the entry may be intelligently dealt with.
Subsequently, in 1890, the land department appears to have modified views above
expressed, holding in the case of Herbert McMicken, 10 Land Dec. Dep. Int. 97, and 11 Land
Dec. Dep. Int. 96, that a clerk or employee in the office of a United States surveyor-general
was clerk or employee in the General Land Office, and hence fell within the inhibition of
section 452, Rev. Stats.
Under the decision in McMicken's case, supra, a general circular was issued by the land
department, dated September 15, 1890, and reported in 11 Land Dec. Dep. Int. 348, stating
that: In accordance with said decision, all officers, clerks, and employees in the offices of
the surveyors-general, the local land offices, and the General Land Offices, or any
persons, wherever located employed under the supervision of the Commissioner of the
General Land Office, are, during such employment, prohibited from entering, or becoming
interested, directly or indirectly, in any of the public lands of the United States."
29 Nev. 518, 537 (1907) Hand v. Cook
clerks, and employees in the offices of the surveyors-general, the local land offices, and the
General Land Offices, or any persons, wherever located employed under the supervision of
the Commissioner of the General Land Office, are, during such employment, prohibited from
entering, or becoming interested, directly or indirectly, in any of the public lands of the
United States.
The above rule has since been generally adhered to by the department, although in the case
of Winans v. Beidler, 15 Land. Dec. Dep. Int. 266, decided in 1892, the land department
appears to have again modified its views as to the construction of section 452, Rev. Stats.,
holding that Winans, who was employed as a copyist in the General Land Office at
Washington, could perfect a homestead entry made shortly before his appointment to such
position.
The first reported case in which the land department passed upon the right of a deputy
mineral surveyor to make entry of lands is Denison v. Willits, 11 Copp, Land Owner, 261
(1884), in which Commissioner McFarland said: There seems to be no valid objection as to
the right of a deputy surveyor to make a mineral entry, in which case he cannot act in any
other capacity than that of claimant.
The next case in which the question arose was that of Lock Lode, 6 Land. Dec. Dep. Int.
105, wherein the secretary said: But one question is in this case, viz., the right of a deputy
mineral surveyor to make a mineral entry in the district for which he is appointed. He then
quotes section 2319, Rev. Stats., declaring all mineral deposits on public lands to be open to
exploration and purchase, and adds: Section 2325 of the United States Revised Statutes
provides that any one authorized to locate a mineral claim may procure a patent for the same
upon compliance with certain requirements and conditions therein specified. Deputy
surveyors are appointed by the surveyor-general of each surveying district, under and by
virtue of the authority conferred in section 2334 of United States Revised Statutes. Under this
section, the surveyors-general of the several districts appoint as many competent deputy
surveyors for mining claims as may apply to them for such appointment, and give bond in the
sum of $10,000 for the faithful performance of their duties.
29 Nev. 518, 538 (1907) Hand v. Cook
for the faithful performance of their duties. A mineral claimant then has the option of
employing any one of said deputies to do his surveying with whom he can make a suitable
contract; it being always understood that the claimant is to bear all the expenses of notices,
surveys, etc. It was ruled by your office, February 6, 1884, in the case of Denison v. Willits,
11 Copp, Land Owner, 261, the only time the question has ever been raised, so far as can be
ascertained, that a deputy mineral surveyor may make mineral land entries in his own district,
but in that event he cannot act in any other capacity than that of claimant. It would seem that
there can be no valid objection to this entry as a matter of public policy, unless it be said that
claimant's position as a deputy surveyor gives him an advantage over the rest of the
community in locating claims; in other words, his position gives him special information as
regards the places where valuable minerals are to be found. I am not of opinion, however, that
this objection should be sufficient to work a forfeiture of an entry already made, or to prevent
the making of one.
This ruling of the land department remained in full force without any modification until
the decision in Floyd v. Montgomery, supra. In that case a deputy mineral surveyor was one
of seven applicants for patents on a mining claim. His interest in the claim was acquired after
location and immediately prior to application for patent. He made the survey, and prepared
and filed preliminary report and field notes with report on improvements. It being urged that
he was disqualified by section 452, Rev. Stats., from obtaining patent, the secretary directed
that the deputy mineral surveyor's name be stricken from the final certificate, and the entry
passed to patent in the name of the remaining applicants, saying (page 136): In Herbert
McMicken, et al., 10 Land Dec. Dept. Int. 97, on review 11 Land Dec. Dep. Int. 96, Secretary
Noble held that an officer, clerk, or employee in the office of a United States surveyor-general
is an officer, clerk, or employee in the General Land Office within the meaning of his section.
In Muller v. Coleman, 18 Land Dec. Dep. Int. 394, Secretary Smith held that a deputy
surveyor is such employee, and in the Neill case, 24 Land Dec.
29 Nev. 518, 539 (1907) Hand v. Cook
is such employee, and in the Neill case, 24 Land Dec. Dep. Int. 393, the present secretary held
that a surveyor-general is within the inhibition so declared. A circular of similar import was
issued September 15, 1890 (11 Land Dec. Dep. Int. 348). From an examination of these
authorities and a consideration of the language and manifest purpose of the section, it seems
clear that its prohibitive provisions embrace a deputy mineral surveyor. In so far as the cases
of State of Nebraska v. Dorrington, 2 Copp, Land Laws, 647, Denison v. Willits, 11 Copp,
Land Owner, 261, and Lock Lode, 6 Land Dec. Dep. Int. 105, are in conflict with the views
expressed in these later cases, they are overruled.
In Frank A. Maxwell, 29 Land Dec. Dep. Int. 76, and Alfred Baltzell, Id. 333, the
department again ruled that a deputy mineral surveyor was disqualified by the statute from
making entry, basing said decision solely on Floyd v. Montgomery, supra.
The next and last ruling of the department on this question was in the case of W. H.
Leffingwell, 30 Land Dec. Dep. Int. 139 (1900), holding that a deputy mineral surveyor who
has no interest, real or contingent, in a mining claim at the date of the survey thereof by him,
nor at the date of the application for patent thereto, but who subsequently makes entry
thereof, does not come within the spirit of section 452 of the Revised Statutes, prohibiting
employees of the General Land Office from purchasing or becoming interested in the
purchase of the public lands; the secretary saying: Without at the present time considering
the correctness of the conclusions arrived at in the case of Floyd, et al., v. Montgomery, et al.
26 Land Dec. Dep. Int. 122, 136, and similar cases in so far as it was therein held that the
prohibitive provisions of said section embrace a deputy mineral surveyor, it is sufficient to
say that the facts in this case, as disclosed by the record, are materially different from those
stated in the cases referred to. Independently of the statute, it would be within the power of
the land department in making regulations for the survey of mining claims to provide against
the survey thereof by one interested in the claim; the reason therefor being manifest. In the
case under consideration, Leffingwell had no interest, real or contingent, in the claim
involved at the date of the survey thereof by him, or at the date of the application for
patent thereto, and, under these circumstances, it is not believed that he is within the
spirit of the statute or circular above quoted."
29 Nev. 518, 540 (1907) Hand v. Cook
Leffingwell had no interest, real or contingent, in the claim involved at the date of the survey
thereof by him, or at the date of the application for patent thereto, and, under these
circumstances, it is not believed that he is within the spirit of the statute or circular above
quoted.
It thus appears that until 1898 no doubt was expressed by the land department as to the
right of a deputy mineral surveyor to make a mineral entry; the department in two decisions
expressly ruling that he had such right. In Floyd v. Montgomery, supra, the department
reversed its previous decisions, and held that a mineral surveyor was prohibited by the statute
from making entry. While in the Leffingwell case, supra, the secretary did not express an
opinion as to the correctness of the rulings of the department in the case of Floyd v.
Montgomery, and other similar cases, there is a strong inference, at least, that the rulings in
those cases are not so clearly correct that the question they determine may not be the subject
of further consideration by the department.
Commenting upon these various decisions of the land department, Lindley, in his work on
Mines, says: The land department at one time held that they (deputy mineral surveyors) were
not prohibited from making mineral entries within the district for which they are appointed.
By subsequent rulings it was determined that they came within the inhibition of section 452
of the Revised Statutes, and were prohibited from entering or becoming interested in any of
the public lands of the United States. The latest expression by the department on the subject
has a tendency to suggest the incorrectness of these later rulings. The existing land
department regulations seem to limit the disqualification of the deputy surveyor to the making
of surveys of mineral claims in which he holds an interest, thus intimating that he may
lawfully locate and hold a claim, but could not survey it for a patent. (Lindley on Mines, 2d
ed. 661.)
A careful examination of the points presented in this case convinces us that the rulings of
the land department, in so far as they hold or infer that a deputy mineral surveyor is
disqualified to locate a mining claim because of the provisions of Revised Statutes, sec. 452,
are erroneous. In the view we take of this case, it is not necessary to pass upon all the legal
questions presented in the able argument of counsel, for the position, we think, is well
taken that a deputy mineral surveyor is not an officer, clerk, or employee in the General
Land Office, even if we should consider that the office of United States surveyor-general
is a part of the General Land Office and subject to the inhibition of section 452, Rev.
Stats., supra, a question we do not pass upon.
Deputy mineral surveyors are appointed without limit, and for no particular time, by the
Surveyor-General of the United States, under the provisions of section 2324, Rev. Stats.,
supra.
29 Nev. 518, 541 (1907) Hand v. Cook
view we take of this case, it is not necessary to pass upon all the legal questions presented in
the able argument of counsel, for the position, we think, is well taken that a deputy mineral
surveyor is not an officer, clerk, or employee in the General Land Office, even if we should
consider that the office of United States surveyor-general is a part of the General Land Office
and subject to the inhibition of section 452, Rev. Stats., supra, a question we do not pass
upon.
Deputy mineral surveyors are appointed without limit, and for no particular time, by the
Surveyor-General of the United States, under the provisions of section 2324, Rev. Stats.,
supra. They are not required to keep an office at any particular place, or at all. They do not
remain under the direction or supervision of the surveyor-general. They are not obliged to
perform any service, either for the government or any individual. They are simply persons
who have been designated as having the requisite qualifications to make a proper survey of
mining claims. If they perform any services at all, it must be as a matter of private contract
between themselves and the mining claimant. They receive no salary or compensation
whatever from the government; nor does the government supply them with instruments or
assistants while engaged in making a mineral survey. They have no access to the official
records of the surveyor-general's office, other than that afforded any private citizen. A deputy
mineral surveyor may never make a survey after his appointment, or he may make fifty or
more in a year. The duties of a mineral surveyor are exclusively professional, and in no sense
those of a clerk. He keeps no records or accounts, he registers no act of any superior. He has
no custody of public property or papers. His duties consist, when employed by the owner of a
mining claim, in making for such owner a survey thereof, showing improvements thereon,
with preliminary plat and field notes of survey. When the field notes and preliminary plat of
survey have been filed with the surveyor-general, his duty in the premises is ended, except it
be to correct an error made by him.
In the leading case of United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, the court, by
Mr. Justice Miller, laid down the definition of a federal officer, saying {page 509 of 99 U.
S.): "The constitution for purposes of appointment very clearly divides all its officers into
two classes.
29 Nev. 518, 542 (1907) Hand v. Cook
the definition of a federal officer, saying (page 509 of 99 U. S.): The constitution for
purposes of appointment very clearly divides all its officers into two classes. The primary
class requires a nomination by the President and confirmation by the senate. But foreseeing
that when offices become numerous, and sudden removals necessary, this mode might be
inconvenient, it was provided that in regard to officers inferior to those specially mentioned
Congress might by law vest their appointment in the President alone, in the courts of law, or
in the heads of departments. That all persons who can be said to hold an office under the
government about to be established under the constitution were intended to be included
within one or the other of these modes of appointment there can be but little doubt.
In that case the defendant, Germaine, who was a civil surgeon appointed by the
commissioner of pensions, under section 4777, Rev. Stat., was indicted for extortion as an
officer of the United States, but the court held that he was not such officer, saying further
(page 511): If we look to the nature of defendant's employment, we think it equally clear that
he is not an officer. In that case (United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830), the
court said the term embraces the ideas of tenure, duration, emolument, and duties, and that
the latter were continuing and permanent, not occasional or temporary. In the case before us,
the duties are not continuing and permanent, and they are occasional and intermittent. The
surgeon is only to act when called on by the commissioner of pensions in some special case,
as when some pensioner or claimant of a pension presents himself for examination. He may
make fifty of these examinations in a year, or none. He is required to keep no place of
business for the public use. He gives no bond, and takes no oath, unless by some order of the
commissioner of pensions of which we are not advised. No regular appropriation is made to
pay his compensation, which is two dollars for every certificate of examination, but it is paid
out of money appropriated for paying pensions in his district, under regulations to be
prescribed by the commissioner. He is but an agent of the commissioner, appointed by him,
and removable by him at his pleasure, to procure information needed to aid in the
performance of his own official duties.
29 Nev. 518, 543 (1907) Hand v. Cook
pleasure, to procure information needed to aid in the performance of his own official duties.
He may appoint one or a dozen persons to do the same thing. The compensation may amount
to five dollars or five hundred dollars per annum. There is no penalty for his absence from
duty or refusal to perform, except his loss of the fee in the given case. If Congress had passed
a law requiring the commissioner to appoint a man to furnish each agency with fuel at a price
per ton fixed by law high enough to secure the delivery of the coal, he would have as much
claim to be an officer of the United States as the surgeons appointed under this statute.
Again, in United States v. Smith, 124 U. S. 525, 532, 8 Sup. Ct. 595, 31 L. Ed. 534, the
court said: An officer of the United States can only be appointed by the President, by and
with the advice and consent of the senate, or by a court of law or the head of a department. A
person in the service of the government who does not derive his position from one of these
sources is not an officer of the United States in the sense of the constitution. This subject was
considered and determined in United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, and in
the recent case of United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463. What
we have here said is but a repetition of what was there authoritatively declared.
In the case of Louisville R. R. Co. v. Wilson, 138 U. S. 501, 505, 11 Sup. Ct. 405, 34 L.
Ed. 1023, the court, by Mr. Justice Brewer, said: The terms officers' and employees' both
alike refer to those in regular and continual service. Within the ordinary acceptation of the
terms, one who is engaged to render services in a particular transaction is neither an officer
nor an employee. They imply continuity of service, and exclude those employed for a special
and single transaction. An attorney of an individual retained for a single suit, is not his
employee. It is true he has engaged to render services; but his engagement is rather that of a
contractor than of an employee.
The same rule was laid down by the court in Auffmordt v. Hedden, 137 U. S. 310, 11 Sup.
Ct. 103, 34 L. Ed. 674, in which the court, passing upon the status of a merchant appraiser
appointed or selected by the collector of customs under authority of section 2930, Rev.
Stats., and whose compensation was payable by the importer, said {page 326 of 137 U. S.,
and page 107 of 11 Sup. Ct. [34 L. Ed. 674]): "The merchant appraiser is an expert,
selected as an emergency arises, upon the request of the importer for a reappraisal.
29 Nev. 518, 544 (1907) Hand v. Cook
appointed or selected by the collector of customs under authority of section 2930, Rev. Stats.,
and whose compensation was payable by the importer, said (page 326 of 137 U. S., and page
107 of 11 Sup. Ct. [34 L. Ed. 674]): The merchant appraiser is an expert, selected as an
emergency arises, upon the request of the importer for a reappraisal. His appointment is not
one to be classified under the civil service law. He is not to be appointed on a competitive
examination, nor does he fall within the provisions of the civil service law. He is not a clerk'
nor an agent' nor a person employed,' in the customs department, within the meaning of
section 6 of the civil service act; nor is he an officer of the United States, required to be
appointed by the President, or a court of law, or the head of a department. He is an expert
selected as such. Section 2930 requires that he shall be a discreet and experienced merchant,
familiar with the character and value of the goods in question.' He is selected for the special
case. He has no general functions, nor any employment which has any duration as to time, or
which extends over any case further than as he is selected to act in that particular case. He is
executive agent, as an expert assistant to aid in ascertaining the value of the goods, selected
for the particular case on the request of the importer, and selected for his special knowledge
in regard to the character and value of the particular goods in question. He has no claim or
right to be designated, or to act except as he may be designated.
See, also, the following authorities: People es rel. Sims v. Fire Commissioners, 73 N. Y.
437; People v. Board of Police, 75 N. Y. 38; Commonwealth v. Fitler, 147 Pa. 288, 23 Atl.
568, 15 L. R. A. 205; Mulholland v. Wood, 166 Pa. 486, 31 Atl. 248; State v. Mason, 61 Ohio
St. 62, 55 N. E. 167; Attorney-General v. McCaughey, 21 R. I. 341, 43 Atl. 646; State v.
Emerson, 72 Me. 455; Campfield v. Lang, 25 Fed. 128; Frick Co. v. Norfolk Co., 86 Fed.
738, 32 C. C. A. 31; United States v. McCrory, 91 Fed. 295, 93 C. C. A. 515; In re
Grunwold, 99 Fed. 705; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534;
Vane v. Newcombe, 132 U. S. 233, 10 Sup. Ct. 60, 33 L. Ed. 310.
29 Nev. 518, 545 (1907) Hand v. Cook
The defendant, John R. Cook, for the reasons given, was not disqualified from locating the
Yuba East Lode mining claim, described in the complaint, on the 1st day of January, 1904,
because of the provisions of section 452, Rev. Stats. U. S.
The judgment and order of the trial court are reversed, and a new trial granted.
Sweeney, J.: I concur.
Talbot, C. J., dissenting:
It is alleged in the complaint, and admitted in the answer, that the defendants Cook and
Lloyd were the grantors to the plaintiffs, excepting Louisa Frank, of a part of the ground in
dispute. The district court found from the evidence and admissions made on the trial that on
the 31st day of December, 1903, and for several years prior thereto, the plaintiffs and
defendant Lynch were the owners of the Last Shange, the Triangle, and the Bellevue mining
claims in contest; that in June 1902, there was executed to defendant Lloyd a written lease on
the property for one year, to June 17, 1903; that the defendant Cook was at all times during
the term of the lease jointly interested with defendant Lloyd; that between the 17th day of
June, 1902, and some time in October of that year, both the defendants Cook and Lloyd
mined the premises described in the lease as partners thereunder; that in the month of October
or November, 1902, when the lease still had more than one-half of its term of one year to run,
they quit the premises and removed their tools, and that neither of them entered thereon again
until the latter part of December, 1903.
During the year 1902, and after the 17th day of June of that year, Cook and Lloyd did
about five hundred dollars worth of work on the premises covered by the lease, and more than
sufficient to cover the assessment work for that year. The principal plaintiffs in interest lived
out of the state, and the defendants resided adjacent to the claims. Possession was not
surrendered to plaintiffs at the end of the time specified in the lease, nor were they notified by
the defendants that the latter had quit possession or were ready to surrender the premises. The
plaintiffs did not have any labor performed on the claims during the year 1903.
29 Nev. 518, 546 (1907) Hand v. Cook
labor performed on the claims during the year 1903. In December, 1903, the defendants Cook
and Lloyd, still without having surrendered possession to the plaintiffs or having notified the
plaintiffs that they had quit the premises, did some work on the claims, giving the appearance
that the required assessment was being performed. On the 1st day of January, 1904, the
defendant Cook, while he was a United States deputy mineral surveyor, made a relocation
under which the ground is now claimed.
On the theory that it makes no difference in whose name a lease or property belonging to a
partnership stands, it is urged in the respondent's brief that Cook and Lloyd were equally
bound and responsible as partners under the lease, and, in addition to the assertion that Cook
is disqualified to make the location, it is claimed that the district court erred in not holding
that there was a relationship of trust and confidence existing between the defendants and
plaintiffs which precluded them from initiating any rights to the property adverse to the
plaintiffs for the reasons, first, that they admit that they are the grantors of the plaintiffs;
second, they admit that they performed the assessment work for several years for the
plaintiffs; third, that they entered into the possession of the ground jointly under a lease made
by the plaintiffs on the 17th day of June, 1902, and never at any time notified the plaintiffs
that they had abandoned the lease or offered to redeliver possession of the same; fourth, that
by their conduct and statements they misled the plaintiffs and respondents by the fact of their
coming on the ground at different times during the latter part of the year 1903 and working
thereon, and their representations that they were doing the work as assessment work for the
plaintiffs. Of the two points relied upon by plaintiffs on the trial, the district court found
against them on the contention that Cook was disqualified from relocating the ground which
with Lloyd he held under a lease from the plaintiffs without surrendering possession to them,
and based the judgment in favor of the plaintiffs on the other ground that Cook was
disqualified from locating claims because he was a United States deputy mineral surveyor.
29 Nev. 518, 547 (1907) Hand v. Cook
The plaintiffs and respondents are still claiming here that Cook was disqualified by reason
of his being such surveyor, but that, if this court holds that he was not, the judgment should
be sustained on the ground that he could not make the location against his lessors when he
had not surrendered possession to them. Against this contention it is said that respondents are
not appealing, and they have not assigned any error against the conclusion of the district
judge that Cook was not disqualified as a lessee. Whether, under these circumstances, the
facts as found by the trial court may be considered conclusive unless the defendant expresses
dissatisfaction with them, and requests a new trial for the purpose of introducing further
evidence, and whether this court could sustain the judgment if it believed the conclusion of
law made by the district court that Cook was not disqualified as a lessee was wrong, and on
that ground, is not determined, and, as this question is not discussed in the decision, I express
no opinion as to whether the judgment ought to be sustained on the ground that the lease was
renewed and continued by the failure of Cook and Lloyd to surrender possession and by their
working on the ground in December, 1903, six months after the time specified for its
termination and for the redelivery of the claims. (Fitton v. Hamilton, 6 Nev. 196.)
Whether Cook and Lloyd, living adjacent to the mine and in possession under the lease from
the principal plaintiffs, who were absent from the state, could, without surrendering or
attempting to surrender possession, or notifying the plaintiffs that they wanted to surrender
possession, and after working on the claims six months after the life of the lease, make a
location a few days later, if Cook had not been a deputy mineral surveyor, which would not
inure to the benefit of the plaintiffs, and whether the district court should not have found as a
conclusion of law that Cook could not acquire rights in the premises against his lessors, and
whether the judgment ought not to be affirmed on these grounds on the theory that the
findings have correctly and satisfactorily to all parties settled the facts, and that the
conclusions of law thereon may be reviewed in this court, without putting the parties to the
trouble and expense of another trial, unless there is dissatisfaction with the findings of
the district court, and appellants ask for the remanding of the case to enable them to
introduce evidence which might establish different facts more favorable to them, are
questions which remain undecided here and may necessitate another appeal.
29 Nev. 518, 548 (1907) Hand v. Cook
parties to the trouble and expense of another trial, unless there is dissatisfaction with the
findings of the district court, and appellants ask for the remanding of the case to enable them
to introduce evidence which might establish different facts more favorable to them, are
questions which remain undecided here and may necessitate another appeal.
Whether the principle announced by this court that a wrong reason assigned for certain
rulings by the trial judge will not reverse a correct result applies if the judgment is correct, but
has been rendered on an incorrect conclusion of law when the findings of fact, standing
unattacked, warrant a conclusion of law which would support the judgment, is not
determined. Under such conditions, and where there is no appeal or specification of error by
the respondent, should the judgment be sustained or should the case be remanded for a new
trial? So much by way of showing that these propositions may be involved, but as they are not
considered in the decision I express no opinion in regard to them.
In the conclusion reached by my associates that Cook was not disqualified as a United
States deputy mineral surveyor for making locations I am unable to agree. The language in
section 452, that the officers, clerks, and employees in the General Land Office are
prohibited from directly or indirectly purchasing or becoming interested in the purchase of
any of the public land, plainly contains a prohibition against officers, clerks, or employees in
the land office purchasing or becoming interested, directly or indirectly, in the purchase of the
public lands, an, in addition, a penalty by removal from office is added. The argument in the
spacious brief of more than one hundred printed pages, that the citizens, and not the
government, own the land, and that Congress cannot deprive the citizen of his rights, is more
sentimental than of legal force. Although our laws are most liberal in this regard, allowing
citizens rights reserved in the crown in other countries, that the agricultural, timber, grazing,
swamp, and mineral lands on the public domain belong to the government as against any
citizen, and are subject to the laws of Congress, is an elementary proposition too clear for
dispute. The language of the act being plain, it ought not be varied by reference to any
former acts which it supersedes and repeals.
29 Nev. 518, 549 (1907) Hand v. Cook
by reference to any former acts which it supersedes and repeals. As the location of mining
claims is the first step toward the acquiring and purchasing of them from the government, and
the officers, clerks, and employees in the land office are prohibited from purchasing or
becoming interested in the purchase of the public lands, it follows that they ought to be
considered as prohibited from making locations. Full force and fair interpretation should be
given to the words used. The holding of the majority of the court that the penalty clause of the
statute only is effective, and that the word prohibit which it contains does not prohibit, is
equivalent to the elimination and judicial repeal of the prohibition enacted by Congress. No
penalty or forfeiture is to be implied which is not clearly expressed, but the court has no more
right to eliminate penalties or prohibitions which are plainly provided in an act of Congress
than it has to impose others which are not expressed. The intention or purpose of the act
should not be construed away by technicalities or fine distinctions. I hold to the broader
construction that clerks, officers, and employees in the General Land Office include officers,
clerks, and employees in the offices of the surveyors-general and the local land offices, which
are merely arms or branches of the General Land Office. Within the letter of the act, a United
States deputy mineral surveyor is a deputy because so specified and is generally so called,
and, as far as I am aware, is without other designation. He is commissioned and required to
give bond and qualify. His duties are regulated by the acts of Congress, and the rules of the
land office, and are performed under its supervision for the aid of the government in
disposing of the mineral lands. Although paid by the claimant, he acts for the government as
much, if not more, in the proceedings to obtain patent for mines than for the claimant, and as
much as other officers who are paid a fee by the claimant. His work is directed, supervised,
and may be rejected by the Surveyor-General, the Commissioner of the General Land Office,
and the Secretary of the Interior. He must be appointed and qualified under the statute and
government regulations, possibly more fully than clerks and employees of the land office
generally, before he can act, and, in one sense, he is selected, employed by, and works for
the United States.
29 Nev. 518, 550 (1907) Hand v. Cook
employees of the land office generally, before he can act, and, in one sense, he is selected,
employed by, and works for the United States. If there be any doubt as to whether his
designation in the statute as a deputy and the other provisions do not bring him within the
letter of the law, he comes within its spirit, and, if the letter kills, the spirit ought to control
and give life to the statute. When we look to the object and purpose of the restriction by
Congress against the acquiring of the public land by the officers, clerks, and employees in the
land office, stronger reasons are apparent for prohibiting the deputy surveyors from locating
mining claims than for placing such restraint upon other officers. His professional training
and work on the ground in surveying for patent and which he could not be selected to do until
he has first been appointed deputy by the surveyor-general gives him opportunities which no
other officer has, and might enable him to discover that the apex of the most valuable ledge
was outside of the claim, and thereby enable him to locate and hold it against the claimant by
whom he had been employed, and whose confidence he ought to respect and whose interests
he ought to protect. He would also by reason of his employment be able first to know whether
claims exceeded the maximum length allowed by the statute and to locate the surplus or
fractional ground himself before notifying and giving an opportunity to his employer to locate
it. Restrictions which apply to the principal should apply to the deputy, who has equal or
greater opportunities to take advantage of his employment, to the detriment of persons whose
rights he ought to conserve and who pay for the services he renders in aiding the land office
in the proceedings for patent. The deputy being plainly within the spirit of the act, if not also
within the letter, and having greater opportunities to use to his own advantage the position he
holds under the statute than the persons who are clearly prohibited from making locations, if
by judicial construction he is not disqualified from making them, Congress ought to amend
the law either by repealing the prohibition as to the others, or by making it apply to deputy
mineral surveyors in terms too plain for dispute so it will operate fairly upon all.
29 Nev. 518, 551 (1907) Hand v. Cook
In Lavagnino v. Uhlig, supra, the Supreme Court of the United States were careful to
express no opinion regarding the right of a deputy mineral surveyor to make locations, and
stated that, under the circumstances existing in that case, a consideration of the question was
unnecessary. The decisions relied upon giving construction as to who are and who are not
officers of the United States under other statutes may not be applicable because section 452
does not attempt to prohibit officers of the United States generally but only those in the land
office, regarding whom no controversy was raised in those cases, and neither the language nor
the spirit of that section was in any way considered.
In my opinion the past rulings and present practice as made by the Secretary of the Interior
and the Commissioner of the General Land Office and the opinion of the Supreme Court of
Utah in the Uhlig case, and the decision of the district court, that deputy mineral surveyors
are barred by the act of Congress from making mining locations, ought to be approved and
followed, and the judgment from which the appeal is taken ought to be affirmed.
____________
29 Nev. 552, 552 (1907) Christensen v. Floriston Pulp and Paper Co.
[No. 1726.]
GEORGE CHRISTENSEN, as Administrator of the Estate of George Jorgensen, Deceased,
Respondent, v. FLORISTON PULP AND PAPER COMPANY, a Corporation,
Appellant.
1. AppealRecordAmendment. The notice and undertaking on appeal were misplaced,
and were not certified to the supreme court. Prior to the argument the papers were found, certified by the
clerk and filed with the others. It was also moved prior to the argument that the record on appeal be
amended by adding the notice and undertaking. In the meanwhile the entire record was returned to the clerk
of the lower court, and his certificate was amended to comply with the statute. Held, that there was a
substantial compliance with Supreme Court Rule 7, providing that to correct an error in the transcript either
party may suggest the error, and obtain an order that the clerk certify to the whole or any part of the record,
or may produce it duly certified without the order.
2. DeathActionsJurisdictionAction Under Law of Other State. The right to bring an
action for death by wrongful act in a foreign jurisdiction does not rest upon principles of comity, but
exists because the action is transitory, and not local.
3. SamePublic Policy of State of the Forum. Courts will enforce a cause of action for death
by wrongful act growing out of the laws of another state, when not contrary to the public policy of the state
of the forum.
4. SameExtent of Policy. The public policy of a state in respect to enforcing the remedy in
an action for death by wrongful act only goes to the extent that it by legislation has changed the common
law, and unless the lex fori is substantially the same as the lex loci, the latter law will not be deemed
consistent with the public policy of the forum.
5. SameSimilarity of Statutes. Where the lex loci and lex fori in respect to actions for death
by negligent acts give the same remedy to the same persons, that the former places no restrictions upon the
transitory nature of the action, while the latter does, does not affect the policy of the latter so far as it
recognizes the cause of action and its enforcement.
6. Master and ServantInjury to ServantNegligenceProximate CauseQuestion for
Jury. In an action for death, the question whether decedent was guilty of negligence proximately causing
the accident is for the jury.
7. AppealOmitting Evidence from RecordFindings. Where important exhibits used on
the trial are not certified as part of the record on appeal, the correctness of the trial court's findings or the
verdict cannot be reviewed.
8. TrialInstructions. In an action for death, an abstract instruction that no person has a right
to unnecessarily so use his own property as to endanger the physical safety of another is not prejudicial,
where, when taken in connection with other instructions, the jury could not have been misled.
9. AppealHarmless Error. In an action for death, an instruction that it is the duty of a
master to provide a safe place for his servants to work, and he cannot escape responsibility for a failure to
do so unless it is shown that the servant was guilty of proximate negligence in the assumption of obvious
risks which resulted in his injury, was not prejudicial, there being no evidence of contributory negligence.
10. DeathSupport of Parent by Child. Parents have a legal right to financial support from a
child during his whole life, and their right to recover for his death is not affected by the amount of his
contributions during his life, though the same may be a material factor in determining the amount of
damages.
11. SameActionInstructions. In an action for the death of a man 30 years old performing
manual labor for good wages, an instruction that there was no evidence that decedent had any expectancy
of life beyond the day of his death, or that his parents had any expectancy of life beyond the time of the
trial, and in the event of a finding for plaintiff only nominal damages should be allowed, was properly
refused.
12. SameDamagesLex Loci. In an action for death inflicted in another state, the recovery
of damages is governed by the lex loci.
13. SameMeasure of DamagesCompensation. In an action for death, only actual
monetary damages sustained by the person for whose benefit the action is brought are recoverable, and,
when more than nominal damages are claimed, their amount must be largely determined upon questions of
relationship and dependency existing between decedent and beneficiary at the time of his death.
14. SameAmount AwardedDiscretion of Jury. While the jury is allowed great latitude in
awarding damages in actions for tortious death and their decision will not be disturbed except in extreme
cases, yet the size of the judgment must be justified by the evidence.
15. SameExcessive DamagesAction for Death. A verdict of $10,000 for the death of a
laborer 30 years old, earning $3 a day, is excessive, where it does not appear that he contributed anything
to his parents for whose benefit the action is brought, nor that they are in need of assistance, and there is no
proof of the expectancy of life of the decedent or beneficiaries except their ages.
16. AppealBriefsScurrilous Brief. Where counsel files a brief containing unwarranted
reflections upon the trial judge, he may be compelled to expunge the objectionable matter, and be barred
from further appearance in the case until he does so.
Action for damages by George Christensen, administrator of the estate of George
Jorgensen, deceased, against The Floriston Pulp and Paper Company. From a judgment for
plaintiff, and an order denying a new trial, defendant appeals.
Affirmed on condition of remittitur, otherwise reversed, and new trial granted.
C. H. Wilson and James T. Boyd, for Appellant:
I. We contend that a law in its nature transitory will be given effect by the courts of a
sister state only when the lex loci and the lex fori are substantially the same, and providing
that it is not against the public policy of the laws of the latter state. In the case at bar we claim
that the laws of California and the laws of Nevada are not substantially the same, but, on the
contrary, radically different, and we claim that it is the declared public policy of this state, as
shown by the act of its legislature, to treat actions of this character as not being of a transitory
nature. Therefore, we contend that the courts of this state must refuse to proceed further with
this case; that the case must be dismissed, and the plaintiff allowed to seek his remedy in the
courts of the State of California, which can declare the law of the case with authority, and
which every one must concede has ample power to enforce its decrees.
II. It was error for the trial court to charge the jury as follows: The jury is instructed that
no person or corporation has a legal right to unnecessarily so use his or its own property as to
endanger the physical safety of another. There is no evidence to warrant such an instruction.
It does not appear that the defendant unnecessarily used its property; on the contrary, the
evidence shows that the digester and pipes were used necessarily in the usual and ordinary
course of business. Moreover, there is no such issue; the complaint charges the defendant
with using a highly dangerous and insufficient pipe to transmit paper pulp from its digester to
its blow-pit tank. It is elementary that instructions must not only be predicated on the
evidence, but also confined to the issues made in the pleadings. (Hughes on Instructions to
Juries, secs. 94 and 95, and numerous cases cited; 11 Ency. Pl. & Pr. 158; Sargent v. Linden
M. Co., 55 Cal. 204.)
III. It was error for the trial court to refuse to charge the jury according to the
defendant's fourth requested instruction, as follows: "There is no evidence in this case
that the deceased had any expectancy of life beyond the day of his death, or that the
father and mother of the deceased have, or that either of them has, an expectancy of life
beyond the time of this trial.
jury according to the defendant's fourth requested instruction, as follows: There is no
evidence in this case that the deceased had any expectancy of life beyond the day of his death,
or that the father and mother of the deceased have, or that either of them has, an expectancy
of life beyond the time of this trial. Therefore, you are instructed that, in the event of your
finding for the plaintiff, you must limit the amount of damages to a merely nominal sum. In
all cases where the measure of damages is the pecuniary injury sustained by the parties
entitled to the benefit of recovery, the expectancy of life of the deceased is a material element
for consideration. It is not only material, but is indispensable. (8 Am. & Eng. Ency. Law,
940-947; Louisville R. Co. v. Clarke, 152 U. S. 230; Savannah R. Co. v. Stewart, 71 Ga.
427.)
IV. The damages are excessive. We have already considered the rule of damages in cases
of this character as well as the evidence in the case. As we have stated, there is no evidence
that the deceased ever contributed to the support of his parents; there is no certain evidence of
the age of the deceased; there is no proper evidence of the age of the parents, who are the
beneficiaries; there is absolutely no evidence of the expectancy of life of the deceased, or of
either of the parents, and there is no evidence of any special damages. On this evidence the
cases before considered show that the verdict is grossly excessive. (Kinkead on Torts, sec.
476; 8 Am. & Eng. Ency. Law, 922.)
S. Summerfield, for Respondent:
I. That this action is of a transitory nature, and can be legally maintained in the courts of
Nevada, is not a mere theory, but is a principle of law amply fortified by reason, statutory
enactments, and the overwhelming weight of judicial authority, which includes not only
decisions of the Supreme Court of the United States and of other federal tribunals, but also
the decisions of practically all of the various state appellate courts which have had occasion
to pass upon the point involved. (Dennick v. R. R. Co., 103 U. S. 11; Texas & Pacific R. R.
Co. v. Cox, 145 U. S. 593; S. C. R. R. Co. v. Nix, 68 Ga. 572; Shedd v. Moran, 10 Ill.
App. 618; Burn v. R. R. Co., 113 Ind. 169; Morris v. R. R. Co., 65 Iowa, 727.) This action
being transitory in character, and therefore not limited by provisions of law to the jurisdiction
of the California courts, it is earnestly urged by respondent that appellant is estopped from
beseeching a dismissal by the Nevada courts for the reason that appellant has given its
express consent to be sued in the Nevada courts by appointing and keeping in Nevada an
agent upon whom legal process might be served. (Comp. Laws, 899, et seq.; Connecticut Co.
v. Spratley, 172 U. S. 602; Beale on Foreign Corporations, 265.) The law of the forum, or
jurisdiction in which an action for personal injuries is brought, controls as to the form of the
remedy, manner of its enforcement, the conduct of the trial, and rules of evidence. (Watson
on Personal Injuries, 566; Eingartner v. Illinois Steel Co., 94 Wis. 70; Helton v. R. R. Co., 97
Ala. 275.)
This is an action brought by respondent in the Second Judicial District Court of the State
of Nevada, in and for Washoe County, to recover a judgment for damages against the
appellant for the death of the said George Jorgensen while employed in respondent's paper
mill at Floriston, in the State of California, which death is alleged to have been occasioned by
appellant's negligence.
It was decedent's duty to cook wood pulp in a large cylindrical digester, and, when the
same had been properly cooked, to draw it off from said digester to what was known as the
blow-pit tank. The evidence shows that at about noon, August 31, 1905, the deceased was
found buried in a mass of paper pulp at the foot of the digester. The twelve-inch valve at the
bottom of the digester was found to be open about two inches and the discharge pipe was
broken off immediately beyond the valve, and for the space of a foot, or a foot and a half, it
had fallen away. The action is brought for the benefit of decedent's father and mother, who
are residents of Denmark.
It is admitted by the pleadings that at the time of the death of the said decedent and at the
time of the action the Civil Code of the State of California contained the following
provisions: "When the death of a person, not being a minor, is caused by the wrongful act
or neglect of another, his heirs or personal representatives may maintain an action for
damages against the person causing the death, or if such person be employed by another
person who is responsible for his conduct, then also against such other person.
Civil Code of the State of California contained the following provisions: When the death of
a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or
personal representatives may maintain an action for damages against the person causing the
death, or if such person be employed by another person who is responsible for his conduct,
then also against such other person. In every action under this and the preceding section, such
damages may be given as under all the circumstances of the case may be just. (Section 377,
Code Civ. Proc. Cal.) If the decedent leave no issue, nor husband nor wife, the estate must
go to his father and mother in equal shares, or if either be dead then to the other.
(Subdivision 2, section 1386, Civ. Code Cal.)
At the times in question the code of this state contained, and now contains, the following
provisions:
Whenever the death of a person shall be caused by wrongful act, neglect, or default, and
the act, neglect, or default is such as would (if death had not ensued) have entitled the party
injured to maintain an action and recover damages in respect thereof, then, and in every such
case, the persons who, or the corporation which, would have been liable if death had not
ensued shall be liable to an action for damages notwithstanding the death of the person
injured; and although the death shall have been caused under such circumstances as amount
in law to a felony. Such liability, however, where not discharged by agreement and settlement
shall exist only in so far as the same shall be ascertained and adjudged by a state or federal
court of competent jurisdiction in this state in an action brought for that purpose. If the person
or corporation against whom damages are claimed cannot be duly served with process in this
state, the action to ascertain and adjudge liability for such damages may be brought and
prosecuted in any court of competent jurisdiction in any state or territory where such person
or corporation is found and duly served with process thereof. (Comp. Laws, 3983, as
amended by Stats. 1905, p. 254, c. 148.)
The proceeds of any judgment obtained in any action brought under the provisions of this
act shall not be liable for any debt of the deceased; provided, he or she shall have left a
husband, wife, child, father, mother, brother, sister, or child or children of a deceased
child; but shall be distributed as follows: FirstIf there be a surviving husband or wife,
and no child, then to such husband or wife; if there be a surviving husband or wife, and a
child or children, or grandchildren, then equally to each, the grandchild or children taking
by right of representation; if there be no child or grandchild, then to a surviving brother or
sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore
named, then the proceeds of such judgment shall be disposed of in the manner authorized
by law for the disposition of the personal property of deceased persons; provided, every
such action shall be brought by and in the name of the personal representative or
representatives of such deceased person; and, provided further, the jury in every such
action may give such damages, pecuniary and exemplary, as they shall deem fair and just,
and may take into consideration the pecuniary injury resulting from such death to the
kindred as herein named."
for any debt of the deceased; provided, he or she shall have left a husband, wife, child, father,
mother, brother, sister, or child or children of a deceased child; but shall be distributed as
follows: FirstIf there be a surviving husband or wife, and no child, then to such husband or
wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then
equally to each, the grandchild or children taking by right of representation; if there be no
child or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any;
if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall
be disposed of in the manner authorized by law for the disposition of the personal property of
deceased persons; provided, every such action shall be brought by and in the name of the
personal representative or representatives of such deceased person; and, provided further, the
jury in every such action may give such damages, pecuniary and exemplary, as they shall
deem fair and just, and may take into consideration the pecuniary injury resulting from such
death to the kindred as herein named. (Comp. Laws, 3984.)
Trial was had by jury and a judgment rendered in favor of plaintiff for $10,000 damages.
From the judgment and an order denying defendant's motion for a new trial, defendant
appeals.
1. Counsel for respondent duly noticed a motion to dismiss the appeal upon the ground
that it affirmatively appears from the record that no notice of appeal was ever given as
required by law, and, further, that no undertaking on appeal has been executed by appellant.
In this case the original papers were certified to this court pursuant to the provisions of
section 3862 of the Compiled Laws, and it appears that at the time the clerk of the court
below made such certificate the notice and undertaking on appeal had become misplaced, and
were not certified with the other papers. Prior to the argument in this court the lost papers
were found, certified to by the clerk, and filed in this court and cause. Also, prior to the
argument, appellant's counsel moved that the record on appeal be amended or corrected by
adding thereto the notice and undertaking on appeal. The motion was submitted, and in the
meantime the entire record was returned to the clerk of the court below, that his
certificate thereto might be amended so that the same might conform to the requirements
of the statute and the same was so amended.
mitted, and in the meantime the entire record was returned to the clerk of the court below,
that his certificate thereto might be amended so that the same might conform to the
requirements of the statute and the same was so amended. Rule 7 of this court provides: For
the purpose of correcting any error or defect in the transcript from the court below, either
party may suggest the same, in writing, to this court, and, upon good cause shown, obtain an
order that the proper clerk certify to the whole or part of the record, as may be required, or
may produce the same, duly certified, without such order. If the attorney of the adverse party
be absent, or the fact of the alleged error or defect be disputed, the suggestion, except when a
certified copy is produced at the time, must be accompanied by an affidavit showing the
existence of the error or defect alleged. We think there was a substantial compliance with the
provisions of this rule, and that it is a proper case for the permission of the amendment of the
record as requested, and the same is allowed, and the motion to dismiss is denied.
2. It is very earnestly contended by appellant's counsel that the courts of this state have no
jurisdiction of this cause, for the reason that the death of deceased was occasioned and
occurred in the State of California, and that, owing to the peculiar policy of the State of
Nevada with reference to actions of this kind, its courts will not, through so-called comity,
take jurisdiction of this cause. At common law an action for damages resultant from death
by wrongful act could not be maintained. The first legislation in English-speaking countries
permitting an action of this character was by the British Parliament in 1846, which passed
what has since been known as Lord Campbell's Act. Similar statutes have since been
passed in most, if not all, of the states of this country. While these statutes differ somewhat in
their terms, their general purpose was substantially the same.
A variety of decisions may be found upon the question whether the courts of one state will
assume jurisdiction of an action brought therein for damages for a death occasioned in
another state. A number of early decisions held that such jurisdiction did not exist or would
not be assumed unless the statutes of both states were essentially the same.
that such jurisdiction did not exist or would not be assumed unless the statutes of both states
were essentially the same. What is now regarded as the leading case on questions of this kind
is Dennick v. Railroad Company, 103 U. S. 11, 26 L. Ed. 439. In that case action was brought
in the state courts of New York for a death occasioned in New Jersey. The case was removed
to the Circuit Court of the United States, which court held that the plaintiff could not under
the special statute of New Jersey recover in the action. Upon appeal to the Supreme Court of
the United States the decision was reversed, the court, by Justice Miller, saying: It can
scarcely be contended that the act belongs to the class of criminal laws which can only be
enforced by the courts of the state where the offense was committed, for it is, though a
statutory remedy, a civil action to recover damages for a civil injury. It is indeed a right
dependent solely on the statute of the state; but when the act is done for which the law says
the person shall be liable, and the action by which the remedy is to be enforced is a personal
and not a real action, and is of that character which the law recognizes as transitory and not
local, we cannot see why the defendant may not be held liable in any court to whose
jurisdiction he can be subjected by personal process or by voluntary appearance, as was the
case here. It is difficult to understand how the nature of the remedy, or the jurisdiction of the
courts to enforce it, is in any manner dependent on the question whether it is a statutory right
or a common-law right. Whenever, by either the common law or the statute law of a state, a
right of action has become fixed and a legal liability incurred, that liability may be enforced
and the right of action pursued in any court which has jurisdiction of such matters and can
obtain jurisdiction of the parties. The action in the present case is in the nature of trespass to
the person always held to be transitory, and the venue immaterial. The local court in New
York and the Circuit Court of the United States for the Northern District were competent to
try such a case when the parties were properly before it. (Mostyn v. Fabrigas, 1 Cowp. 161;
Rafael v. Verelst, 2 W. Bl. 983, 1055; McKenna v. Fisk, 1 How. 241, 11 L. Ed. 117.)
v. Fisk, 1 How. 241, 11 L. Ed. 117.) We do not see how the fact that it was a statutory right
can vary the principle. A party legally liable in New Jersey cannot escape that liability by
going to New York. If the liability to pay money was fixed by the law of the state where the
transaction occurred, is it to be said it can be enforced nowhere else because it depended upon
statute law and not upon common law? It would be a very dangerous doctrine to establish that
in all cases where the several states have substituted the statute for the common law the
liability can be enforced in no other state but that where the statute was enacted and the
transaction occurred.
Both the early and the modern views of the courts generally are succinctly stated in the
comparatively modern work of Minor on Conflict of Laws (1901). The author says: Section
200. Death by Wrongful ActIncreasing Liberality of the Courts. In the cases on this subject
two main questions were first presented. If a tortious death is actionable by the lex fori only,
will that statute govern? If actionable by the lex delicti, will that statute control? The first
question was at once decided in the negative, and the correctness of the ruling cannot be
questioned. It is with regard to the second question that the greatest conflict of opinion has
occurred. The view first advanced was that, although the lex delicti made the tortious death
actionable, it would be of no avail upon an action brought in another state, even though the
death was made actionable by the lex fori also, because such statutes were to be regarded as
penal, or at least as having no exterritorial force. As more liberal ideas advanced, the next
step taken by the courts was to recognize the statutes as remedial, not penal, and to permit
actions to be brought in one state for a tortious death resulting in another state and actionable
there, provided there was a statute substantially similar in the state of the forum. But if there
were any very marked dissimilarities between the statutes of the two states, this was still
taken to indicate that the enforcement of the lex delicti was contrary to the policy of the
forum, and the right to sue there would be denied. The present tendency of the more recent
decisions is to advance still further towards liberality and to throw open the courts to
litigants whose cause of action has arisen in other states and under the laws thereof,
even though not actionable at common law or not actionable if it had arisen in the forum,
provided the enforcement of the lex delicti would not seriously contravene the
established policy of the forum.
is to advance still further towards liberality and to throw open the courts to litigants whose
cause of action has arisen in other states and under the laws thereof, even though not
actionable at common law or not actionable if it had arisen in the forum, provided the
enforcement of the lex delicti would not seriously contravene the established policy of the
forum. The presumption is in favor of the right to sue, and the burden rests upon the party
objecting to show that the enforcement of the proper law' would be inconsistent with the
domestic policy.
In support of the last paragraph quoted the author cites the following authorities: Stewart
v. Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Texas R. R. Co. v. Cox, 145
U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Huntington v. Attrill, 146 U. S. 657, 670, 13 Sup.
Ct. 224, 36 L. Ed. 1123; Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Law v.
Railroad Co. (C. C.), 91 Fed. 817, 819; Higgins v. Railroad Co., 155 Mass. 176, 29 N. E.
535, 536, 31 Am. St. Rep. 544; Nelson v. Railroad Co., 88 Va. 971, 14 S. E. 839, 15 L. R. A.
583; Herrick v. Railroad Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, 773. To these
we add the following: Wooden v. Western New York R. Co., 126 N. Y. 10, 26 N. E. 1050, 13
L. R. A. 458, 22 Am. St. Rep. 803; Weaver v. B. & O. R. R. Co., 21 D. C. 499; McLeod v.
Railroad Company, 58 Vt. 727, 6 Atl. 648; Johnson v. Railway Co., 91 Iowa, 248, 59 N. W.
66; St. Louis Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Rep. 65; 13 Cyc. 313,
et seq.
The right to bring such an action in a foreign jurisdiction does not rest, as some of the
decisions seem to put it, upon principles of comity, but rather because the action by which
the remedy is to be enforced is a personal, and not a real, action, and is of that character
which the law recognizes as transitory, and not local. Because the cause of action is in its
nature transitory, courts of other jurisdictions will enforce such rights growing out of the laws
of a foreign state, unless it can be said that such laws are contrary to the public policy of the
state of the forum. As the common law did not recognize this cause of action, it may be said
that the public policy of a state in this regard only goes to the extent that it by legislative
enactment has changed the common law, and therefore that, unless the lex fori is
substantially the same as the lex loci, the latter law will not be deemed consistent with
the public policy of the forum.
legislative enactment has changed the common law, and therefore that, unless the lex fori is
substantially the same as the lex loci, the latter law will not be deemed consistent with the
public policy of the forum. In determining whether the two acts are substantially the same, the
policy of the courts has changed from the rather contracted view taken when the question was
new to a broad and liberal view, which may now be said to very generally prevail.
A very proper rule for guidance may be deduced from the following language of the
Supreme Court of Appeals of New York in Wooden v. Railroad Company, supra: We refer
to the lex fori, and measure it by and compare it with the lex loci, I think, for two reasons:
One, that the party defendant may not be subjected to different and varying responsibilities;
and the other that we may know that we are not lending our tribunals to enforce a right which
we do not recognize, and which is against our own public policy, and we do not refer to our
law as creating the cause of action which we enforce.
The Supreme Court of the United States the first time the question was presented to it
adopted a very liberal view, which later decisions have broadened, as the following extract
from the opinion of the court by Brewer, J., in Stewart v. B. & O. R. R. Co., 168 U. S. 445,
448, 18 Sup. Ct. 105, 106, 42 L. Ed. 537, will indicate: An action to recover damages for a
tort is not local, but transitory, and can as a general rule be maintained wherever the
wrongdoer can be found. (Dennick v. Railroad Company, 103 U. S. 11, 26 L. Ed. 439.) It
may well be that, where a purely statutory right is created, the special remedy provided by the
statute for the enforcement of that right must be pursued, but, where the statute simply takes
away a common-law obstacle to a recovery for an admitted tort, it would seem not
unreasonable to hold that an action for that tort can be maintained in any state in which that
common-law obstacle has been removed. At least, it has been held by this court in repeated
cases that an action for such a tort can be maintained where the statute of the state in which
the cause of action arose is not in substance inconsistent with the statutes or public policy of
the state in which the right of action is sought to be enforced.' Are the statutes of California
and Nevada so dissimilar that it ought to be said that it is against the public policy of this
state to entertain this action?
Are the statutes of California and Nevada so dissimilar that it ought to be said that it is
against the public policy of this state to entertain this action? In both states the right of action
is given for the recovery of damages for death by wrongful act. The person for whose benefit
the action could be brought for damages in this instance is the same under both statutes.
However, the only point of dissimilarity which is seriously urged as affecting the public
policy of this state is that in reference to the extent to which the action is made transitory by
the laws of the two states. In the law of California there are no restrictions and the action is
maintainable, so far as that law is concerned, in any state where jurisdiction can be obtained
over the person of the defendant. Under the Nevada statute the extent to which the action is
transitory is restricted. If the death is occasioned in this state, and personal service can be had
within this state upon the person or corporation liable in damages for such death, action must
be maintained here and the cause of action, under such circumstances, is not transitory. But
the statute of this state specifically provides that, if service of process cannot be made in this
state upon the person or corporation liable, the action * * * may be brought and prosecuted
in any court of competent jurisdiction in any state or territory where such person or
corporation is found and duly served with process thereof.
In this material respect the statute differs from that construed in the case of Coyne v.
Southern Pacific Co. (recently decided by the Circuit Court of the United States for the
District of Utah), 155 Fed. 683, and that case, therefore, throws little, if any, light upon the
question under consideration in this case. While the legislature of this state has restricted the
extent to which actions of this nature are transitory, it cannot be said that there is anything in
the act so restricting the nature of the action itself as would warrant a holding that there is a
manifested policy against the cause of action. Doubtless the reason that actuated the
legislature in making the restriction was the idea that justice to both parties could more
readily or conveniently be had by requiring the action to be brought in the courts of this state
for damages resulting from a death occasioned in this state in cases where jurisdiction
over the person of the defendant within the state could be obtained.
damages resulting from a death occasioned in this state in cases where jurisdiction over the
person of the defendant within the state could be obtained. The restriction goes to the remedy
rather than to the right of action. And, as the remedy unquestionably can be enforced as fully
by the courts of this state as those of any other, it was entirely within the province of the
legislature to make considerations of convenience a ground for requiring the redress for the
injury inflicted to be applied within the state where the injury occurred. This, however, does
not affect the policy of the state so far as it recognizes the cause of action and its enforcement.
If the State of California had a similar provision in its statute, unquestionably this action
could not be maintained in this state. Then the situation would be like that presented to the
court in the case of Coyne v. Southern Pacific Company, supra. As the cause of action is by
the statute of California transitory, and as the enforcement of such a cause of action is
recognized by the statutes of this state, and hence does not contravene its public policy, the
trial court did not err in its assumption of jurisdiction.
3. The next contention made for appellant is that the evidence fails to show any
negligence on the part of the defendant proximately causing the accident and injury
complained of. The question of negligence upon the part of defendant being responsible for
the death of Jorgensen was necessarily a question of fact for the jury. As there were no living
witnesses to the accident, the question had to be determined very largely from the physical
conditions found to exist immediately following the accident, as described by witnesses and
gleaned from certain exhibits, which the record shows were admitted in evidence, taken in
connection with the testimony of witnesses concerning a state of facts existing prior to the
accident with reference to the pipes leading from the digester to the blow-pit tank. There was
evidence to the effect that the acids used in the cooking of the wood pulp had a corroding
effect upon the iron pipes leading from the digester to the blow-pit tank, and that occasionally
they had to be removed; that about a month prior to the accident the pipe began to leak, and
that a patch was placed upon the same by order of the superintendent of the works; that
the decedent had nothing to do with the care of the pipes, and the same were so situated
that he could not readily see their condition.
same by order of the superintendent of the works; that the decedent had nothing to do with
the care of the pipes, and the same were so situated that he could not readily see their
condition. The digester is shown by the evidence to have been about forty feet high and
fifteen feet in diameter. It had a capacity of fifteen cords of chipped wood and twenty
thousand gallons of water to which was added sulphurous acid, lime, and magnesite. After the
digester was filled, a cover was bolted upon the top, and by the introduction of steam a
temperature of 320 degrees Fahrenheit was applied, and when at such heat the gage on the
digester would indicate a pressure of from eighty to eighty-five pounds to the square inch.
When the contents of the digester were sufficiently cooked, the cooker would open the
valve at the bottom of the digester, and permit the contents to be discharged into the blow-pit
tank. When the accident occurred which resulted in the death of Jorgensen, it was found that
the valve was opened about two inches, from which the jury would be justified in inferring
that Jorgensen had begun to draw off the contents of the digester. The pipe exploded near the
valve and at the point where the patch had been placed upon the pipe about a month previous.
From this state of facts the jury were justified in reaching the conclusion that the explosion of
the pipe was the proximate cause of the death of Jorgensen, and that the explosion was
occasioned by the defendant's negligence in continuing to use a worn and defective pipe after
it had become aware of its defective condition. While we have thus briefly gone into the
evidence as disclosed by the record upon this point, it would have been sufficient to have
determined the question upon the technical point raised by respondent, that all of the evidence
is not before this court, and that, under decisions of this court, where the record discloses
such a state of facts, this court will not question the correctness of the findings of the trial
court or the verdict of the jury. It appears from the record that the plaintiff, as part of his case
to establish negligence, introduced certain exhibits testified to as being pieces of the iron pipe
which exploded. It is claimed by respondent that these pieces of pipe constituted very
material evidence upon the question of appellant's negligence.
evidence upon the question of appellant's negligence. These exhibits have not been
certified to this court as part of the record on appeal, and hence all of the evidence upon this
question is not before the court. (Comp. Laws, 3862, 3864; State v. Campbell, 20 Nev. 122,
17 Pac. 620; State v. Parsons, 7 Nev. 57; State v. Bonds, 2 Nev. 265.)
4. Error is assigned in the following instructions given by the court to the jury: The jury is
instructed that no person or corporation has a legal right to unnecessarily so use his or its own
property as to endanger the physical safety of another. It is not contended that this is an
erroneous statement of an abstract legal principle. Even if we were to concede that it is not
strictly applicable in the present case, nevertheless, we think, when taken in connection with
other instructions given, the jury could not have been misled by it.
5. The giving of the following instruction is also assigned as error: The jury is instructed
that fundamentally it is the duty of a master to provide a safe place at which or in which his
servants shall work, and, if he fails to do so, he cannot escape responsibility for such failure,
unless it is shown that the servant himself was guilty of proximate negligence in the
assumption of obvious and apparent risks which resulted in the infliction or sustainment of
his injuries. Concerning this instruction appellant's counsel says: This instruction is
unintelligible. There is no such thing in the law as proximate negligence, neither is there such
thing in the law as negligence in the assumption of obvious and apparent risks. The
instruction, therefore, is an erroneous statement of the law. Before plaintiff can recover in a
suit of this character, the evidence must show that the negligence of the defendant was the
proximate cause of the accident, and it must not show any negligence on the part of plaintiff
contributing as a proximate cause to the accident. It is not contended in the briefs of
appellant that there is any evidence in this case which involves the question of contributory
negligence upon the part of decedent; nor do we think there is anything in the record
warranting the conclusion that the character of decedent's employment was such that an
accident like that which produced his death was ordinarily and usually incident to such
employment, and that he was therefore presumed to have contracted with reference to
the risk or hazard of such accidents.
duced his death was ordinarily and usually incident to such employment, and that he was
therefore presumed to have contracted with reference to the risk or hazard of such accidents.
While we agree with appellant's counsel that, so far as our knowledge and research goes,
and with the light of respondent's brief, proximate negligence is something new to the
jurisprudence of personal damages, nevertheless, under the facts of this case, we are unable to
see in what way this instruction could have been prejudicial to the defendant. Conceding that
there may be such a condition which could appropriately be designated as proximate
negligence, it would necessarily be a condition closely approaching, but which could hardly
be said to reach, the degree of negligence itself. An instruction, the effect of which would be
that something less than negligence upon the part of the person injured might be sufficient to
relieve the master from liability for the latter's negligence, could hardly be prejudicial to a
defendant in any case. While we wish to be understood clearly as not, at this time,
recommending this instruction as a model for use in any case, nor as holding that it is not
erroneous, we do hold that it could not have prejudiced defendant's rights in this case. In this
connection counsel for appellant have not been any more convincing in their argument that
this instruction was prejudicial to defendant than has counsel for respondent been successful
in finding some authority that would stand sponsor for the expression proximate
negligence.
6. Error is assigned in the refusal of the trial court to give the following instruction:
There is no evidence in this case tending to prove that George Jorgensen was in the habit of
saving his wages, or whether he was in the habit of spending all his earnings, or whether he
ever contributed toward the support of or to his father and mother, or either of them, or
whether the father or mother, or either of them, ever had any reasonable expectation of
receiving aid from him. Therefore, if you find a verdict in favor of the plaintiff, you must
limit the amount of damages to a merely nominal sum. The refusal to give this instruction
was held error in the case of Burk v. Arcata Ry. Co., 125 Cal.
Burk v. Arcata Ry. Co., 125 Cal. 365, 57 Pac. 1065, 73 Am. St. Rep. 52, and it is contended
that it is the established law of the State of California applicable to facts such as it is claimed
the record in this case discloses, and, being the law of California, the courts of this state are
bound by it.
Action was brought in the Burk case, supra, for the collateral heirs, two brothers and a
sister of decedent. The same instruction was requested (by the leading counsel for appellant in
this case) in the case of Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 237, 73 Pac. 163,
and its refusal sustained. In the latter case action was brought for the benefit of the father and
mother for the death of their daughter, occasioned by the negligence of the defendant,
Standard Biscuit Company. In the Hillebrand case, supra, the court, after distinguishing the
two cases upon the facts, said: Moreover, in the latter case (125 Cal. 364, 57 Pac. 1065, 73
Am. St. Rep. 52) the action was brought by collateral relatives who under no circumstances
could have any legal right to pecuniary aid from the deceased, while parents may have the
legal right to financial support from a child, and at any time during its life. This case was not
cited to this court, but we think it sufficiently answers appellant's contention. See, also, the
case of In re California Nav. & Imp. Co. (D. C.), 110 Fed. 670, 677.
7. Defendant also requested the following instruction, the refusal to give which is
assigned as error: There is no evidence in this case that the deceased had any expectancy of
life beyond the day of his death, or that the father and mother of the deceased have, or either
of them has, an expectancy of life beyond the time of this trial. Therefore you are instructed
that, in the event of your finding for the plaintiff, you must limit the amount of damages to a
merely nominal sum. If there was any evidence at all in the case which the jury could
consider as going to the question of the expectancy of life of decedent, this instruction would
not be proper. The mere fact that decedent was shown to be a man of only about 30 years of
age, and was upon the day of his death performing, and for a long time prior thereto had been
performing, manual labor for which he was receiving good wages, was some evidence, to say
the least, upon which the jury could conclude he had some expectancy of life beyond the
day of his death.
jury could conclude he had some expectancy of life beyond the day of his death. (Louisville
R. Co., v. Morgan, 114 Ala. 449, 22 South. 20; Beems v. Chicago R. Co., 67 Iowa, 435, 26 N.
W. 693.)
8. The last contention urged by appellant's counsel is that the jury awarded excessive
damages. The amount of damages which the plaintiff is entitled to recover is governed by the
law of California. However, the only material point of difference between the laws of the two
states is in regard to exemplary damages, which a jury in this state, in a proper case, is
authorized to impose. The trial court properly instructed the jury that they could not consider
exemplary damages in rendering their verdict; hence, no part of this judgment can be
regarded as punitive. (Lange v. Schoettler, 115 Cal. 388, 47 Pac. 139; Munro v. Pacific Coast
D. & R. Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Morgan v. Southern Pacific Co.,
95 Cal. 510, 30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143.) All that counsel for
respondent has to say in his brief upon the question of whether or not the damages are
excessive, outside of his contention that the jury could impose exemplary damages, is found
in the following extract: The evidence is amply sufficient to justify the verdict and judgment,
and that without even considering the phase of exemplary damages. The amount awarded,
$10,000, is comparatively a small damage to pay for a human life lost through gross
negligence of an employer, is but one-third of the amount demanded, and was fixed by the
legally constituted authority, the jury.
Whether or not $10,000 is a large or a small damage to pay for a human life depends
entirely upon the facts of a given case. In one sense no amount of money might compensate
for a human life, but the law only looks at the question from the point of actual monetary
damage sustained by the person for whose benefit the action is brought, and not that inflicted
upon the decedent. (Redfield v. Oakland R. Co., 110 Cal. 277, 42 Pac. 822.) Where more than
nominal damages is claimed, such damages must be determined very largely upon questions
of relationship and dependency existing between the decedent and the beneficiary at the time
of the death.
the death. The amount of damage alleged cannot be taken by the jury into consideration in
estimating the award, excepting in so far as it fixes a maximum beyond which the jury may
not go. The jury must be governed by the evidence under proper instructions, and, if it renders
a verdict for an amount manifestly in excess of anything which the facts of the case would
warrant, it is the duty of the court to modify or set it aside. The jury were elaborately
instructed upon the law that should govern them in determining the amount of damages to
which the plaintiff would be entitled in the event they found in plaintiff's favor. Without
setting out these instructions, we think it sufficient to say they substantially coincide with the
law as declared by the courts of California.
In the recent case of Sneed v. Marysville Gas Co., 149 Cal. 704, 710, 87 Pac. 376, 378, the
Supreme Court of California, discussing the measure of damages in cases of this kind, said:
With regard to the measure of damages, in view of the argument made, and of the
probability of another trial, it is proper to say that it is definitely settled that under our statute
the damages to be recovered for an injury causing death are always limited to the pecuniary
loss suffered by the heirs of the person killed by reason of his death. (Munro v. Dredging Co.,
84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Morgan v. Southern Pacific Co., 95 Cal. 510,
30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143; Pepper v. Southern Pacific Co., 105 Cal.
401, 38 Pac. 974; Green v. Southern Pacific Co., 122 Cal. 566, 55 Pac. 577; Wales v. Pacific
E. M. Co., 130 Cal. 523, 62 Pac. 932, 1120; Keast v. Santa Ysabel Co., 136 Cal. 260, 68 Pac.
771; Dyas v. Southern Pacific Co., 140 Cal. 308, 73 Pac. 972; Hillebrand v. Standard B. Co.,
139 Cal. 236, 73 Pac. 163.) We think it may be further said that this pecuniary loss may be
either a loss arising from the deprivation of something to which such heirs would have been
legally entitled if the person had lived, or a loss arising from a deprivation of benefits which,
from all the circumstances of the particular case, it could be reasonably expected such heirs
would have received from the deceased had his life not been taken, although the obligation
resting on him to bestow such benefits on them may have been a moral obligation only.
such benefits on them may have been a moral obligation only. (8 Am. & Eng. Ency. Law, 2d
ed. 922, 939; 13 Cyc. Law & Pro. 367; Redfield v. Oakland C. S. Ry. Co., 110 Cal. 288, 42
Pac. 822; 3 Sutherland on Damages, 3d ed. sec. 1272, p. 3736, sec. 1273, p. 3740.)
In the case of Lange v. Schoettler, 115 Cal. 388, 390, 47 Pac. 139, the court said: Only
such damages can be recovered as the statute authorizes, and, in the absence of an express
provision authorizing a different rule, the only damage allowed is the probable value of the
life to those in whose behalf the action is brought. Of course, this cannot include any
grievance personal to the deceased or any damage allowed in the interest of the people as
punishment. The relatives, or the representatives in their behalf, can recover the value of that
which they have lost through the wrongful act of the defendant, and nothing more. It is true,
in the case of a mother or a wife, the jury have been allowed to consider the fact that they
were deprived of the comfort, society, and protection of a son or husband, but it has been
always held that this was in strict accordance with the rule that only the pecuniary value of
the life to the relatives could be recovered. The probable comfort, society, and protection of
the deceased had some pecuniary value. The rule for computing damages in section 377 is
expressly made applicable, and no doubt it was thus left in the judgment of the jury because
all the elements upon which the estimate of pecuniary loss was to be based were
problematical. The comfort, society, and protection, as well as the support which is to be
estimated, is only something which might have been. The age, character, disposition, and
health of the deceased were all to be taken into consideration. Everything is uncertain and
indefinite. Therefore it is left to the jury to say what they deem just, and if they have not made
their estimate upon a wrong basis, and have not acted under the influence of passion or
prejudice, their judgment is final.
In Morgan v. Southern Pacific Co., 95 Cal. 501, 508, 30 Pac. 601, 602, the court said:
There is no absolute rule in such a case; and about all that can be safely said on the subject
may be found in the opinion of the court in Aldrich v. Palmer, 24 Cal.
24 Cal. 513, and the cases there cited. The general conclusion, as nearly as can be formulated,
is as there stated, namely: That a verdict will not be disturbed because excessive, unless the
amount of the damages is obviously so disproportionate to the injury proved as to justify the
conclusion that the verdict is not the result of the cool and dispassionate discretion of the
jury. (Redfield v. Oakland Ry. Co., 110 Cal. 286, 42 Pac. 822.)
The general rule governing appellate courts in cases of this kind is concisely stated in 13
Cyc. as follows: While the general rule is that the recovery must be confined to strictly
pecuniary damages, the jury are not bound by any fixed and precise rules in estimating the
amount of damages, save by the statutory limit, where such limit exists, but may give
compensation for all injuries, proceeding from whatever source, and their discretion in fixing
the amount of damages should not be interfered with by the court, unless it has been palpably
abused. The rule has sometimes been thus stated: To justify interference by the court with the
verdict of the jury, it must appear that some rule of law has been violated, or else that the
verdict is so excessive or grossly inadequate as to indicate partiality, passion, or prejudice in
the minds of the jurors. * * * However, the discretion of the jury in awarding damages is
under the control of the court, and damages out of all proportion to the actual earnings of the
deceased or to any reasonable expectation of pecuniary benefit from him will not be allowed;
and, where the circumstances of the case or the evidence produced indicate that the verdict
was the result of bias, prejudice, or gross overestimate, the courts have not hesitated to set
such verdict aside. The courts have shown less hesitation in setting aside the verdict where
the action is brought for the benefit of next of kin not dependent upon the deceased than
where the action is for the benefit of the widow or children, and, where the amount awarded
is clearly in excess of the expectation of pecuniary benefit to be derived from deceased by
such next of kin, the judgment will be reversed. (13 Cyc. pp. 375-379, and authorities cited.)
In 8 Am. & Eng. Ency. Law, 2d ed. 922, the rule governing recovery for death of an adult
son is thus stated: When the action is by a parent for the death of an adult son, substantial
damages are recoverable only by showing that the deceased had been of actual pecuniary
benefit to his parent, or that such benefit might be reasonably expected by the continuance of
his life, the reasonable character of such expectation to appear from the facts in evidence.
Otherwise, only nominal damages may be recovered.
Tiffany, in his work, Death by Wrongful Act, says: The proper measure of damages is
the present worth of the amount which it is reasonably probable the deceased would have
contributed to the support of the parent during the latter's expectancy of life, in proportion to
the amount he was contributing at the time of his death, not exceeding his expectancy of life,
though it would seem that the rule is not to be applied with mathematical strictness, and that
the jury may properly take into consideration the increasing wants of the parent, and the
increasing ability of the child to supply them. In Hutchins v. St. Paul, M. & M. Ry. Co., 44
Minn. 5, 46 N. W. 79, it was said: The proper estimate can usually be arrived at with
approximate accuracy by taking into account the calling of the deceased, and the income
derived therefrom, his health, age, talents, habits of industry, his success in life in the past, as
well as the amount of aid in money or services which he was accustomed to furnish the next
of kin, and, if the verdict is greatly in excess of the sum thus arrived at, the court will set it
aside or cut it down.' (Section 168, p. 211.) In notes to sections 168 and 169 the author sets
forth a brief reference to thirty or more decisions showing the application of the rules in
actions for the death of adult children, particularly with reference to the amount of the
verdict.
In the cases referred to the nearest approach to a judgment as large as that given in this
case is that of Little Rock Ry. Co. v. Voss (Ark.), 18 S. W. 172, where it was held that a
judgment for $6,500 was not excessive upon a showing that the deceased contributed to the
support of his mother and her invalid daughter, who belonged to her family, $30 to $50 a
month, and gave his sister $5 to $20 per month when necessary.
a month, and gave his sister $5 to $20 per month when necessary. He was healthy, and his
expectancy of life was thirty-two and one-half years, and he earned from $100 to $150 a
month. His mother was 59 years old, and her expectancy was fourteen and three-fourths
years. His sister was 19 years old, and her expectancy forty-two years. In the case of
O'Callaghan v. Bede, 84 Cal. 489, 24 Pac. 269, where it was shown that deceased was 23
years old, of good habits, and the sole support of his mother and her minor children, to whom
he gave from $40 to $50 per month, a verdict for $3,000 was held not excessive. In every
other case cited by the author the damages allowed were less than half that allowed in this
case, and, with possibly one exception, in every case there was a showing of substantial
contribution to the support of the parent. In the case of Hutchins v. St. Paul Ry. Co., 44 Minn.
5, 46 N. W. 79, from which the author quotes in his text, a verdict for $3,500 was reduced to
$2,000 upon a showing that the deceased did not contribute in excess of $50 per year to his
mother, whose expectancy of life was seven and one-half years.
While it cannot be said that a judgment in one case is a proper criterion for a judgment in
another, and while each case must be considered from its own facts and circumstances
established by proof, and while a very large latitude is allowed the jury in the estimate of
damages, nevertheless, if the award of damages is obviously so disproportionate to the injury
proved as to justify the conclusion that the verdict is not the result of the cool and
dispassionate discretion of the jury, such judgment must be set aside or else so modified as to
bring it within such a limit as the proofs might justify.
In this case the only facts established by the record which the jury could consider in its
estimate of damages were that the decedent at the time of his death was about 30 years of age;
that he was earning at the time of his death $3 a day; that he had been in this country about
seven years and had been employed at various places; that he had on deposit in bank at the
time of his death $462.12; that he left surviving him a father and mother, residents and
subjects of the kingdom of Denmark, of the ages, respectively, of 68 and 58 years.
years. There was no proof as to the expectancy of life of any of said parties outside of the
mere fact of their ages, to which, of course, the jury could apply their general knowledge.
There was no proof whatever of the condition of health of either of said beneficiaries, nor of
the decedent, except that which might be gleaned from the fact of his being able to engage in
remunerative employment. There is no proof from whence deceased derived the money left
by him in the bankwhether it was savings from his wages, or was derived from some other
source, is purely speculative. There is no proof that during his seven years of residence in this
country he ever contributed a dollar to the support of his parents, or ever made them a gift of
money or anything of value, nor is there any proof that the parents of decedent were ever in
need of assistance from decedent or likely to be in need of such. In fact, there is no evidence
whatever of their condition, either present or prospective, in the case. There is, however, no
presumption that the parents are possessed of property sufficient to support them in their
declining years. Of all the cases involving damages for the death of an adult child to which
our attention has been directed, and of the many others we have examined, but few approach,
and none equal, this case in the amount of damages awarded, and with the possibility of one
exception, where the facts as disclosed upon the trial may not have been fully reported in the
case (Webb v. D. & R. G. Ry. Co., 7 Utah, 363, 26 Pac. 981), none appear so deficient in
proof of actual damage. Even though the statute allows the jury great latitude in fixing an
award of damages in cases of this kind, which courts will not disturb excepting in extreme
cases, nevertheless the judgment must be for an amount which under the evidence adduced is
just. In this case we are impelled to conclude that in view of the evidence the judgment is
excessive.
We have decided to reverse the judgment and grant a new trial, unless respondent shall
consent to a modification of the judgment to the sum of $3,000, and, if such consent is filed,
the judgment to be modified accordingly and as modified affirmed.
Before concluding this opinion, we think it proper to here take notice of the character of
briefs which appellant's counsel have filed in this case in so far as they contain certain
references and allusions which tend to reflect upon the judge who presided at the trial of this
case. These allusions are in the main based upon matters entirely foreign to anything which
appears in the record, and, in so far as it is claimed they are justified by the record, we have
no hesitancy in saying they are without justification. Counsel have not attacked in their briefs
a single ruling of the trial court upon questions of the admissibility of testimony to which they
excepted at the time of the trial, and his rulings upon instructions we have in his opinion
sustained. The matter in the briefs to which we refer we regard as a breach of professional
propriety. We deem the references sufficiently censurable to require that appellant's counsel
expunge from the said briefs all references to the conduct of the trial judge comprised in the
last four sentences of the last paragraph of their opening brief and all of paragraph 9 of their
reply brief, and, until such objectionable matter shall be expunged, counsel for appellant shall
not be heard further in this case either in this court or in the lower court. Precedent is not
needed to support this order, but the same may be found in the following authorities: Sears v.
Starbird, 75 Cal. 91, 16 Pac. 531, 7 Am. St. Rep. 124; Friedlander v. Summer, 61 Cal. 116;
Long-Bell Lumber Co. v. Newell (Okl.), 91 Pac. 697.
For the reasons heretofore given, it is ordered that, unless counsel for respondent shall
within ten days from the receipt of a copy of this opinion and order file in this court and cause
written consent that the judgment be modified by reducing the same to the sum of $3,000,
such judgment is reversed and a new trial ordered. In the event such written consent is filed, it
is the order that the judgment be modified accordingly by reducing the same to the sum of
$3,000, and the order denying a motion for a new trial be affirmed.
____________
29 Nev. 578, 578 (1907) Ford v. Campbell
[No. 1727.]
JAMES G. FORD, et al., Respondents, v. WILLIAM
CAMPBELL, et al., Appellants.
1. Mines and MineralsLocationNoticeRecord. Comp. Laws, 210, provides that within
ninety days of posting the location notice on a mining claim the locator shall record his claim with the
mining district recorder and the county recorder of the mining district or county in which such claim is
situated by location certificate; that any record of the location of a lode mining claim which shall not
contain all the requirements named in the section shall be void, etc.; and section 232 provides that, if there
is no mining district, or the residence of the officers within the district is not publicly known, district
recording shall not be required. Held, that, where there is a mining district recorder whose place of
business is publicly known, it is essential to a valid record of a mining claim that the certificate of location
be recorded with the district recorder, as well as with the county recorder.
2. SameDescription. Where the certificate of location of a mining claim described it as
situated about two miles from a certain town, without giving any direction, such description did not
constitute a substantial compliance with Comp. Laws, 210, requiring a description of the location of the
claim with reference to some natural object or permanent monument.
3. SameNecessity of Record. Recording of a certificate of location of a mining claim is not
made an essential requisite to a valid location by the laws of the United States.
4. SameStatutes. Comp. Laws, 231, provides that certificates of location and of labor and
improvements necessary to hold claims need not be sworn to, but must truly state the required facts. Held,
that the words necessary to hold claims did not refer to certificates of location, but only to the words
labor and improvements, which referred to the provisions of the federal statutes requiring the expenditure
of $100 annually in labor or improvements in order to hold a mining claim prior to the issuance of patent.
5. SameNecessity of Record. Comp. Laws, 210, provides for the recording of a location
certificate of a mining claim, and declares that such record shall be prima facie evidence of the facts
therein stated. Section 216 declares that the amount of work done or improvements made during each year
to hold possession of a mining claim shall be that prescribed by the laws of the United States, and section
231 declares that certificates of location and of labor and improvements necessary to hold claims need not
be sworn to, nor be in any specified form, nor state facts in any specific order, but must state the required
facts. Held, that the recording of a certificate of location of a mining claim was not essential to the validity
of a location.
6. SameAbandonmentRelocation. Plaintiffs located a mining claim and performed
certain work which on survey they discovered was on conflicting territory, whereupon they posted a
notice to the effect that they abandoned such work.
they abandoned such work. They did not remove their first notice from the location monument, and a
so-called notice of relocation stated that the claim was relocated to better describe the place of the lode
claim. Held, that such facts were insufficient to indicate an abandonment of their rights under the prior
location.
7. AppealFindingsConflicting Evidence. A finding based on conflicting evidence will
not be set aside on appeal.
Appeal from the District Court of the Third Judicial District of the State of Nevada, Nye
County; Peter Breen, Judge.
Action by James G. Ford, et al., against William Campbell, et al. From a judgment in
favor of plaintiffs, and from an order denying defendants' motion for a new trial, defendants
appeal. Affirmed.
Campbell, Metson & Brown, and Augustus Tilden, for Appellants:
I. Popularly the term relocation is applied indiscriminately to amendments in the ordinary
sense and relocations in the strict sense. Even the statute is, in the loose language employed,
but not in the substance of the enactment, at fault in this respect. Section 213, Comp. Laws,
under the caption Defective CertificateRelocation, permits the filing of an additional
certificate. When? Not when, by the loss of discovery, as here, a claim has ceased to exist, but
when the locator * * * shall apprehend that his original certificate was defective, erroneous,
or that the requirements of the law had not been complied with before filing; or shall be
desirous of changing his surface boundaries, or of taking in any part of an overlapping claim
which has been abandoned. In contradistinction to this, section 214, under the title
RelocationWork To Be Done, provides for the relocation of abandoned lode claims. If
the loss of discovery on the Ella May worked an abandonment, then by compliance with the
provisions of section 214 alone could the locators reappropriate the ground. That they lost
their discovery by so drawing in their south end-line as to exclude their original location shaft
is undisputed. We submit that the loss of discovery worked an abandonment of the claim in
the sense of section 214.
covery worked an abandonment of the claim in the sense of section 214. (Morrison, Mining
Rights, 40; McGinnis v. Egbert, 8 Colo. 54; Michael v. Mills, 45 Pac. 429.) The ground has
reverted to the public domain. There was nothing to amend. Any stranger might, upon the
theory that the original Ella May location was void, have lawfully imposed an entirely new
location upon the ground, or, by recognizing the validity of the original Ella May, but treating
it as abandoned, have erected a relocation thereon.
II. The relocation was not initiated upon discovery and no discovery was made prior to the
intervening of defendants' rights. It may be that discovery at any time prior to the intervening
of a hostile location will relate back to the date of location, but that there must at some time
have been a discovery is elementary. The fact of discovery must be proved by the party
alleging it as the inception of his possessory right. While a location is made without discovery
the land remains public domain until there is a discovery. (Morrison, Mining Rights, 30;
Sands v. Cruikshank, 87 N. W. 589; Tuolumne Co. v. Maier, 66 Pac. 863.)
III. The discovery vein, if any, was not cut at a depth of ten feet. We are not now dealing
with the question of the sufficiency of the location work, but with the mandatory provision of
the statute that the lode must be cut at a depth of ten feet. (Comp. Laws, 209.) The statute
requiring a depth of ten feet is a valid exercise of the right of regulation allowed to the
legislature under the congressional act. (Sissons v. Sommers, 24 Nev. 379.) It will be noted
that the depth at which the vein must be cut is ten feet from the lowest part of the rim. (Comp.
Laws, 209.)
IV. The location work was insufficient in amount. The work should have equaled in
amount a location shaft 4x6x10 feet, or 240 cubic feet. (Stats. 1903.) The evidence shows
without conflict that cut No. 2, at the time defendants' rights intervened, did not equal 240
cubic feet. We say without conflict, because the only admissible evidence is to the effect that,
at the time defendants located the Winifred, cut No. 2 lacked five or more cubic feet of the
amount required by law.
V. The recording of the certificate of location with the district recorder was a necessary
step in the process of location.
district recorder was a necessary step in the process of location. The certificate itself
establishes the fact that the Ella May No. 1 was situated in an organized mining district. The
evidence shows that there was a recorder in the district; that he maintained an office, and that
it was the custom of the district to record certificates of location in his office. The statute
provides that the locator shall record his claim with the mining district recorder and the
county recorder.
M. S. Bonnifield, and Cheney, Massey & Price, for Respondents:
I. There was a discovery before appellants had initiated any rights whatever. Defendants'
location was attempted to be made on the 13th of April. The testimony shows that there was
rock in the face of cut No. 1 and in the bottom of the cut. It was mineral-bearing quartz rock
found in the face of the cut; it was assayed and known to be mineral-bearing rock. It is the
law that a valid location of a mining claim may be made where the prospector has discovered
such indication of mineral, and he is willing to spend his time and money in following such
indications, with the expectation of finding ore. (Harrington v. Chamber, 3 Utah, 94;
Muldrick v. Brown, 37 Or. 185; North Noonday v. Orient, 6 Sawy. 299; Burke v. McDonald,
2 Idaho, 310, 995, 1022; Montana Ry. v. Wigon, 68 Fed. 811; Book v. Justice M. Co., 58 Fed.
120.)
II. The value of a mineral deposit is a matter in which the government does not inquire as
between two mineral claimants. All the parties to this action admit that this ground is mineral
ground. In fact, both parties have proved that it was mineral ground, within the meaning of
that term. (Midgeon v. Montana Central Ry., 77 Fed. 255; Book v. Justice M. Co., 58 Fed.
124; Tan v. Story, 21 L. D. 440; 1 Lindley on Mines, 2d ed. 609.)
III. The law does not require the vein to be cut ten feet in depth, where the work is done
by a cut on the vein. Or an open cut of at least ten feet in length along the lode from the
point where the lode may be in any manner discovered, shall be equivalent to a discovery
shaft. (Comp. Laws, 209.) An open cut of this character, disclosing a mineral-bearing vein
in place, is a compliance with the law.
mineral-bearing vein in place, is a compliance with the law.
IV. The object and purpose of the record of mines, as required by the law of this state, is
for the purpose of giving notice to the world of the ground claimed. The defendants,
according to their own testimony, had notice by this record. They not only had notice by the
record, but it appears they had actual notice based upon an examination of the monuments
erected by the respondents marking the boundaries of the Ella May by reading the two notices
of location placed in the monument by the respondents; they examined the boundary
monuments, and found the same marked, and they found the notice of abandonment of that
portion only of the Ella May ground which overlapped the Pearlie. There was no forfeiture
and no abandonment, because the defendants did all requisite things substantially required by
Congress and by the laws of the state before the defendants attempted to initiate any right.
V. Notices were posted containing the required statement before the defendants initiated
any right; two discovery cuts, one of which was abandoned, were made before the defendants
initiated any right; the claims were monumented before the defendants initiated any right; the
monuments were marked before the defendants initiated any right, and certificates
substantially complying with the provision of the law were recorded before the defendants
initiated any rightsand the defendants knew each and every one of these facts.
This is an appeal from the judgment and from an order denying defendants' motion for a
new trial.
The action was brought for the recovery of the possession of a certain mining claim in
Bullfrog Mining District, Nye County, called the Ella May No. 1, and for damages for the
withholding thereof. The complaint alleges that the plaintiffs were on the 13th day of April,
1905, the owners of, in the possession of, and entitled to the possession, and are now such
owners and entitled to the possession, of the said claim, particularly describing it; that, the
plaintiffs being so possessed, the defendants on the 13th day of April, 1905, without right,
entered into the possession of the demanded premises and ousted the plaintiffs, and now
unlawfully withhold the possession thereof from the plaintiffs, to their damage in the sum
of $25,000.
without right, entered into the possession of the demanded premises and ousted the plaintiffs,
and now unlawfully withhold the possession thereof from the plaintiffs, to their damage in the
sum of $25,000.
The answer denied the allegations of the complaint and alleged: That defendants on the
13th day of April, 1905, were, ever since have been, and now are, the owners, subject to the
paramount title of the United States, in possession and entitled to the possession, of the real
estate or mining ground mentioned and described in the complaint, by location thereof on the
13th day of April, 1905, as a lode mining claim under and by virtue of, and in full compliance
with and in conformity to, the laws of the United States and of the State of Nevada, relative to
mineral locations made on, and the acquisition of, the public domain of the United States;
that whatever right, if any was ever acquired by plaintiffs in and to the real estate or mining
ground mentioned and described in the complaint, was by the location thereof as a lode
mining claim on the 10th day of September, 1904, naming and designating the same the Ella
May Lode Mining Claim,' but no discovery shaft, cut, crosscut, tunnel, or open cut was in
manner and form as provided by law, or at all, sunk, run, or opened upon said mining claim
and location, and said claim and location were abandoned by plaintiffs, and said real estate or
mining ground by them on the 13th day of December, 1904, relocated as the Ella May No. 1
lode mining claim, but the boundaries thereof were not in any manner, or at all, marked,
defined, or designated, and the location of said ground so standing when the defendants
located the same as aforesaid. With the issues thus made by the pleadings, the parties went
to trial.
The proofs showed that on the 10th day of September, 1904, the plaintiffs posted a
location notice upon the ground in question designating the claim as the Ella May.
Subsequently, and within the time allowed by law, they monumented and marked the
boundaries of the claim, and performed their location work as they then supposed within the
limits of their said claim, after which, on or about the 17th day of December, 1904, they filed
a certificate of their location with the district mining recorder and with the county
recorder.
location with the district mining recorder and with the county recorder. On or about the 13th
day of December, 1904, the plaintiffs had their claim surveyed, and then discovered that a
portion thereof overlapped a prior existing claim, and that this overlapping area included their
location cut. They then moved their two south-end monuments so as to exclude the
conflicting area, and posted a notice on their location cut to the effect that they abandoned
such location work. Upon the advice of the surveyor, the plaintiffs, without removing the first
notice of location, posted an additional location notice in the location monument reading as
follows:
Notice of Relocation. Notice is hereby given that the undersigned hereby locate and claim
the following-described piece of mineral bearing ground as a lode claim: From this discovery
monument 410 feet in S. 3 10' west direction and 750 feet in a N. 23 E. and 300 feet on
each side of the middle of the vein. The south end-line is identical with the north end-line of
the Pearlie lode claim and the Little Jim lode claim laps this claim on the west side. The
general course of the vein or ledge is S. 3 10' W. and N. 23 E., and the size of the claim is
1160 feet long by 600 feet wide, this claim shall be known as the Ella May No. 1. Situate in
Bullfrog Mining District, Nye County, Nevada. Relocated this 13th day of December, 1904.
This claim is marked at each corner and on each side-line center by a mound of rock and a
rock chiseled with description of corner and is relocated to better describe the locus of said
claim. Locators: J. G. Ford, J. H. Ford, J. T. Wheeler, C. R. Ford. Location work consists of
cut about 250 feet N. E. of this monument, work equal to 240 cu. feet. Same recorded.
Plaintiffs then excavated a new discovery cut within the boundaries of their claim as
modified. On March 31, 1905, plaintiffs filed with the county recorder, but not with the
district recorder, another or additional location certificate.
On the 13th day of April, 1905, the defendants, appellants herein, entered upon the ground
in question, and posted a location notice thereon reading as follows: Notice of Location. The
undersigned hereby give notice that we have located a claim on a lode or vein. (1) The name
of said location or claim is the Winifred.
tion or claim is the Winifred. (2) The name of the locators is as follows, to wit: William
Campbell, three-fourths, Add Rickard, one-fourth. (3) The claim was located on April 13,
1905. (4) Number of lineal feet claimed in length along course of the vein each way from the
point of discovery, with the width on each side of the center of the vein, and the general
course of the vein or lode as near as may be is as follows, to wit: Situated in the Bullfrog
Mining District, County of Nye, State of Nevada, commencing at the discovery monument
and running 1,100 feet north and 400 feet south from the monument, together with 300 feet
on each side of the center of the vein. This ground was formerly held by J. H. Ford, Wheeler,
and others, and known as Ella May No. 1, but they, not having complied with the law, have
forfeited their rights to said claim. This claim is 1,500 feet long and 600 feet wide, and is
about 1,200 or 1,400 feet west of the Denver lode. Witness our hands this 13th day of April,
1905. [Signed] William Campbell, 3/4ths, Add Rickard, 1/4th. Witness: E. M. Swan.
They subsequently monumented and marked the boundaries of their said claim, sunk a
discovery shaft, and filed a certificate of location with the district and county recorder, within
the time required by law for such acts to be performed. It appears both from defendants'
answer and their notice of location that defendants recognized that the plaintiffs had initiated
a valid location of the claim in controversy, but contend that whatever rights plaintiffs had to
the mining ground had been forfeited for noncompliance with the law before the defendants
made their entry and location.
To support the position of appellants, the principal contention made is that the plaintiffs
and respondents never made a valid record of their claim, and that such record is an essential
part of a valid location. Section 3 of An act relating to the location, relocation, manner of
recording lode and placer claims, mill sites, tunnel rights, amount of work necessary to hold
possession of mining claims and the right of coowners therein (Comp. Laws, p. 43, sec.
210): Within ninety days of the date of posting the location notice upon the claim the locator
shall record his claim with the mining district recorder and the county recorder of the
mining district or county in which such claim is situated by a location certificate which
must contain: 1st, the name of the lode or vein; 2d, the name of the locator or locators;
3d, the date of the location and such description of the location of said claim, with
reference to some natural object or permanent monument, as will identify the claim; 4th,
the number of linear feet claimed in length along the course of the vein each way from the
point of discovery, with a width on each side of the center of the vein, and the general
course of the lode or vein as near as may be; 5th, the dimensions and location of the
discovery shaft, or its equivalent, sunk upon the claim; 6th, the location and description of
each corner, with the markings thereon.
district recorder and the county recorder of the mining district or county in which such claim
is situated by a location certificate which must contain: 1st, the name of the lode or vein; 2d,
the name of the locator or locators; 3d, the date of the location and such description of the
location of said claim, with reference to some natural object or permanent monument, as will
identify the claim; 4th, the number of linear feet claimed in length along the course of the
vein each way from the point of discovery, with a width on each side of the center of the vein,
and the general course of the lode or vein as near as may be; 5th, the dimensions and location
of the discovery shaft, or its equivalent, sunk upon the claim; 6th, the location and description
of each corner, with the markings thereon. 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, or a copy thereof, duly verified by a mining recorder or duly certified by a
county recorder shall be prima facie evidence of the facts therein stated.
The contention of counsel for appellants is well taken, that where there is a district
recorder, whose place of business is publicly known, to make a valid record, it is essential to
record the certificate of location of a mining claim within such district with the district
recorder, as well as with the county recorder. Section 25 of the act heretofore mentioned reads
as follows: Where there is no mining district, or where a district having once existed the
residence of the officers within the district and their places of business within the district
where the books are kept are not publicly known, district recording shall not be required of
the locator or claim owner. But recording shall be required in the office of the county recorder
in all cases; as well where there is a district recorder as where there is none. (Comp. Laws,
232.) This section, construed in connection with section 3, heretofore quoted, shows, we
think, clearly that it was the legislative intention to require recording of certificates of
location with the county recorder in all cases, and, in addition, with the district recorder in
cases where the office of such recorder within the district where the books are kept is
publicly known.
the books are kept is publicly known. In order for a locator to avail himself of the benefits
given to him by statute by recording a certificate of location, such recordation must be with
both the district and county recorder, where the office of the district recorder is publicly
known, and, where there is no such district recorder, recording with the county recorder alone
is sufficient. In the case at bar it is shown that there was a district mining recorder within the
district where plaintiffs' claim was situated, and that the second certificate of location filed by
respondents was not recorded with the district recorder.
It is further contended that neither of said certificates are sufficient in form, for the reason
neither contains a description of the location of the claim with reference to some natural
object or permanent monument as will identify the claim as is required by subdivision 3 of
section 3, supra. The description given in both certificates is substantially the same, and is as
follows: Said claim is situated about two miles from the Town of Amargosa. No direction
is given, and the claim might be anywhere within an area of from six to eight square miles,
and still answer to the description given. We think it needs no argument to convince the mind
that such a description is not a substantial compliance with the requirements of the statute,
even though the courts are very liberal in such matters, and ordinarily it is a question of fact
for the jury to determine. (Brady v. Husby, 21 Nev. 453, 33 Pac. 801.) So far as the
certificates of location in question in this case are concerned, plaintiffs are in no better
position than if no certificate or certificates had been made or filed.
This leads to an inquiry into the proposition most strenuously contended for by appellants'
counselthat under the mining laws of this state recordation in the manner prescribed by law
is necessary to perfect a valid location; in other words, that it is an essential part of the
location itself. In this contention we cannot agree. The recording of a mining claim by the
laws of Congress is not made an essential requisite to a valid location. (Haws v. Victoria
Copper Co., 160 U. S. 303, 16 Sup. Ct. 282, 40 L. Ed. 436; Brady v. Husby, 21 Nev. 453
Husby, 21 Nev. 453, 33 Pac. 801; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Southern
Cross M. Co. v. Europa M. Co., 15 Nev. 383; Gleeson v. Mining Co., 13 Nev. 442; 1 Lindley
on Mines, 2d ed. 273.) If it is a necessary step to perfect a valid location, and a failure to
make a valid record works a forfeiture of prior existing rights, such legislation must be found
clearly expressed in our state statute.
Section 24 of the mining act of this state reads as follows: Certificates of location and of
labor and improvements necessary to hold claims need not be sworn to, and are not required
to be in any specified form, nor to state facts in any specific order; but must truly state the
required facts. (Comp. Laws, 231.) Counsel for appellants urges that the words in this
section necessary to hold claims refer to the words certificates of location. We think the
legislature intended them to refer alone to the words labor and improvements. The labor
and improvements mentioned in this section refer, we think, to the provisions of the federal
statute requiring the expenditure of $100 a year annually in labor or improvements in order to
hold a mining claim prior to the issuance of patent. Sections 24 and 25 were not originally a
part of the general mining act passed by the legislature of 1897, but were added to the act by
an act amendatory of and supplemental to the original act passed by the legislature of 1899.
Section 10 of the original act (Comp. Laws, 217) required certificates of labor or
improvements required by law to be annually performed or made upon any mining claim to
be in the form of an affidavit. This requirement, among other things, is obviated by the
provisions of the added section 24. The construction we have placed on this section is further
borne out by the language of section 9 of the act, which, in part, reads: The amount of work
done or improvements made during each year to hold possession of a mining claim shall be
that prescribed by the laws of the United States, to wit: One hundred dollars annually. * * *
(Comp. Laws, 216.) By referring to the title of the mining act, heretofore quoted, it will be
observed that one branch of the legislation covered by the statute is the location, another is
the relocation, and another is the manner of recording lode and placer claims, mill sites, etc.
lode and placer claims, mill sites, etc. If the contention of counsel for appellants is correct, the
words manner of recording are mere surplusage and are fully covered by the words location
and relocation.
Counsel for appellants contends that the words shall record his claim used in section 3,
above quoted shows that the legislature intended recording to be an essential step in
perfecting a valid location. Similar language is used in section 14 (Comp. Laws, 221) of the
same act relative to the certificate of location of a placer claim; in section 17 (Comp. Laws,
224) relative to the location of a mill site, and in section 21 (Comp. Laws, 228) relative to the
location of a tunnel right. In all these various sections is the provision that, if the certificate as
recorded does not contain all the requirements named, such record shall be void. If the
legislature had intended that the location shall be void if the record was not made as required
by the particular section of the statute, it would have been very easy for it to have said so.
Upon the contrary, it has said, not once, but repeatedly, that such record shall be void. The
statute provides that these records when properly made are prima facie evidence of the
recitals therein contained. Where such records are not made and filed in the manner required
by law, they are declared to be void, and hence they cannot be used to establish prima facie
the facts which they recite. If a certificate of a mining location was filed which conformed in
every particular to the requirements of the statute, with the exception that it failed to set forth
the location of the discovery shaft, the certificate would, under appellants' counsel's
contention, not only be void as a record, but the whole location would be void, unless the
record was corrected before an intervening location was made. If this contention were correct,
then, the legislature has, in effect, prescribed that a mere oversight in omitting something
required in the record is sufficient to work a forfeiture of valuable mining rights. Such
intention we think ought not to be imputed to the legislature, except upon the very clearest
language, not susceptible to any other reasonable construction.
Commenting on the same provision of our statue, Judge Hawley, in the case of Zerres v.
Vanina {C. C.), 134 Fed.
Hawley, in the case of Zerres v. Vanina (C. C.), 134 Fed. 618, said: The statute under
consideration, while designed to give constructive notice to prospectors of ground claimed by
the locators, was also intended for the benefit of the miners making location upon the public
domain. It gives to the locator ninety days to record his certificate of location after posting his
notice of location, tells him what it shall contain, and declares that, if it does not contain what
is required, the record' shall be void. It does not say that, if the record is not made, his rights
to the claim shall be forfeited. It is important for him to make the record, to record his
certificate of location within the time required, and see to it that it contains all of the six
requirements stated in section 210. Why? Because, as therein stated, any such record or a
copy thereof * * * shall be prima facie evidence of the facts therein stated.' But, if he fails to
record his claim, it was not intended that he should be deprived of all his rights to the mining
ground, provided he had substantially complied with all the other requirements of the mining
laws. The record of the location is the inception of what may be called the paper title. It does
not of itself constitute title, nor the possessory right to the mining ground to which it relates. *
* * Suppose the certificate of location had been filed within the time specified, and that it
literally complied with all the requirements provided in the statute, but in reality that the
statements therein made were false.' Such a record would not make the possessory title good.
The subsequent locator, notwithstanding the fact that a perfect record had been made, would
not be estopped from showing that it was false. If no record at all is made until after a
subsequent locator claims a right to the ground, should not the original locator be allowed to
prove, if he can, that he had in all other respects fully complied with all the requirements of
the law? If he fails to properly record his certificate of location, he may be deprived of the
benefits given by law, which would enable him more easily to prove and make out a prima
facie case. But it was not the intention of the lawmakers to deprive him of otherwise proving
that he had performed the essential acts necessary to give him the right of possession to the
ground."
him the right of possession to the ground. (Last Chance M. Co. v. Bunker Hill S. M. Co., 131
Fed. 579, 66 C. C. A. 299.)
It appears from the transcript that the plaintiffs rely upon proof independent of any
recorded certificate to establish a valid location of the Ella May No. 1 claim. It is contended
by appellants that the proofs show that the plaintiffs abandoned their first location of the Ella
May claim, and relocated it as an abandoned mining claim, and that they failed to comply
with the requirements of law in reference to the location of abandoned mining claims. The
trial court found that it was not the intention of the plaintiffs to abandon their rights, whatever
they were, under their prior location; and we think the evidence and circumstances of the case
justify this finding. When plaintiffs discovered by the survey that their location work was
upon a prior existing claim, they posted a notice that they abandoned such work. This of itself
evidenced an intention not to abandon any rights they might still have in their location beyond
the area in conflict. They did not remove their first notice from the location monument, and
the so-called notice of relocation in terms stated the purpose for which it was posted, to wit:
This claim * * * is relocated to better describe the locus of said lode claim. It may be that
the plaintiffs did not adopt the best course in the premises, or use the most explicit language,
but is quite certain that they were acting in good faith, and that no intervening rights were
prejudiced. (Lockhart v. Johnson, 181 U. S. 516, 526, 21 Sup. Ct. 665, 45 L. Ed. 979; Lindley
on Mines, 2d ed. 330.)
Appellants contend that there is no sufficient showing of a discovery upon the Ella May
claim; that the location work is insufficient in amount and does not disclose a lode or vein of
mineral in place; and, further, that the markings of the boundaries are insufficient. As to the
question of discovery, even if that question were not taken out of the case by the pleadings as
we think it is (1 Lindley on Mines, 2d ed. 404), the most that can be said is that there is a
substantial conflict in the evidence upon this question, and, where such is the case, this court
has repeatedly held that it will not disturb the finding of the trial court. The same may also,
we think, be said with regard to the location cut.
think, be said with regard to the location cut. The contention with regard to the sufficiency of
the monuments and markings thereon is based entirely upon the assumption that the Ella May
No. 1 claim was located as an abandoned mining claim, and that the prescribed method of
monumenting and marking such abandoned claim was not complied with. This question has
already been disposed of.
Other alleged errors are assigned in the transcript, but the views we have already expressed
regarding this case make it unnecessary to refer to them.
For the reason given, the judgment and order of the trial court are affirmed.
____________
29 Nev. 601, 601 (1907) Memorial for Bigelow and Hawley
IN
MEMORIAM
PROCEEDINGS
IN THE
SUPREME COURT OF THE STATE OF NEVADA
____________
Monday, December 2, 1907.
Present: Hon. G. F. Talbot, Chief Justice,
Hon. F. H. Norcross,}
}Associate Justices,
Hon. J. G. Sweeney, }
and officers of the court and several members of the bar.
The committees heretofore appointed to draft suitable resolutions expressing the sorrow of
the court and bar resulting from the deaths of the Hon. Rensselaer R. Bigelow and the Hon.
Thomas P. Hawley, each of whom was formerly a Chief Justice of this court, presented the
following memorials:
REGARDING JUSTICE BIGELOW
Rensselaer R. Bigelow was born on the 28th day of Gebruary, 1848, in Essex County,
State of New York. He was married to Roxanna C. Gooding on the 5th day of January, 1876.
Two children were the issue of this marriagea daughter, Harriet E. Bigelow, who died some
years ago; and a son, Earl G. Bigelow, now living.
Judge Bigelow died at the City and County of San Francisco, on the 18th day of February,
1907.
Judge Bigelow was admitted to the bar in the State of Nevada on the 4th day of
September, 1872, and practices his profession in Elko, Nevada, until 1882, in which year he
was appointed District Judge to fill the vacancy caused by the death of J. H. Flack. He was
subsequently elected District Judge and served in that capacity until 1890. On the 2nd day of
December, 1890, he was appointed Justice of the Supreme Court of this State to fill the
vacancy occasioned by the resignation of the Hon.
by the resignation of the Hon. Thomas P. Hawley. Prior to this appointment, on the 4th day of
November, 1890, he had been elected a Justice of the Supreme Court of this State, for the
term commencing in January, 1891. Her served the full term as Justice of the Supreme Court
of Nevada, and upon the expiration thereof, in January, 1897, removed to San Francisco, and
was there engaged in the practice of his profession until April 18, 1906, when, by reason of
failing health, he was compelled to retire therefrom.
Judge Bigelow in his professional and private life exemplified the highest type of
patriotic citizenship, of the skilled and honest lawyer; in his official life, of the able and
upright judge; and in his domestic life, of the loving husband and father.
Therefore, Be It Resolved, That in testimony of the esteem and respect of the bench and
bar of this State, the Supreme Court thereof be requested to cause this memorial to be spread
upon the records of the court; that a copy thereof be published in the 29th volume of the
Nevada Reports; and that a certified copy thereof be forwarded to his widow and family by
the clerk of said court.
W. A. Massey,
M. A. Murphy
C. E. Mack.
REGARDING JUSTICE HAWLEY:
Whereas, In the fullness of years, and with the laurels of his judicial fame still unfaded
upon his brow, the Honorable Thomas P. Hawley, for so many long years an honored member
of the Supreme Court of Nevada, and later for more than a decade and a half a distinguished
member of the Federal Judiciary, has fallen into that slumber which is the earthly end of
every human life; and
Whereas, We feel that the passing of so conspicuous, able, and universally respected a
jurist forever from the sphere of human affairs into the domain of our judicial history,
State and National, should be fittingly recognized;
able, and universally respected a jurist forever from the sphere of human affairs into the
domain of our judicial history, State and National, should be fittingly recognized;
Be It Resolved, That we most deeply deplore the death of one who was not only our
professional brother, but a just, upright, and able judge, worthy in every way of our honor,
respect, and esteem.
Resolved, That while keenly sensible of the loss we have sustained, we nevertheless feel a
mournful pleasure in knowing that our deceased brother and friend had more than lived out
the allotted age of man, and that, although he has personally gone from our midst, both his
private life and his public career will be a source of inspiration and a beacon star of hope for
untold generations yet to come.
Resolved, That these resolutions be entered at length upon the records of this court, and
that a copy thereof, under the seal of the court, be forwarded to each of the children of our
deceased friend and brother.
C. H. Belknap,
M. A. Murphy,
A. L. Fitzgerald,
R. C. Stoddard,
H. F. Bartine.
Hon. M. A. Murphy, Hon. H. F. Bartine, Hon. C. H. Belknap. Alfred Chartz, Esq., and
others, in well-chosen and extended remarks, addressed the court, expressing the profound
respect and admiration of themselves and the bar for the deceased jurists.
The Chief Justice responded:
The court joins the members of the bar in deploring the loss of the two distinguished
brothers in the profession. As with loved ones in our immediate families, we are never ready
to lose our eminent citizens who must go as inevitably as all others.
tably as all others. It seems but yesterday that they were with us in the strength of manhood
and mental vigor. In the course of nature we are here this brief day, to-morrow we will be
gone, and others will have taken our places.
Only last evening a prominent attorney of this court, in an eloquent address in a sister
city, incidentally compared one of these able jusrists to an oak, indicative of more solidity and
permanency that a rose. Yet the difference in the period of existence is only between a short
span and one a little briefer, when Time, the destroyer and tomb-builder, gathers all.
The language of the myriad-minded and immortal bard that the evil men do lives after
them, the good is often interred' does not apply to them. Their greatest fame and most
enduring monument remains from what they did in furtherance of justice, and for the general
good in fitting to the jurisprudenc of this developing State the common law, which, although
it is based on the wisdom and experience of ages in other countries before it was transplanted
here, yet is progressive and elastic enough to meet and cover the new conditions and
necessities which arise in the affairs of men. Their exemplary and industrious careers and
self-acquired success remind us forcibly of what may be accomplished by right living, close
application, and honest endeavor, and of the opportunities afforded under this great
government and a beneficent Creator.
We thank the members of the committees for the appropriate resolutions. Copies will be
spread upon the minutes of the court and forwarded to the immediate relatives of the
deceased, and they will be included in the next official report of decisions to be published.
In further honor of their memory, this court, in which they so ably presided, will stand
adjourned for the day.
____________

Nevada Reports 1906-1907 (29 Nev.) PDF

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