Nevada Reports 1959 (75 Nev.) PDF

75 Nev.
1, 1 (1959)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 75
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75 Nev. 1, 1 (1959) Ingersoll v. Lamb
ROBERT J. INGERSOLL, Petitioner, v. GERALDINE LAMB as Clerk of the
Commissioners of Ormsby County, Nevada, DONALD ARMSTRONG, EVERT GORDON,
and WILLIAM GONI as Commissioners of Ormsby County, Nevada, Respondents.
No. 4171
January 5, 1959 333 P.2d 982
Original petition for writ of mandate directing issuance to petitioner by county
commissioners and their clerk of a certificate of election as county assessor. The trial court
had denied an identical petition. The Supreme Court, Badt, J., held that, where, of the two
candidates for office of county assessor, candidate who received highest number of votes cast
in the general election had died prior to the election, and most, if not all, electors voting at
general election had knowledge of his death, other candidate was not entitled to a certificate
of election, since he had not received highest number of votes cast.
Writ denied.
Vargas, Dillon & Bartlett, and Alex A. Garroway, all of Reno, for Petitioner.
Cameron M. Batjer, District Attorney, Ormsby County, for Respondents.
Elections.
Where, of the two candidates for office of county assessor, candidate who received highest number of
votes cast in the general election had died prior to the election, and most, if not all, electors voting at
general election had knowledge of his death, other candidate was not entitled to a certificate of election,
since he had not received highest number of votes cast. Const. art. V, sec. 4; NRS 296.380.
OPINION
By the Court, Badt, J.:
This is an original petition for a writ of mandate (after denial by the First Judicial District
Court, Richard R. Hanna, judge, of an identical petition) directing the issuance to petitioner
by respondents of a certificate of election as assessor of Ormsby County.
Petitioner and Lester V. Smith were candidates for such office at the general election held
November 4, 1958. Smith died October 21, 1958 while he was serving as sheriff and
ex-officio assessor. His death received wide publicity and most, if not all, electors voting at
said general election had knowledge of his death. Smith received 1,489 votes and petitioner
1,161.
No constitutional or statutory provision explicitly governs the situation, nor does any prior
decision of this court direct the solution. The decisions of the courts of other jurisdictions are
diametrically opposed, each asserting its views in positive and uncompromising language.
Under such guidance as is afforded by our constitution and laws and our theories of popular
government, and under authority of those cases which we think follow the better and more
logical rule (as well, it would seem, as the majority rule), we have concluded that petitioner,
not having received the highest number of votes cast, is not entitled to receive a
certificate of election.
not having received the highest number of votes cast, is not entitled to receive a certificate of
election.
With reference to federal, state and district offices, section 4 of article V of the
constitution provides: The persons having the highest number of votes for the respective
offices shall be declared elected. NRS 296.380 reads: The board of county commissioners
shall cause a certificate of election to be made out by the clerk of the board of county
commissioners to each of the persons having the highest number of votes for members of the
legislature, district, county and township offices, respectively, and the clerk shall deliver such
certificate to the person entitled to it upon his making application to the clerk at his office.
As to both of the provisions quoted, petitioner points out that Smith was not a person but
was a deceased person, that the board of county commissioners could not logically cause a
certificate of election to be made out to a deceased person, that a deceased person could not
make application for such certificate. This however but leads us to the main question. Though
the votes cast for Smith were ineffective to elect him to office, must they be treated as void,
thrown away, not to be counted in determining the result with regard to petitioner, the
opposing candidate? Cases cited by petitioner do indeed so hold that a voter at the polls,
unless he votes for some person, is not voting at all, that such ballot is a nullity, cannot be
counted and cannot be given any effect in determining the result of the election. (State ex
rel. Wolff v. Geurkind, 111 Mont. 417, 109 P.2d 1094, 1099, 133 A.L.R. 304
1
); that It is
equivalent to throwing away a vote knowingly to cast it for one who has passed from earth to
the great beyond * * * of no more effect than to deposit a blank ballot, that this is axiomatic
* * * not open to debate * * * obvious to everybody. (Madden v. Board of Election
Commissioners, 251 Mass. 95, 146 N.E. 280, 281
2
); that votes for a dead man are thrown
away; and those who cast them are to be held as intending to throw them away."
____________________

1
But much of the opinion seems to be governed by the fact that the voter could under the statute have written
in the name of a candidate.

2
But here again write-in votes and stickers were permitted.
cast them are to be held as intending to throw them away. (People ex rel. Furman v. Clute,
50 N. Y. 451, 10 Am.Rep. 508.)
Similar language is used in other authorities cited by petitioner. Some are affected by
particular statutes, some by distinguishing death from other disqualification or ineligibility,
some by knowledge or lack of knowledge of the candidate's death. Space does not permit a
discussion of these distinctions, some of which appear to be rather finely drawn.
3
We turn
rather to those authorities whose views we share. In a comprehensive annotation in 133
A.L.R. 319, 321, we read: The general rulethat votes cast for a deceased, disqualified, or
ineligible person are not to be treated as void or thrown away, but are to be counted in
determining the result of the election as regards the other candidateshas been most
frequently applied in cases where the highest number of votes were cast for the deceased or
disqualified person. The result of its application in such cases is to render the election
nugatory, and to prevent the election of the person receiving the next highest number of votes.
The rule has been applied, or recognized as applicable, under such circumstances, in the
following cases: This is followed by citations to cases from 28 states, Puerto Rico, England,
Australia and Canada. We find no better reason for the general rule than that stated by the
Supreme Court of California in 1859, in Saunders v. Haynes, 13 Cal. 145, extensively cited,
and referred to in 7 Calif. Law Review 64 as stating that the rule is well established. An
election is the deliberate choice of a majority or plurality of the electoral body. This is
evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or
fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the
next to him on the poll should receive the office. If this be so, a candidate might be elected
who received only a small portion of the votes and who never could have been elected at
all but for this mistake.
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3
In wiping out the attempted distinction between death, disqualification and ineligibility, the court in State ex
rel. Cleveland v. Stacy, 263 Ala. 185, 82 So.2d 264, 265, tersely says: * * * death is a paramount
disqualification.
only a small portion of the votes and who never could have been elected at all but for this
mistake. The votes are not less legal votes because given to a person in whose behalf they
cannot be counted; and the person who is the next to him on the list of candidates does not
receive a plurality of votes because his competitor was ineligible. The votes cast for the latter,
it is true, cannot be counted for him; but that is no reason why they should, in effect, be
counted for the former, who, possibly, could never have received them. It is fairer, more just,
and more consistent with the theory of our institutions, to hold the votes so cast as merely
ineffectual for the purpose of an election, than to give them the effect of disappointing the
popular will, and electing to office a man whose pretensions the people had designed to
reject.
The same kind of reasoning was used in State ex rel. Herget v. Walsh, 7 Mo.App. 142,
where the court asked: If the voter can make his vote effective only by voting in a certain
way, and if the result of his voting in this way is to secure a new election at which the
majority can elect, how can it be assumed that the voter intended to throw away his vote?
The court later adds, * * * and it is only by a fiction, raised, if at all, by the law, that the
majority in such cases throw their votes away. A like philosophy is expounded in Derringe
v. Donovan, 308 Pa. 469, 162 A. 439, 441, which logically shows that a contrary rule would
be repugnant to the principle of majority rule, which is the cornerstone of orderly
government. Contrary to the rule stated in Dunagan v. Jones, Tex.Civ.App. (1935), 76
S.W.2d 219, 222, that where a vote is cast for a candidate known to be dead the effect is a
deliberate intent to waste it and a wanton misapplication of it, it was said in Sanders v.
Rice, 41 R.I. 127, 102 A. 914, L.R.A. 1918C, 1153, that votes so cast were not in such willful
defiance of law as to be thrown away but could be counted in support of a showing that the
opposing candidate had not received a majority. This, in short, is the application of what has
come to be known as the American rule, which we adopt as opposed to what is known as
"the English rule," Anno.
opposed to what is known as the English rule, Anno. 133 A.L.R. 319, 340, followed by a
number of the American courts.
Petition denied.
Merrill, C. J., and McNamee, J., concur.
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75 Nev. 6, 6 (1959) Nevada Tax Comm'n v. Mackie
NEVADA TAX COMMISSION, Composed of: Charles H. Russell, Chairman, Robert A.
Allen, Edward Arnold Settelmeyer, Norman D. Brown, Marshall William Deutsch, Horace
Gordon Lathrop, and W. S. Larsh, and the Nevada Gaming Control Board, Composed of:
Robbins E. Cahill, William V. Sinnott, and William G. Gallagher, Appellants, v. BRENT
MACKIE and KENNETH K. HENTON, dba The New Star Hotel and Casino, Respondents.
Nos. 4139 and 4157
January 6, 1959 333 P.2d 985
Appeal by tax commission and cross-appeal by respondents from judgment of Sixth
Judicial District Court, Humboldt County, John F. Sexton, District Judge presiding,
modifying order of tax commission revoking gambling licenses of respondents.
Proceeding for revocation of a gambling license. From a judgment of the trial court
modifying an order of the Tax Commission revoking the licenses of the respondents, the Tax
Commission appeals and the respondents cross-appealed. The Supreme Court, Merrill, C. J.,
held that modification of Commission's order by the district court after the Commission
determined that the operation of a cheating game was reasonable cause for revocation was
unauthorized, that substantial evidence supported a determination that respondents had
operated a cheating game and that alleged inadequate notice was not prejudicial to the
respondents.
See also 74 Nev. 273, 330 P.2d 496.
On appeal by tax commission, judgment reversed and remanded with instructions to
reinstate revocation order of tax commission. Cross-appeal held ineffectual to disturb
such reversal.
Frank R. Petersen, of Reno, for Nevada Tax Commission, and Nevada Gaming Control
Board.
Thomas A. Foley, of Las Vegas; and Richard G. Campbell, of Winnemucca, for Brent
Mackie and Kenneth K. Henton, dba The New Star Hotel and Casino.
1. Licenses.
It is not the province of the courts to decide what shall be reasonable cause for revocation of a license,
and such a determination is an administrative one to be made by the Tax Commission in the exercise of
judgment, though whether reasonable cause for revocation, as the commission may have defined it, exists,
is a question which the courts may review. NRS 463.140, 463.310, subd. 4.
2. Gaming.
Where the Tax Commission has determined that the operation of a cheating game is a reasonable cause
for revocation of a gambling license, that determination is not subject to judicial review in the absence of a
showing that the determination was arbitrary or capricious or for some other reason was beyond the
administrative authority of the Commission. NRS 463.140, 463.310, subd. 4.
3. Gaming.
Where Tax Commission determined that the operation of a cheating game was a reasonable cause for
revocation of a gambling license, modification of the Commission's order by the district court to provide
for a suspension of the license, amounted to administrative rather than judicial action and was beyond the
authority of the district court. NRS 463.140, 463.310, subd. 4.
4. Gaming.
The statute providing that revocation of a gambling license shall be and remain effective until reversed or
modified by a court of competent jurisdiction upon review, applies to such reversal or modification as may
be exercised by the court in a judicial capacity, and does not confer administrative powers upon the court.
NRS 463.310, subd. 6.
5. Gaming.
Substantial evidence supported a determination of the Tax Commission that defendants had been
operating a cheating game so as to justify revocation of their gambling license. NRS 463.140, 463.310,
subd. 4.
6. Gaming.
That evidence before Tax Commission as basis for revocation of the defendants' gambling license,
established only that certain employees of the defendants were guilty of cheating, did not preclude
revocation where the Commission had in effect made the determination that fact that cheating occurred
upon the defendants' premises constituted reasonable cause for revocation of license. NRS 463.140,
463.310, subd. 4.
7. Gaming.
That defendants, whose gambling license was revoked by the Tax Commission, were not, until a few
minutes before the hearing commenced, given a copy of the board's recommendations, does not require a
reversal of the Commission's action where the defendants were not prejudiced by the insufficiency of
notice. NRS 463.140, 463.310, subd. 4.
OPINION
By the Court, Merrill, C. J.:
This matter is before this court on review of action taken by the Nevada tax commission.
The commission revoked the gambling licenses theretofore issued by the state to respondents
as partners in the operation of a gambling enterprise. Judgment of the court below, on review,
modified that order and the commission has appealed from that judgment.
The principal question involved is whether the district court on review has authority to
modify the commission's order by substituting a limited suspension of license for the outright
revocation ordered by the commission.
On May 22, 1958 the respondents were cited to appear before the Nevada gambling
control board and show cause why their license should not be revoked upon the grounds that
they were operating a cheating game and conducting their business in an unsuitable manner.
Hearing was had before the control board on June 10, 12, 16 and 17, 1958. On July 23, 1958
the board formally recommended to the commission the revocation of respondents' licenses.
Hearing before the commission on this recommendation was had that day and on July 26,
1958 the commission entered its order of revocation supported by its findings of fact and
conclusions of law.
On July 28, 1958 respondents filed a petition for review with the court below. Hearing
before the district court was had on this petition on August 8 and 9, 1958, and on the latter
date judgment was rendered modifying the revocation order in three respects: substituting a
60-day suspension for revocation of the license as to twenty-one games, substituting a 30-day
suspension for revocation of the license as to crap games, reversing the revocation as to slot
machines.
The appeal of the commission is taken from this judgment. The commission contends that
the reviewing court is without authority to modify the commission's order in this manner. We
have concluded that the position of the commission has merit and that the judgment below
must be reversed.
NRS 463.140, dealing with the powers and duties of the tax commission, provides in part,
The Nevada tax commission shall have full and absolute power and authority * * * to limit,
restrict, revoke or suspend any license for any cause deemed reasonable by the commission.
The same language is to be found in NRS 463.310(4) dealing with suspension or revocation
of licenses.
[Headnote 1]
In Nevada Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852, this court carefully
delineated the area within which the courts may act in judicial review of commission action.
From that opinion it follows that it is not the province of the courts to decide what shall be
reasonable cause for revocation of license; that such determination is an administrative one to
be made by the commission in the exercise of its judgment based upon its specialized
experience and knowledge. Whether reasonable cause for revocation, as the commission may
have defined it, exists in the particular case, is the question which the courts may review.
[Headnote 2]
The commission has determined that the operation of a cheating game is a reasonable
cause for revocation of license. That determination is not subject to judicial review in the
absence of a showing that the determination was arbitrary or capricious or for some other
reason was beyond the administrative authority of the commission.
review in the absence of a showing that the determination was arbitrary or capricious or for
some other reason was beyond the administrative authority of the commission. Nevada Tax
Commission v. Hicks, supra.
[Headnote 3]
The court below made no express determination upon the question whether the record
supported the finding of the commission that a cheating game had been operated by the
respondents. However, since its judgment provided for suspension of license as to two games,
such a determination appears by necessary implication.
Such being the case, the modification of the commission's order in this case amounted to
administrative rather than judicial action and was beyond the authority of a reviewing court.
[Headnote 4]
Respondents contend that court authority to modify a commission order is expressly
granted by statute. NRS 463.310(6) provides, Any such limitation, revocation or suspension
so made shall be and remain effective until reversed or modified by a court of competent
jurisdiction upon review.
Reading this language in the context of the remainder of the section, the provision for
reversal or modification by a court of competent jurisdiction must be held to apply to such
reversal or modification as may be exercised by the court in a judicial capacity. It cannot
reasonably be held to confer administrative powers upon the court.
Upon the appeal of the tax commission, the judgment must be reversed.
[Headnote 5]
Respondents have taken a cross-appeal from the judgment of the court below, contending
that there is no substantial evidence to support a determination that they had operated a
cheating game.
There was direct and positive testimony by eye witnesses that they had observed cheating
in the twenty-one games operated by respondents.
games operated by respondents. The witnesses qualified themselves as persons of knowledge
and experience in matters of gambling and in methods of cheating at cards. This testimony, if
credible, constituted substantial evidence in support of the commission's findings. The
problem, then, is not one of substance but one of credibility.
Respondents contend that this testimony was rendered incredible by cross examination.
They point to many instances of inconsistencies and improbabilities. There is no need to
detail these matters. Upon the precise points involved they may well have affected the weight
of the testimony. They cannot, however, be said to have destroyed the probative value of the
evidence of cheating or to have rendered it incredible as a matter of law. These matters, then,
posed questions of weight and credibility which it was the function of the control board and
the tax commission to resolve in their capacities as finders of the facts. It can hardly be
questioned that their specialized knowledge and experience are of peculiar value in the
performance of these functions upon factual issues such as are here involved.
Their decision to believe the testimony that cheating was observed is a determination with
which we shall not interfere upon review.
[Headnote 6]
Respondents contend that even though this testimony be accepted it only establishes that
certain employees were guilty of cheating. There is no evidence whatsoever, they assert, that
they themselves knew of such cheating and permitted it or that they themselves were guilty of
such practices.
Such lack of proof might well serve to protect respondents against any criminal charge of
cheating. It cannot, however, affect our decision. The tax commission in effect has made the
determination that the fact that cheating occurred upon respondents' premises constitutes
reasonable cause for revocation of license. They have thus imposed the duty upon licensees to
see that cheating does not occur. This determination, as we have already noted, is an
administrative one with which we shall not interfere in the absence of any showing that it
was arbitrary or capricious.
already noted, is an administrative one with which we shall not interfere in the absence of any
showing that it was arbitrary or capricious.
[Headnote 7]
Finally respondents upon their cross-appeal contend that no adequate notice was given
them of the hearing before the commission upon the recommendations of the control board.
They were advised, well in advance, of the fact that a hearing would be had. It was not until a
few moments before the hearing commenced, however, that a copy of the board's
recommendations was given to them.
It must be conceded that such notice can hardly be regarded as adequate. However, an
examination of the record in this matter and of the transcript of proceedings before the tax
commission demonstrates conclusively that the respondents were not prejudiced by any
insufficiency of notice. Their attacks upon the testimony received by the control board were
as effectively made before the commission as they have subsequently been made before the
courts. Furthermore, no request for a continuance was made by respondents and they
voluntarily proceeded with the hearing before the tax commission regardless of any
insufficiency of the notice.
We conclude that there is no merit in the cross-appeal of these respondents and that such
cross-appeal cannot affect the decision of this court upon the tax commission's appeal.
Reversed and remanded with instructions that the order of revocation of license issued by
the Nevada tax commission be reinstated and affirmed.
Badt, J., concurs.
(Note: McNamee, J., having become a member of the court after argument and submission
of the case, did not participate in the foregoing opinion.)
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75 Nev. 13, 13 (1959) Fishman v. Las Vegas Sun
FRANK FISHMAN, Appellant, v. LAS VEGAS SUN, Inc.,
a Nevada Corporation, Respondent.
No. 4162
January 8, 1959 333 P.2d 988
Appeal from Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Civil action. From a judgment of the trial court an appeal was taken. The Supreme Court,
Per Curiam, held that the respondent's motion to supplement the record should be granted and
that an appeal without supersedeas would not deprive the judgment creditor of its right to
execute upon its judgment or to invoke supplementary proceedings or discovery.
On preliminary motions. Orders in accordance with opinion.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondent.
1. Appeal and Error.
Where upon service and filing of notice of appeal, together with the undertaking, appellant filed a
designation of the record on appeal specifying the reporter's transcript of testimony which was omitted by
the clerk and which omission was not discovered by appellant until subsequently, the appellant's motion to
supplement the record by adding the transcript should be granted. NRCP 75(h).
2. Appeal And Error.
An appeal to the Supreme Court without supersedeas cannot of itself deprive the judgment creditor of the
right to execute upon its judgment or of its right to invoke the aid in the district court of the rule with
reference to execution and proceedings supplementary to the judgment and the rules with reference to
discovery. NRCP 37(a, b, d), 69 and subd. a.
OPINION
Per Curiam:
[Headnote 1]
Appellant has moved this court for an order granting leave to supplement the record on
appeal by including therein the reporter's transcript of testimony taken at the trial.
therein the reporter's transcript of testimony taken at the trial. The motion is based on Rule
75(h) NRCP and is supported by affidavit showing that upon the service and filing of notice
of appeal, together with undertaking, appellant filed a designation of the record on appeal
specifying, among other things, the reporter's transcript of the testimony, which was however
omitted by the clerk, which omission was not discovered by appellant until October 30, 1958.
Under the circumstances we feel that the record should be supplemented by adding the
transcript. Accordingly the appellant's motion for leave to supplement the record by including
the reporter's transcript of testimony is granted.
Respondent has moved this court under Rule 37(d) NRCP for an order striking the
appellant's pleadings and dismissing the appeal for appellant's willful failure to file answers
to written interrogatories. In support of this, respondent notes, first, that appellant posted no
supersedeas bond at any time after the judgment, and that thereupon respondent invoked the
provisions of Rule 69(a) on proceedings supplementary to and in aid of the judgment by
requiring answers to interrogatories concerning the property of the appellant judgment debtor
and that appellant not only failed to answer the interrogatories but failed to answer or respond
to a subsequent letter again requesting such answers.
[Headnote 2]
Despite the fact that the appeal to this court has removed from the district court's
jurisdiction the determination of any matters involved in the appeal, it is nonetheless clear
that the appeal to this court, without supersedeas, cannot of itself deprive the respondent
judgment creditor of the right to execute upon its judgment or of its right to invoke the aid, in
the district court, of the provisions of Rule 69 with reference to execution and proceedings
supplementary to and in aid of the judgment and under the provisions of Rule 37(a) and (b)
with reference to discovery. For such purposes the district court, under the circumstances
recited, retains jurisdiction to make such orders as may be necessary and proper under
the rules.
court, under the circumstances recited, retains jurisdiction to make such orders as may be
necessary and proper under the rules. In our view such remedies are adequate to meet the
present conditions.
It is accordingly ordered that respondent's motion is denied, but without prejudice to the
right of respondent to pursue the remedies available to it before the trial court under Rules 69
and 37(a) and (b) NRCP.
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No. 4162
June 18, 1959 341 P.2d 102
On the Merits
Action to recover cost of hotel advertising from principal stockholder of hotel corporation.
The trial court entered judgment for plaintiff and against one of the defendants, and that
defendant appealed. The Supreme Court, McNamee, J., held that evidence sustained finding
that plaintiff never intended to give credit to hotel corporation but extended credit to
stockholder individually and provided the hotel advertising for the stockholder individually,
so that there was not such an agreement to answer for the debt of another as would be
unenforceable under the statute of frauds.
Affirmed as modified.
See also 75 Nev. 13, 333 P.2d 988.
Morton Galane, of Las Vegas, for Respondent.
1. Frauds, Statute of.
In action to recover cost of hotel advertising from principal stockholder of hotel
corporation, evidence sustained finding that plaintiff never intended to give credit to
hotel corporation but extended credit to stockholder individually and provided the hotel
advertising for the stockholder individually, so that there was not such an agreement to
answer for the debt of another as would be unenforceable under the statute of frauds.
NRS 111.220.
2. Assignment.
In action to recover on an account for advertising allegedly assigned to plaintiff, there
was no evidence to justify a finding that the account had ever been assigned to plaintiff.
OPINION
By the Court, McNamee, J.:
This is an appeal from judgment in favor of Las Vegas Sun, Inc., plaintiff below and
against Frank Fishman, one of the defendants below for the sum of $13,491.57.
Respondent's claim results from two alleged accounts for advertising, one in favor of Las
Vegas Sun, Inc. in the sum of $12,220.07 and the other in favor of Las Vegas Television, Inc.
in the sum of $1,271.50 allegedly assigned to the respondent.
[Headnote 1]
There is no dispute with respect to the reasonableness of the claims; appellant's chief
contention is that these accounts were debts of Royal Hotel, Inc., that he is not responsible for
them, and that if in fact he had agreed to be responsible for them, such an agreement would
amount to a promise to answer for the debt or default of another and therefore unenforceable
under the statute of frauds. NRS 111.220.
It appears from the evidence that appellant was the owner of all of the stock of the Royal
Nevada, Inc., a corporation, until April 1955 when one-third of said stock was transferred to
his wife under a property settlement agreement; that Royal Nevada, Inc. was the owner of the
property known as the Royal Nevada Hotel, and that the Royal Nevada Hotel was operated by
Royal Hotel, Inc., a separate corporation under a lease from Royal Nevada, Inc.
It does not appear what interest, if any, appellant Fishman had in Royal Hotel, Inc.
It is recited in the court's Findings of Fact:
That on or about the 1st day of April, 1955, plaintiff and defendant, Frank Fishman,
agreed that the plaintiff should furnish the defendant, Frank Fishman, certain advertising for
which Frank Fishman impliedly agreed to pay the reasonable value thereof. While Frank
Fishman personally obligated himself to pay the reasonable value of such advertising, the said
advertising was for the use and benefit of the Royal Nevada, Inc.; that at the said time the
defendant, Frank Fishman, was president, director, and owner of one hundred percent of
the outstanding stock of Royal Nevada, Inc., and Royal Nevada, Inc., was the alter-ego or
second self of the said Frank Fishman; that as a result of the said agreement the said
plaintiff furnished the defendant, Frank Fishman, between April 4, 1955, and January 31,
1956, advertising, for which there is a net balance due of the reasonable value of Twelve
Thousand Two Hundred Twenty and 07J100 {$12,220.07) Dollars."
for the use and benefit of the Royal Nevada, Inc.; that at the said time the defendant, Frank
Fishman, was president, director, and owner of one hundred percent of the outstanding stock
of Royal Nevada, Inc., and Royal Nevada, Inc., was the alter-ego or second self of the said
Frank Fishman; that as a result of the said agreement the said plaintiff furnished the
defendant, Frank Fishman, between April 4, 1955, and January 31, 1956, advertising, for
which there is a net balance due of the reasonable value of Twelve Thousand Two Hundred
Twenty and 07/100 ($12,220.07) Dollars.
The evidence relevant to such findings is conflicting. In support thereof, Herman Milton
Greenspun, president of respondent corporation, testified that before any of the indebtedness
which forms the basis of the action below arose, he had a conversation with Fishman relative
to credit to be extended by respondent to the Royal Nevada Hotel for advertising, at which
time appellant stated to him: Frank Fishman's credit is good and any advertising you give
will be to Frank Fishman * * * Frank Fishman is the Royal Nevada and the Royal Nevada is
Frank Fishman, so any advertising you give you are giving to me.
Greenspun further testified: I did ask him about these people who were from St. Louis, I
think it was Mr. Mall and Sid Wyman who were going to operate the place and he said It
does not make any difference who operates, they are clerks * * * Frank Fishman is the Royal
Nevada and the Royal Nevada is Frank Fishman, I am the boss over everything there, I am the
boss.'
Later and after the indebtedness amounted to more than $5,000, when Greenspun told
Fishman he was concerned about the hotel's position, Fishman replied: You have no cause
for concern * * * You are doing business with Frank Fishman and Frank Fishman will always
need advertising, because these people come and go but Frank Fishman will stay * * * I need
advertising and the Royal Nevada needs the advertising * * * they may go out tomorrow
morning, but I can bring the Desert Inn crowd in here and operate the gambling, but I own
the Royal Nevada * * * the Royal Nevada needs the advertising so don't worry about your
money, you are doing business with Frank Fishman and you are one man
I will never stick, I don't care what happens to anybody, you are one man I will never
stick
* * * You are giving the advertising to me personally and no one else."
gambling, but I own the Royal Nevada * * * the Royal Nevada needs the advertising so don't
worry about your money, you are doing business with Frank Fishman and you are one man
I will never stick, I don't care what happens to anybody, you are one man I will never stick
* * * You are giving the advertising to me personally and no one else.
This latter conversation took place before William Miller, the then general manager of
Royal Nevada Hotel. In his deposition, Miller testified that Fishman was the owner of the
Royal Nevada Hotel and his version of this conversation is as follows:
Hank Greenspun was telling us that he could not give us any more advertising because he
had not been paid; and Frank Fishman told Hank that he was the owner of the Royal Nevada
and that he would see that Hank received the money; if he did run any more ads or advertising
and that he would be personally responsible to Hank Greenspun if the Royal Nevada did not
pay. Hank said under those conditions he would continue the ads on the Royal Nevada.
Fishman also said that as he was the owner of the Royal Nevada, he was responsible for
everything and that he was the one who would suffer if the Royal Nevada was not a success.
Then I left, in fact, we all left and that was the end of the conversation.
After Miller left, Fishman said to Greenspun: * * * if it isn't Bill Miller it will be the
Desert Inn crowd. * * * I have negotiated with them, but the Royal Nevada will always
remain open because Frank Fishman is the Royal Nevada and the rest of these men are just
clerks, their names are on the license but they are just clerks. Frank Fishman is the Royal
Nevada and like I told you, Hank, I will never stick you.
This evidence even though contradicted by Fishman, whose testimony the trial court was
free to reject, sufficiently supports said findings. The fact that billings were made out to
Royal Nevada Hotel, rather than to Frank Fishman, is immaterial in view of the testimony
that the billings for the several Las Vegas hotels, for purposes of convenience and
identification, were made out in the trade name of the particular hotel to which they
applied unless otherwise directed.
out in the trade name of the particular hotel to which they applied unless otherwise directed.
Since it is apparent from the evidence that appellant was the person with whom respondent
was dealing and never intended to give credit to Royal Hotel, Inc., we are not concerned with
any phase of the statute of frauds.
The following authorities support this conclusion:
Forster-Davis Motor Corporation v. Abrams, 175 Okl. 464, 53 P.2d 569; Seder v.
Kozlowski, 304 Mass. 367, 23 N.E.2d 880.
The recent case of Swartout v. Grover Collins Drilling Mud Engineers and Materials, 75
Nev. 297, 339 P.2d 768, 769, while not involving the statute of frauds is consistent with our
conclusion herein. There we had this to say:
At the conclusion of the trial the court said from the bench: In this case the court finds
Mr. Swartout has contended in court the claims are the obligation of the Bonanza Oil
Company; that as an officer of the company, and as an employee also, he was authorized to
obligate the company for the amounts of these claims * * *.
The evidence shows Swartout held himself out as principal to the plaintiffs and that
plaintiffs were dealing with him only and not with the company. He is now estopped because
of his conduct in this regard from denying the fact that he was acting as principal and would
be personally responsible for the obligations. This court could come to no other reasonable
conclusion. Nobody is going to deal with a corporation they know nothing about. The fact he
might also be acting as agent for an undisclosed principal, which he in fact was, evidently
from his testimony, does not negate his liability. It merely adds undisclosed liability.'
This brief decision from the bench was carried out in the formal findings, conclusions,
and judgment.
Appellant points to parts of the transcript as evidence of the fact that the respondents
were aware of Bonanza Oil Company, appellant's corporation, not only after respondents
extended credit but also at times when the credit was extended.
the credit was extended. We may assume this to be so. We may even assume further,
arguendo, that Bonanza Oil Company was a disclosed principal, that it had authorized
appellant to act, and that appellant's agency was known to respondents. Such situation would
not diminish the legal effect of appellant's express undertaking to pay or his express assertion
of his personal responsibility for payment, as a result of which the credit was extended. His
liability is predicated not upon his agency but upon his contract obligation.
[Headnote 2]
With respect to the claim of respondent for $1,211.50 allegedly assigned to it by Las
Vegas Television, Inc., it is unnecessary to consider the merits of such claim because, as
pointed out by appellant, there is no evidence to justify a finding that said claim was ever
assigned to respondent. Judgment based in part thereon was error. The judgment therefore
must be modified by eliminating the amount of this claim.
It is ordered that the judgment of the district court be modified by reducing it from the sum
of $13,491.57 to the sum of $12,220.07. As so modified, judgment affirmed. No costs are
allowed.
Merrill, C. J., and Badt, J., concur.
____________
75 Nev. 20, 20 (1959) Lukey v. Thomas
JACK LUKEY, dba Nevada Plumbing & Heating Company, Appellant, v. MERNA M.
THOMAS and RALPH H. THOMAS, Respondents.
No. 4133
January 9, 1959 333 P.2d 979
Appeal from the Second Judicial District Court, Washoe County; John F. Sexton,
Presiding Judge, Department No. 3.
Suit on promissory note. Plaintiff obtained default judgment, but the lower court granted
defendant's motion to vacate the default judgment and plaintiff appealed. The Supreme
Court, McNamee, J., held that evidence limited to attempt to justify delay in answering
without any showing of nature of defense was insufficient to justify lower court's action
in setting aside default judgment.
motion to vacate the default judgment and plaintiff appealed. The Supreme Court, McNamee,
J., held that evidence limited to attempt to justify delay in answering without any showing of
nature of defense was insufficient to justify lower court's action in setting aside default
judgment.
Reversed.
Richards and Schindler, of Reno, for Appellant.
Leonard T. Howard, of Reno, for Respondents.
1. Appeal and Error; Judgment.
Motion to set aside default and vacate judgment resulting therefrom is addressed largely to sound
discretion of the court, but discretionary action of court will not be sustained when no competent evidence
exists to support that action. NRCP 55(c), 60(b, c).
2. Judgment.
Affidavit in support of motion to vacate default judgment, alleging verbal stipulation to extend time for
answering but not stating duration of extended period was too vague to amount to evidence. NRCP 55(c),
60(b, c).
3. Judgment.
Affidavit in support of motion to vacate default judgment, that default and judgment were entered as
result of inadvertence, surprise and excusable neglect and that defendants had a good and proper defense
stated mere conclusions and had no evidentiary value. NRCP 55(c), 60(b, c).
4. Judgment.
Where default was not taken until 23 days after time to answer had expired, and defendant's motion to
vacate default judgment was not filed until 131 days after the default had been entered, evidence limited to
attempt to justify delay in answering without any showing of nature of defense was insufficient to justify
lower court's action in setting aside default judgment. NRCP 55(c), 60(b, c).
OPINION
By the Court, McNamee, J:
Appellant filed suit upon a promissory note. Summons and complaint were personally
served upon the defendant October 28, 1957. When no appearance had been made by either
defendant, plaintiff caused their default to be entered on December 12, 1957 and on that day
he had judgment entered for the amount of his claim.
judgment entered for the amount of his claim. This was twenty-three days after default could
have been taken.
On April 22, 1958 defendants moved to set aside the default and to vacate the judgment,
for the reason of the inadvertence, surprise and excusable neglect of the defendants. The
motion was granted and this is an appeal from the order granting such relief.
[Headnote 1]
This court has repeatedly held that a motion to set aside a default and vacate the judgment
resulting therefrom is addressed largely to the sound discretion of the court and will not be
disturbed on review, unless there has been abuse of such discretion. This discretion is a legal
discretion, however, and cannot be sustained where there is no competent evidence to justify
the court's action. Haley v. Eureka Co. Bank, 20 Nev. 410, 22 P.2d 1098.
Defendant's written motion and notice thereof stated that it would be based on the affidavit
of Leonard T. Howard, attorney for defendants, filed therewith and upon Rules 55 and 60,
NRCP.
1
Although Rule XI of Rules of the District Court specifies the manner of making
motions,2 the court minutes reveal only the following:
____________________

1
NRCP 55(c) For good cause shown the court may set aside an entry of default and, if a judgment by
default has been entered, may likewise set it aside in accordance with Rule 60.
NRCP 60(b) On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; * * *. The motion shall be made within a reasonable time, and for reasons (1) and
(2) not more than six months after the judgment, order, or proceeding was entered or taken. * * * The procedure
for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent
action.
(c) When a default judgment shall have been taken against any party who was not personally served with
summons and complaint, either in the State of Nevada or in any other jurisdiction, and who has not entered his
general appearance in the action, the court, after notice to the adverse party, upon motion made within six
months from the date of rendition of such judgment, may vacate such judgment and allow the party or his legal
representatives to answer to the merits of the original action. When, however, a party has been personally served
with summons and complaint, either in the State of Nevada or in any other jurisdiction, he must make his
application to be relieved from a default, a judgment, an order, or other proceeding taken against him, or for
permission to file his answer, in accordance with the provisions of subdivision (b) of this rule.
Although Rule XI of Rules of the District Court specifies the manner of making motions,
2
the court minutes reveal only the following:
Counsel for defendants made his motion pursuant to notice of motion on file. The motion
was argued by counsel for the respective parties. The Court ordered that the defendants'
motion to vacate a default judgment be granted and the defendants have five days within
which to file an answer.
While the minutes do not specifically state that the order was based on any evidence, we
assume from the court's written order signed and filed the day subsequent to the hearing, that
it was based on the three affidavits on file.
3

These three affidavits consisted of (1) the affidavit of defendants' counsel mentioned in the
written motion, (2) said counsel's amended affidavit filed subsequent to the filing of the
motion, and (3) the counter-affidavit of plaintiff's counsel, Donnell Richards, in opposition to
said motion. They constitute the only evidence upon which the lower court could exercise its
discretion in determining whether the defendants had a good defense and were not guilty of
inexcusable delay.
We are not concerned with the third affidavit, as it is in effect a mere denial of the other
two.
____________________

2
Rule XI Upon reading and filing the notice of motion, with due proof of the 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.

3
The court's written order entitled Order setting aside and vacating the default, and default judgment,
recites the following:
The respective affidavits of the defendants and plaintiff having been reviewed by this Court and this Court
having heard oral arguments of the respective counsel; * * *
The first affidavit states:
* * * the defendants did inform the affiant, their attorney, that they felt they had a good
and proper defense to the action, and that there were various papers and documents
concerning this transaction which would have to be located in voluminous files concerning
their involvement with the corporation known as Thomas G. Stone Enterprises, Inc.
That the subject matter of this suit was a result of a transaction with said Thomas G.
Stone Enterprises, Inc. That shortly following October 29, 1957, the defendants did inform
the affiant that they were having difficulties in obtaining the documents and papers
concerning the transaction, since they were in storage, but they were doing their best to obtain
them. Following this your affiant, attorney for defendants, did stipulate with counsel for
plaintiff to extend the time for answering or otherwise pleading to the complaint. That
subsequent thereto the defendants did obtain and bring into the office of affiant and attorney
for defendants, certain papers and documents pertaining to the transaction.
That during the interim period, and following the delivery of said documents by the
defendants to their attorney, various contacts were made with the attorney for the plaintiff,
informing him that the answer or other pleadings to the complaint would be filed as quickly
as possible.
That the attorney for plaintiff did state, in what was taken to be a joking manner, that a
default had been entered against the defendants, and that after a few of such contacts the
plaintiff's counsel did definitely state that he had had a default entered against the defendants
upon the insistence of his client; and this was the first knowledge that affiant and attorney for
defendants had that a default had been entered against the defendants.
[Headnote 2]
The foregoing part of said affidavit has no probative value of asserting any defense to the
action. With respect to showing a justifiable delay, the pertinent averments show just the
opposite. True, a stipulation to extend time is alleged, but if in fact there were such a
stipulation, defendants would be relying on a verbal stipulation and one so vague as to
the duration of the extended period that it amounts to no evidence at all.
is alleged, but if in fact there were such a stipulation, defendants would be relying on a verbal
stipulation and one so vague as to the duration of the extended period that it amounts to no
evidence at all. Haley v. Eureka Co. Bank, supra; Stretch v. Montezuma M. Co., 29 Nev. 163,
86 Pac. 445.
[Headnote 3]
The concluding portion of this affidavit states merely legal conclusions and this has no
evidentiary value.
4

Defendants said amended affidavit alleges that affiant, defendants' counsel:
* * * at all times noted herein affiant was practicing law individually, other than in an
association and that a very important, detailed and complicated legal action was filed on or
about the 27th day of November, 1957, which involved a considerable amount of money,
together with certain lumber held as security. That immediately following the legal action
there were numerous creditors' rights involving chattel mortgages, attachments and
third-party claims involved in the legal action, which required practically full time attention
on behalf of affiant. That this legal action did encompass a period of time, which was a direct
cause in affiant's neglect in failing to answer plaintiff's complaint.
This is some evidence and the only evidence relevant to defendants' contention that their
delay was excusable.
Whether such evidence in itself is sufficient, in the absence of any showing of a proposed
defense, to justify the lower court's action, is the sole question on appeal.
If we assume without so holding, that this evidence was sufficient to warrant a finding of
excusable delay, nevertheless in the absence of any showing by competent evidence of what
the defense would be in the event defendants were permitted to answer, the court was not
justified in assuming merely from the arguments of counsel that any defense in fact
existed, and furthermore it would, under such circumstances, be depriving itself of its
function to pass on the merits of any defense as could have been properly presented.
____________________

4
* * * That affiant and attorney for defendants was surprised that a default and judgment had been entered
against the defendants, and hereby alleges to the Court that said default and judgment were entered as a result of
inadvertence, surprise and excusable neglect on the part of affiant and attorney for defendants, and in the opinion
of the affiant, the defendants have a good and proper defense to the action, and that their right to a day in court
has been jeopardized as a result.
defendants were permitted to answer, the court was not justified in assuming merely from the
arguments of counsel that any defense in fact existed, and furthermore it would, under such
circumstances, be depriving itself of its function to pass on the merits of any defense as could
have been properly presented.
[The] judicial tendency to grant relief from a default judgment, * * * does not imply that
the courts will or should always grant relief from a default judgment, * * *. Litigants and their
counsel may not properly be allowed to disregard process or procedural rules with impunity.
Lack of good faith or diligence or lack of merit in the * * * proposed defense where a default
judgment is involved, and other related factors may warrant a denial of the motion for relief
from the judgment. Moore's Federal Practice, Vol. 7, 2d Edition, pp. 224-225.
[Headnote 4]
In view of the extended delay (default taken 23 days after time to answer had expired, and
the motion of defendants for relief having been filed 131 days after the default was entered),
the evidence presented herein which was limited to an attempted justification of the delay,
without any showing of the nature of the defense, if any, was insufficient to justify the lower
court's action in granting defendants' motion.
The order of the district court is reversed.
____________
75 Nev. 27, 27 (1959) Hanson v. Nye County Commissioners
NORMAN E. HANSON, LINDSAY SMITH, A. F. REVERT and MELVIN G. EADS,
Appellants, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
NYE, SOLAN TERRELL, STEVEN L. BALLIET and NICK BANOVICH, Respondents.
No. 4136
January 13, 1959 333 P.2d 994
Appeal from the Fifth Judicial District Court, Nye County; Peter Breen, Judge.
Proceeding in mandamus to compel the board of county commissioners to comply with the
statute requiring the county commissioners to divide the county into commissioner districts
whenever 20 percent or more of the qualified electors of any county shall petition to that
effect. From a judgment of the lower court the petitioners appealed. The Supreme Court,
McNamee, J., held, inter alia, that the statute is not void for uncertainty because of failure to
designate means by which to determine the number of qualified electors at a given time, and
the duties the statute imposed upon the board of county commissioners when a petition in
proper form is presented must be performed, and insofar as such duties require an
administrative determination, it is incumbent on them to make such determination from
whatever reasonable evidence exists whether the petition is signed by at least 20 percent of
qualified voters in county.
Reversed with directions.
(Petition for rehearing denied February 16, 1959.)
Springer & McKissick, of Reno, for Appellants.
William P. Beko, District Attorney, Nye County, for Respondents.
1. Counties; Statutes.
The statute requiring county commissioners to divide county into districts whenever 20 percent or more
of the qualified electors shall serve petition is not void for uncertainty because of failure to designate
means by which to determine the number of qualified electors at a given time, and the duties the statute
imposes upon board of county commissioners when a petition in proper form is
presented must be performed, and insofar as such duties require an administrative
determination, it is incumbent on them to make such determination from whatever
reasonable evidence exists whether the petition is signed by at least 20 percent of
qualified voters in county.
the statute imposes upon board of county commissioners when a petition in proper form is presented must
be performed, and insofar as such duties require an administrative determination, it is incumbent on them
to make such determination from whatever reasonable evidence exists whether the petition is signed by at
least 20 percent of qualified voters in county. NRS 244.050, subd. 1.
2. Counties.
Under statute, requiring county commissioners to divide county into districts whenever 20 percent or
more of the qualified electors shall serve petition, by its failure to provide a method or guidepost by which
such determination might be made, legislature must be deemed to have authorized county commissioners to
avail themselves of any reasonable method. NRS 244.050, subd. 1.
OPINION
This is a proceeding in mandamus instituted in the lower court to compel the board of
county commissioners of Nye County to comply with sec. 244.050, Nevada Revised Statutes,
which requires the county commissioners to divide the county into three commissioner
districts whenever 20 percent or more of the qualified electors of any county petition them to
that effect.
On February 3, 1958, 600 qualified electors of Nye County petitioned their county
commissioners to divide Nye County into three districts in accordance with the provisions of
said statute.
1
It was stipulated that the petition is in proper form. On June 25, 1958, the board
formally resolved to take no action on the petition, stating as its reason that there was no
"correct, proper, or accurate method of procedure for determining" as a fact whether 20
percent of the qualified electors had signed the petition.
____________________

1
Sec. 244.050 NRS 1. Whenever 20 percent or more of the qualified electors of any county in this state
shall petition the board of county commissioners of their county to that effect, the county commissioners of such
county shall, on or before the 1st Monday in July preceding any general election, divide the county into 3
districts to be known as Commissioner Districts. Such division shall be made to conform to the established
boundaries of election precincts or wards, and each election precinct or ward shall be wholly within one of the
commissioner districts herein provided. Each commissioner district shall embrace, as near as may be, one-third
of the voting population of the county, to be determined by the vote cast at the last general election, and shall
consist of adjoining precincts; but in case not more than three election precincts or wards exist in the county,
then each election precinct or ward shall constitute a commissioner district.
formally resolved to take no action on the petition, stating as its reason that there was no
correct, proper, or accurate method of procedure for determining as a fact whether 20
percent of the qualified electors had signed the petition. The commencement of these
proceedings is the result of such action.
From an order denying the relief sought, appellants appeal.
The lower court in so ruling held that the said statute was void for uncertainty and so
incomplete it could not be executed.
The problem in this case is a result of the statutory use of the words qualified electors
without the designating of any means by which to determine the number of qualified electors
at a given time.
Three years prior to the enactment of the statute this court had pointed out the distinction
between qualified electors and qualified voters in holding that a qualified voter is a
qualified elector who has registered to vote, and that registration is not an electoral
qualification. State ex rel. Boyle v. Board of Examiners, 21 Nev. 67, 24 P. 614, 9 L.R.A. 385.
It is respondents' contention that since it is impossible to determine accurately the number
of qualified electors in a county at any specified time, they could not find as a fact that 600
qualified electors represented 20 percent of the qualified electors of the county, and that
therefore they would take no action on the petition.
This statute has been in existence since 1893 and has been cited three times by this court.
State ex rel. Fall v. Kelso, 46 Nev. 128, 208 P. 424; State ex rel. Kearns v. Streshley, 46 Nev.
199, 209 P. 712; McDonald v. Beemer, 67 Nev. 419, 220 P.2d 217.
In State ex rel. Fall v. Kelso, supra, the court, in holding invalid the action of the county
commissioners dividing Mineral County into three election districts under said statute where
the record failed to show that the board found as a fact that 20 percent of the qualified
electors petitioned for such a division, said: In the instant case it does not appear from the
record of the meeting of the board that the so-called petition was considered by the board, or
that it was even presented to it."
sidered by the board, or that it was even presented to it.
In State ex rel. Kearns v. Streshley, supra, the court said [46 Nev. 199, 204, 209 P. 712,
713]:
What we said in the very recent matter of State ex rel. Fall v. Kelso, 46 Nev. 128, 208
Pac. 424, must necessarily control. In that case, following former decisions of this court, we
adhered to the well-established rule that a board of county commissioners exercises limited
and special powers, and that, when the power of such a board to do a certain thing is
questioned, the record must show affirmatively all the facts necessary to give authority to the
board to act. The statute in question in the present proceeding requires 20 per cent or more of
the qualified electors of a county must petition the board of county commissioners to divide
the county, to give it power to take such action. In keeping with the rule recognized in the
case mentioned, it must affirmatively appear from the record that the board of county
commissioners found as a fact that 20 per cent of the qualified electors of Lander County
signed the petition.
The McDonald case, supra, held unconstitutional a 1933 statute regulating the manner in
which Washoe County could be divided into commissioner districts, and stated that that
county could be divided only under the provisions of said 1893 act (NRS 244.050).
Although the court did not deem it necessary in any of these three cases to pass on the
constitutionality of the statute in question, it did in effect point out that a board of
commissioners was required to follow the procedure specified therein before its action could
be legal.
We feel that this statute gives the power to the county commissioners to divide the county
into districts whenever 20 per cent or more of the qualified electors shall so petition; that it
is mandatory that they exercise such power; and that in determining whether the mandatory
provisions of the statute have become operative it becomes necessary for them to decide from
whatever reasonable evidence exists whether the petition is signed by at least 20 percent of
the qualified voters in Nye County as of February 3, 1958.
* * * for the board to do what the statute apparently requires it to do may sometimes
demand qualities of a high judicial order; still the inquiry is a preliminary one for
administrative purposes only. It adjudicates no private right; establishes no precedent; settles
no principle. The difference between such an exercise of decisional faculty and that involved
in the common everyday affairs of the board is of degree merely and not of kind. State ex
rel. Lang v. Furnish, 48 Mont. 28, 134 P. 297, 299.
The question in the Furnish case was whether the statutory language specifying a petition
signed by 50 percent of qualified electors meant 50 percent of the persons residing in the
territory who possess the constitutional qualifications of electors, or by 50 percent of such
electors who have registered. In answering this question the court said:
Our own conclusion is that under the Leighton Act, and under the present act, the
provision in question requires the board to determine whether a petition for exclusion, at the
time it was filed, contained the genuine signatures of one-half the qualified electors of the
territory, regardless of registration, and that for such determination the board may resort to
whatever competent evidence may be at hand, including the great register so far as it avails.
In Clayton v. Hill City, 111 Kan. 595, 207 P. 770, in commenting on this problem, the
court said:
True there are difficulties in ascertaining the exact number of qualified electors of a given
city or other governmental body, but they are not insuperable. Many statutes require petitions
to be signed by a certain proportion of the electors of a district without indicating how the
total number is to be arrived at, yet their administration has not proven impracticable on that
account.
[Headnote 1]
We conclude that the statute in question is not void, that the duties it imposes upon a board
of county commissioners when a petition in proper form is presented to them must be
performed, and, insofar as such duties require an administrative determination, it is
incumbent on them to make such determination.
to them must be performed, and, insofar as such duties require an administrative
determination, it is incumbent on them to make such determination.
[Headnote 2]
It is obvious that such a determination cannot be made with precision. This fact must have
been apparent to the legislature. By its failure to provide a method or guidepost by which
such a determination might be made (as has been done in other instances) the legislature, in
effect, must be deemed to have authorized the county commissioners to avail themselves of
any reasonable method.
The judgment and order of the district court are reversed, and the court is directed to issue
a peremptory writ of mandamus requiring the respondents to make a determination whether
20 percent or more of the qualified electors in Nye County as of February 3, 1958, have
signed the petition, and if so to divide the county pursuant to said statute; otherwise not.
____________
75 Nev. 32, 32 (1959) Bowler v. Leonard
MILTON A. BOWLER and MILTON D. BOWLER, Appellants, v. STELLA B. LEONARD,
Formerly Known as Stella B. Leonard Belanger, Now Stella B. Bryson, Respondent.
No. 4095
January 16, 1959 333 P.2d 989
Appeal from judgment of the First Judicial District Court, Churchill County; Taylor H.
Wines, Presiding Judge. Judgment reduced from $10,300 to $7,200.
Action presenting issue as to title to a dairy herd which had been wrongfully sold by
plaintiff's husband. From adverse judgment of the trial court the subsequent purchasers of the
cattle appealed. The Supreme Court, Merrill, C. J., held that where value of dairy herd
belonging to wife and wrongfully sold by her husband was valued at $10,300 and there
was a mortgage against the herd in sum of $3,000 which was discharged by the
purchaser, any rights which purchaser or subsequent owners of herd had against wife
were wholly dependent upon wife's prevailing and claim by subsequent purchasers for
$3,100 related to extent of injury actually suffered by the wife and was not barred by
statute of limitations, and wife was only entitled to recover value of herd less mortgage
which had been paid off.
Merrill, C. J., held that where value of dairy herd belonging to wife and wrongfully sold by
her husband was valued at $10,300 and there was a mortgage against the herd in sum of
$3,000 which was discharged by the purchaser, any rights which purchaser or subsequent
owners of herd had against wife were wholly dependent upon wife's prevailing and claim by
subsequent purchasers for $3,100 related to extent of injury actually suffered by the wife and
was not barred by statute of limitations, and wife was only entitled to recover value of herd
less mortgage which had been paid off.
See also 72 Nev. 165, 298 P.2d 475.
As so modified, judgment affirmed.
(Reporter's Note: Rehearing granted February 24, 1959. Upon rehearing the amount of the
judgment was further reduced in accordance with the written stipulation of the parties.)
Vargas, Dillon & Bartlett and Alex A. Garroway, of Reno, for Appellants.
Sinai and Sinai, of Reno, for Respondent.
1. Husband and Wife.
In action involving title to a dairy herd which had been decreed to be the separate property of plaintiff in
a divorce action brought by plaintiff, who had never filed any inventory of separate property but who prior
to commencement of divorce had secured an injunction against her husband dealing with the herd in any
manner, evidence was insufficient to support defendants' claim that husband acted as plaintiff's actual agent
in selling the herd to another person from whom the defendants purchased the herd. NRS 123.160.
Under statute providing that a full and complete inventory of separate property of wife must be made out
and signed by her and shall be recorded and that failure to file for record an inventory of her separate
property is prima facie evidence as between wife and purchasers in good faith and for a valuable
consideration from the husband, that property of which no inventory has been so filed is not the separate
property of wife, failure to file such an inventory is prima facie evidence that property in question is not the
wife's property but it is not conclusive evidence. NRS 123.160.
In action involving title to dairy herd which had in a divorce decree been declared to be property of wife,
but which prior to entry of such decree had been sold by plaintiff's husband after an
injunction had been dissolved restraining husband from dealing with herd in any
manner, evidence was insufficient to support defendants' claim that, in dealing with
their vendor, the husband was the ostensible agent of plaintiff or that plaintiff was
estopped to assert her title against such vendor, who had knowledge of existence of
injunction against husband, who purported to act for himself and not as plaintiff's
agent.
prior to entry of such decree had been sold by plaintiff's husband after an injunction had been dissolved
restraining husband from dealing with herd in any manner, evidence was insufficient to support defendants'
claim that, in dealing with their vendor, the husband was the ostensible agent of plaintiff or that plaintiff
was estopped to assert her title against such vendor, who had knowledge of existence of injunction against
husband, who purported to act for himself and not as plaintiff's agent.
Where husband did not purport to act as wife's agent in selling dairy herd which in a subsequent divorce
decree was declared to be the property of wife, wife's conduct and statements to purchaser of herd at time
he sought to take possession thereof could not amount to ratification of the sale.
Where husband sold a dairy herd which in a subsequent divorce decree was declared to be the separate
property of wife, acts and conduct of wife allegedly recognizing the sale as a legitimate deal and
statement by her that she would try to locate her husband and get the money back if purchaser would call
off the deal and agreement by purchaser not to take cattle for a few days and alleged agreement by wife that
purchaser could take cattle if she failed to return his money did not establish that wife had entered into a
direct contract with the purchaser and had in effect sold the herd to him.
6. Limitation of Actions.
Where value of dairy herd belonging to wife and wrongfully sold by her husband was valued at $10,300
and there was a mortgage against the herd in sum of $3,100, which was discharged by purchaser, any rights
which purchaser or subsequent owners of herd had against wife in an action to recover the herd were
wholly dependent upon wife's prevailing, and claim by subsequent purchasers for $3,100 related to extent
of injury actually suffered by wife and was not barred by statute of limitations, and wife was only entitled
to recover value of herd less mortgage which had been paid off.
OPINION
This appeal is taken by the defendants below from judgment for the plaintiff, rendered
pursuant to a directed verdict. Appellants contend that factual issues remained for jury
determination and that for this reason the trial court erred in directing a verdict for the
plaintiff.
At issue is the title to a dairy herd which, when this action was brought, was in the
possession of defendants in Churchill County.
action was brought, was in the possession of defendants in Churchill County. Plaintiff,
claiming title, sought the return of the herd or its value.
Title to the herd has been in litigation for over ten years before five different trial judges in
three separate actions. This is the seventh occasion upon which recourse to this court has
been had. With the passage of time the subject of the action has been altered. At the outset we
were concerned with the fate of 41 cows and 2 bulls. We now learn that, through death and
transfer, this herd no longer exists. We are now concerned solely with a judgment in the sum
of $10,300 which has been determined to be the cash value of the herd when taken by the
defendants.
Defendants assert ownership of the herd under any one of several legal and equitable
principles. Our task on this appeal is simply one of factual analysis: to determine whether,
under the evidence before the trial court, any one of these principles may be sustained.
On June 25, 1948 the plaintiff brought suit for divorce against her then husband, David
Belanger. In that suit she alleged the herd to be her separate property. On September 14, 1948
she secured a decree to this effect. On July 31, 1948, and prior to entry of this decree,
however, Belanger had purported to sell the herd to one Childers. Belanger has since departed
and the proceeds of sale have gone with him. On August 5, 1948 Childers sold the herd to
one Vrenon. On the same date, August 5, 1948 Vrenon sold the herd to the Bowlers,
defendants in this action. After securing her decree of divorce plaintiff sought to recover her
herd. She brought suit against Childers and Vrenon and obtained judgment. Since she had
failed to join the Bowlers, this action was brought December 12, 1950.
This court has already determined that the Bowlers acquired no title through Belanger,
since plaintiff was then the legal owner of the herd. Bowler v. Leonard, 70 Nev. 370, 269
P.2d 833. The question remaining is whether the Bowlers can be said to have acquired title
through plaintiff.
The Bowlers contend that upon four different theories the jury might have found that
Childers acquired good title through the plaintiff.
the jury might have found that Childers acquired good title through the plaintiff. (1) That
Belanger sold the herd as plaintiff's agent. (2) That plaintiff, by her conduct, should be held
estopped to assert her title against Childers or the Bowlers. (3) That plaintiff ratified the sale
by Belanger. (4) That plaintiff herself by direct contract with Childers in effect sold the herd
to him. We shall deal with each of these contentions.
[Headnote 1]
Upon their contention of agency the Bowlers point to the following facts. Prior to the sale
by Belanger to Childers the herd had been kept upon the Belanger dairy ranch which was
operated under Belanger's management. In his capacity as manager he had frequently bought
and sold dairy cattle for himself and his wife. Plaintiff had never filed any inventory of
separate property as provided by NRS 123.140: A full and complete inventory of the
separate property of the wife * * * must be made out and signed by her * * * and shall be
recorded
* * *.
Further, NRS 123.160 provides, * * * the failure to file for record an inventory of her
separate property in the office of the recorder of the county in which she resides * * * is
prima facie evidence, as between the wife and purchasers in good faith and for a valuable
consideration from the husband, that the property of which no inventory has been so filed * *
* is not the separate property of the wife.
A further significant fact is that upon commencement of suit for divorce plaintiff had
secured an injunction against Belanger dealing with the herd in any manner. Since this was
found to interfere with the dairy operations to the mutual disadvantage of the parties, the
injunction was dissolved. It was after this action was taken that Belanger sold the herd to
Childers.
The Bowlers contend that through failure of the plaintiff to inventory this herd as her
separate property, the herd has, as to third persons, acquired the status of community property
over which the husband has the power of disposition; that Belanger must, therefore, be
regarded as the actual agent of the plaintiff.
There can be little doubt that, prior to the commencement of the divorce action, Belanger
acted as plaintiff's agent with reference to the herd and its management. By the assertion of
her claims in the divorce action, however, plaintiff most clearly terminated any authority
Belanger may have had to act in her behalf. Any actual authority which may theretofore have
existed had been effectively and unquestionably terminated.
[Headnote 2]
Nor can the failure to file an inventory be said to have created actual authority as a matter
of law. Failure to file such an inventory is prima facie evidence that the property in question
is not the wife's separate property. It is not, however, conclusive evidence. The statute
essentially bears upon burden of proof. As stated in Petition of Fuller, 63 Nev. 26, 39, 159
P.2d 579, 585, By failing to file such inventory the wife does not forfeit her separate
property, and may show that certain property is her separate estate by other evidence,
notwithstanding such failure.
This is precisely what occurred here. The fact has been conclusively established that,
notwithstanding her failure to file the prescribed inventory, the property was in truth the
separate property of the plaintiff. This being so, regardless of whether Childers was a
purchaser in good faith or not, Belanger cannot be said to have had actual authority to dispose
of the herd as though it were community property.
We conclude that there is no evidence to support the Bowlers' contention that Belanger
acted as plaintiff's actual agent in selling the herd to Childers.
[Headnote 3]
The Bowlers next contend that, regardless of any lack of actual authority, Belanger
possessed ostensible or apparent authority to deal with the herd as plaintiff's agent; that
Childers as a reasonably prudent man was entitled to conclude from all the facts and
circumstances of which he had knowledge that Belanger was so authorized; that if failure to
file an inventory did not create actual authority, it did create apparent authority.
Further facts must be considered in connection with these contentions.
Childers testified that he had no knowledge of the divorce action having been brought; that
he had made his deal with Belanger in all good faith, giving his check for the purchase price.
The check was to Belanger alone. When the check reached the local bank, upon which it was
drawn, the bank manager questioned the authority of Belanger to sell the herd for himself. In
conference with Childers and Belanger the manager suggested that the plaintiff should have a
right to participate. Belanger protested this. He advised that while an injunction against his
disposing of the herd had once been issued, it had been set aside. Childers confirmed this fact
by a telephone call to the presiding district judge. Childers testified that the judge had told
him that it was proper for him to proceed with Belanger. However, on cross examination, he
could not state whether the district judge understood that the plaintiff was not a party to the
sale.
Further, Childers testified that after the divorce decree had been handed down and he had
advised plaintiff of the fact of the sale by Belanger, plaintiff had recognized that it was a
legitimate deal and had stated that she would try to locate Belanger and get the money back
if Childers would call the deal off; that Childers had agreed not to take the cattle for a few
days; that plaintiff had then agreed that he could take them if she failed to return his money;
that he had taken the cattle a few days later; that plaintiff had recognized his right to take the
herd in that she had later called at his place of business, not to protest the taking of the herd
but to recover certain milking pails.
It should be enough to dispose of the Bowlers' contention of apparent authority to point out
that Belanger was not purporting to act as plaintiff's agent but for himself. The bill of sale was
signed by him as owner. The check was made out to him alone.
There are further obstacles, however, which also dispose of the Bowlers' contention that
plaintiff should, by her conduct, be held estopped to assert her title.
Any appearance of authority in Belanger was not created by the plaintiff. Childers cannot
be said to have relied to his detriment upon any conduct or representation of the plaintiff. His
knowledge of the existence of an injunction, even though it had been set aside, gave him
notice that a dispute between the plaintiff and Belanger existed with reference to the herd.
Any appearance of authority which theretofore might be said to have existed, should have
been dissolved by this knowledge. Further, had he followed up his knowledge he would have
learned the terms upon which the injunction had been set aside. Restraint still remained. It
was clear from the order dissolving the injunction that Belanger had no authority to sell the
herd either as principal or as agent. The fact that Childers' conversation with the district judge
may have led him to believe otherwise cannot be attributed to plaintiff. Childers relied not on
her acts but on his conversation with the judge.
Nor can the subsequent acts of plaintiff when Childers sought to take possession of the
herd be said to create an estoppel. Childers did not change his position in any respect in
reliance upon these acts. His detriment had already been suffered.
We conclude that there is no evidence to support the Bowlers' contentions that, in dealing
with Childers, Belanger was the ostensible agent of plaintiff or that plaintiff should be held
estopped to assert her title against Childers. Nor is our attention directed to evidence of any
independent reliance by Vrenon or the Bowlers upon conduct of the plaintiff which might be
held to create an estoppel.
[Headnote 4]
The Bowlers next contend that plaintiff's conduct and statements to Childers at the time
Childers sought to take possession of the herd amounted to ratification of the sale to Childers.
Since Belanger was not purporting to act as plaintiff's agent, however, these acts and
statements could not amount to ratification. Harrah v. Specialty Shops, Inc., 67 Nev. 493, 221
P.2d 398. See Restatement of the Law, Agency, sec. S5. Accordingly we must reject this
contention.
Agency, sec. 85. Accordingly we must reject this contention.
[Headnote 5]
Finally the Bowlers contend that these same acts and statements demonstrate that plaintiff
had entered into a direct contract with Childers and had in effect herself sold the herd to him.
No consideration for a contract appears, however. Plaintiff certainly received no benefit
and Childers suffered no detriment. The Bowlers contend that Childers' leaving the cattle
with plaintiff until she had attempted to reach Belanger constituted consideration. Childers,
however, had no right to take the herd. He did not forebear from the exercise of any right
possessed by him. This contention, too, we must reject.
We conclude that the Bowlers have failed to present any evidence to support their claim of
ownership. Plaintiff was, then, entitled as a matter of law, to judgment reimbursing her to the
extent of the value of the herd.
[Headnote 6]
The value was fixed, by jury verdict, at $10,300 which was the sale price in the
Vrenon-Bowler transaction. The Bowlers contend that this judgment should be reduced by the
sum of $3,100.
At the time of the Belanger sale to Childers there was a mortgage against the herd in the
sum of $3,100. Of the price paid by Childers $3,100 went to discharge this mortgage. During
the course of suit below Childers assigned his claim in this amount to the Bowlers. The
Bowlers sought to amend their answer to allege this fact. Their motion was denied. Plaintiff
claims that this was proper for the reason that the statute of limitations had run against the
assertion of any counterclaim or setoff.
The $3,100 claim did not, however, create an independent right of recovery in Childers or
the Bowlers. Any rights against the plaintiff which such claim might create were wholly
dependent upon the plaintiff's prevailing in this action. The claim relates, rather, to the extent
of injury actually suffered by the plaintiffto the value of her interest in the herd at the
time of conversion.
value of her interest in the herd at the time of conversion. To permit her to recover the full
value of the herd without deducting the sum of $3,100 would be to permit her to recover a
loss which she has never suffered. Judgment should, then, be reduced in the sum of $3,100.
It is ordered that judgment in favor of respondent Stella B. Leonard be modified by
reducing it from the sum of $10,300 to the sum of $7,200. As so modified, judgment
affirmed. No costs are allowed.
McNamee and Badt, JJ., concur.
____________
75 Nev. 41, 41 (1959) Nester v. State of Nevada
CHARLES EDWARD NESTER, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 4083
January 20, 1959 334 P.2d 524
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Defendant was convicted of rape. From a judgment and order denying his motion for new
trial in the trial court the defendant appeals. The Supreme Court, McNamee, J., held that
evidence relative to another rape committed under similar circumstances was admissible to
identify the defendant as perpetrator of the offense involved; that the evidence sustained
conviction and that other rulings were without error.
Affirmed.
(Petition for rehearing denied February 16, 1959.)
John F. Mendoza, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General and George M. Dickerson, District Attorney, Clark
County, for Respondent.
1. Criminal Law.
On trial of a person accused of crime, proof of a distinct independent offense is inadmissible except that
evidence of other crimes is competent to prove the specific crime charged when it tends to establish
motive, intent, absence of mistake or accident, a common scheme or plan and the identity of the person
charged with commission of the crime on trial.
2. Criminal Law.
The relevance of evidence tending to prove a crime other than that charged must be examined with care.
3. Criminal Law.
A common scheme or plan with respect to admissibility of evidence of other crimes means that one act
or one plan or scheme might involve the commission of two or more crimes under circumstances that
would make it impossible to prove one without proving all.
4. Criminal Law.
In rape prosecution, where there was an attempt to establish identity of defendant by characteristic
conduct involved in another rape, whether the elements of characteristic conduct were sufficient to make
relevant the evidence relating to the other rape was a question of law.
5. Criminal Law.
In rape prosecution, where state attempted to establish identity of defendant as perpetrator of the offense
by characteristic conduct involved in another rape committed under similar circumstances where both the
defendant and assailant in the other rape behaved in an identical manner, evidence of the attack involved in
the other rape was relevant and competent.
6. Criminal Law.
In order to establish admissibility, it is not enough to establish that evidence of a separate offense is
relevant under an exception to the general rule excluding such evidence, and fair trial demands that the
evidence be not admitted where by virtue of its prejudicial nature it is more likely to distract from the
essential issue than to bear upon it and such involves the exercise of judicial discretion of the trial judge.
7. Criminal Law.
In rape prosecution, where there was an attempt to establish identity of defendant by characteristic
conduct involved in another rape wherein the assailant behaved in an identical manner and the trial judge
heard the substance of the other rape outside the presence of the jury and determined as a matter of law that
it was admissible even though its nature would make it prejudicial under different circumstances, record
did not establish that the balance struck by the trial judge between prejudice and probative weight of the
evidence was manifestly wrong.
8. Criminal Law.
In rape prosecution, remark by prosecutor in cross-examination of the defendant whether defendant was
not sure that he did not get the scars on his hand over the back seat of a car did not require a mistrial
on ground that the remark was not justified by the evidence.
did not require a mistrial on ground that the remark was not justified by the evidence.
9. Criminal Law.
In rape prosecution with defense of alibi, refusal of defendant's requested instruction on reasonable doubt
was not error in view of instruction given by the court defining reasonable doubt and an instruction with
reference to alibi.
10. Criminal Law.
In rape prosecution, argument of the prosecutor stating in an abstract manner no more than what was
disclosed by the evidence was not reversible error.
11. Rape.
Evidence sustained conviction of rape.
OPINION
Appellant was convicted of the rape of Rachel Cruz. Appeal is taken from the judgment
and from the order denying his motion for a new trial.
The chief assignment of error as grounds for reversal involves evidence of a separate crime
committed on the person of Edna Weldon.
In North Las Vegas, on August 25, 1956 shortly after 1 a. m. Rachel Cruz, who had gone
to bed, sensed someone in her bedroom. She rolled over on her left side; a man jumped on top
of her saying, never mind who it is, and then threw some rags over her face so she wouldn't
be able to see him. She struggled, screamed, bit the inside of his little or ring finger, breaking
the skin thereof. She was struck in the face, and finally quit struggling when her assailant
said, shut up or I'll knock you out. When she pushed the rags from her face he slid down
burying his head against her shoulder. In this position he was able to complete forcibly the act
of sexual intercourse without removing any of her garments (she was wearing a nightgown
and panties) and without removing any of his clothing. She was able to see the rear portion
of his head, feel his hair, which was fine, and determine that he was colored.
After accomplishing the act, the assailant picked up his light-weight shoe or slipper of
awfully soft texture and ran out of the house through the back door.
and ran out of the house through the back door. The victim tried to turn on the lights and was
unsuccessful, because the fuses in the fuse box beside the back door had been unscrewed to
preclude contact, after she had retired for the night.
Footprints from a house-slipper type of shoe led from the back door of the Cruz house 300
yards to a house occupied by appellant, who, when confronted there by police about an hour
and a half after the rape, was bearing a weeping wound on the inside of his left hand's ring
finger, and a weeping scratch or abrasion at the quick of the fingernail of said finger. He was
taken to the Cruz home, where Mrs. Cruz identified him as her assailant by his voice, his
color, as well as by his build, stature, and hair.
The doctor's examination of Mrs. Cruz at the hospital on the same day disclosed numerous
contusions on her face, arms, upper chest, right thigh, and a tenderness of the abdomen. A
vaginal smear taken from deep penetration indicated presence of the sperm from sexual
intercourse.
One Barbara Jean Williams testified that during September, 1956, in the presence of
appellant's ex-wife, appellant admitted he had committed the North Las Vegas rape.
On February 16, 1957 at about 7:30 p. m. and at a time appellant was not in custody, one
Edna Weldon left her apartment at 4779 East Owens Street, North Las Vegas, to get into her
automobile. She occupied Apartment B at said address. Appellant and his wife about five
months before had occupied Apartment G of the same address, which was about 100 feet
from Apartment B. As she left the apartment, the light immediately outside her door, as well
as the floodlight on a pole in the courtyard, against which there was a ladder, were both out,
and the area was in darkness. After she entered her car and drove down the street one block, a
man rose up out of the back seat and put his hands on her shoulders. He was wearing a
sweater and possibly gloves which concealed his face and hands. He told her to keep driving
and she was directed to stop on a side road. He climbed over into the front seat where a
struggle ensued.
over into the front seat where a struggle ensued. He then told her to shut up or I'll knock you
cold. Without any attempt at caressing her or removing any of his or her garments, he
attempted several times to enter her vagina with his penis, but she was too small for such
penetration. He then forcibly inserted his penis into her rectum. While he was holding her
down he lost his balance and his right hand protruded from the sweater sleeve and fell against
the dashboard of her car leaving a palm print, and she observed his hand to be that of a
colored man. He told her he lived in the neighborhood and had been watching her for a long
time. After he left her, she returned to her apartment, the police arrived, and the two lights
were twisted into their sockets and upon contact illuminated the area. The palm print taken
from the dashboard of Mrs. Weldon's vehicle was found to be identical with that of
appellant's. Later Mrs. Weldon identified her assailant by the sound of his voice but made no
physical identification of him.
Appellant, testifying in his own behalf, stated that he was at home in bed with his wife at
the time of the rape of Rachel Cruz, which testimony his wife corroborated. He testified that
the injuries to his finger happened at work several hours before the rape, while he was lifting
wooden crates, around one of which was a cut metal band, and this was corroborated in part
by a co-worker who witnessed the accident but did not see the injured finger. Appellant's wife
testified her husband complained of an injured finger when she met him the evening before
the rape, but she didn't see the finger. Appellant denied making any admission to Barbara
Williams that he was involved in a North Las Vegas rape, and this testimony was
corroborated by his ex-wife. With respect to the incident of February 16, 1957, he stated that
on said day he drove his wife's car on U. S. Highway 91, through Yermo, California, to the
home of his former sister-in-law in Los Angeles, California, and that he was present in Los
Angeles at the time of the attack on Mrs. Weldon. The sister-in-law corroborated his presence
in Los Angeles at that time, but the officer in charge of the Yermo checking station through
which every vehicle entering California on U. S. Highway 91 must stop and be recorded,
testified on rebuttal there was no record of that particular car on that date passing
through said station.
entering California on U. S. Highway 91 must stop and be recorded, testified on rebuttal there
was no record of that particular car on that date passing through said station. To account for
his palm print being on the dashboard of Mrs. Weldon's car, appellant contended that he
worked at a service station near Mrs. Weldon's residence and dusted the inside of cars. Mrs.
Weldon testified, however, that her car was serviced elsewhere.
The other evidence in the record does not affect materially the court's conclusions.
Appellant does not dispute the fact that Rachel Cruz was feloniously raped in Clark
County, on August 25, 1956. The conflicting evidence relates solely to the identity of her
assailant. The information charges the defendant with being the guilty person and evidence
supporting this charge was corroborated by evidence tending to show him as the assailant in
the felonious attack upon Edna Weldon some six months later. This corroborating evidence
was met with timely objections.
Did the trial court err in admitting evidence purporting to show that appellant committed
this other independent crime?
[Headnote 1]
It is a rule of criminal evidence that, on the trial of a person accused of crime, proof of a
distinct independent offense is inadmissible.
As exceptions to this general rule evidence of other crimes is competent to prove the
specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of
mistake or accident; (4) a common scheme or plan embracing the commission of two or more
crimes so related to each other that proof of one tends to establish the others; (5) the identity
of the person charged with commission of the crime on trial.
Although Nevada recognizes the general rule and said exceptions (State v. McFarlin, 41
Nev. 486, 494, 172 P. 371, 373), the fact that it is much easier for a jury to believe the
defendant guilty of the crime charged when it is known or suspected that he has committed a
separate and distinct crime, shows the danger of allowing evidence of the other crime.
Such evidence compels the defendant to meet charges of which the indictment gives him
no information,
1
confuses him in his defense, raises a variety of issues, and thus diverts the
attention of the jury from the one immediately before it, and, by showing the defendant to
have been a knave on other occasions, creates a prejudice which may cause injustice to be
done him. People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 294, 62 L.R.A. 193.
[Headnote 2]
Consequently the relevance of evidence which tends to prove a crime other than that
charged must be examined with care, even if it fits properly, within one or more of the
exceptions.
We are not here concerned with the assailant's motive or intent, or of the presence or
absence of mistake or accident. All of the elements of the crime of rape were proven without
dispute, and were not in issue, and there is no contention to the contrary.
A brief analysis of the fourth exception relative to a common scheme or plan, is deemed
necessary, because there appears both in the briefs and the oral argument some confusion
with respect to its applicability to the facts in this case.
[Headnote 3]
A common scheme or plan here means that one act or one plan or scheme might involve
the commission of two or more crimes under circumstances that would make it impossible to
prove one without proving all. 20 Am.Jur. 296.
The test is not whether the other offense has certain elements in common with the crime
charged, but whether it tends to establish a preconceived plan which resulted in the
commission of that crime. Wigmore on Evidence, 2d ed. sec. 300.
The criminal attacks against Rachel Cruz and Edna Weldon were not part of the same
purpose, scheme or plan, but were two different schemes wholly independent of each other
(although the plan or scheme or modus operandi were similar in many respects), and each
could have been proven without evidence of the other.
____________________

1
In the present case Mrs. Weldon's name was indorsed on the information, apprising the defendant that she
would be called as a witness.
operandi were similar in many respects), and each could have been proven without evidence
of the other.
Therefore to justify, if at all, the admission in evidence of the attack upon Edna Weldon, it
must fall within the fifth exception to the general rule, which allows evidence of another
crime to be considered when it tends to establish the identity of the person charged with the
commission of the crime for which defendant is being tried.
It is the state's contention that the two crimes were similar in so many respects that there
could be no reasonable doubt but that they were committed by the same person, and when the
state is referring to the two crimes as showing a common plan or scheme, it does so not for
the purpose of utilizing the fourth exception of the general rule, which is not applicable as
heretofore stated, but solely to identify the assailant in the Rachel Cruz case.
In the case at bar the state contends the two criminal acts were similar in the following
respects: 1. The assailant in each case had a soft quality of voice and a southern accent. 2. In
both cases the home in which the victim lived or had lived was in close proximity to the
assailant, if the appellant was the assailant. 3. Both crimes occurred in North Las Vegas. 4. In
both cases the fuses or lights had been unscrewed to keep the area in darkness. 5. In both
instances the assailant concealed his face to prevent identification. 6. The language used by
the assailant was practically identicalshut up or I'll knock you out, in one case, and shut
up or I'll knock you cold in the other. 7. In neither case was there an attempt to embrace the
victim but rather a forcible entry in the vagina in the one case, and in the rectum when entry
in the vagina was practically impossible in the other case. 8. In both cases there was no
removal of the garments either of the victim or the assailant.
As to the first three listed similarities, in no respect can they be said to render relevant the
fact that another offense had been committed, because such matters could be proven without
reference to other crimes.
[Headnote 4]
Here we are faced with an attempt to establish identity by characteristic conduct. What is
significant is that both this defendant and the assailant whom we seek to identify, when faced
with a certain situation, are known in certain respects to have behaved in an identical manner.
By these characteristics of conduct, established as peculiar to the defendant, it was proper for
the state to seek to identify the assailant as the defendant.
Whether these elements of characteristic conduct are sufficient to make relevant the
evidence relating to the Weldon crime is a question of law. People v. Molineux, supra. As
stated in People v. Sharp, 107 N.Y. 427, 467, 14 N.E. 319, 344, Whether the evidence in any
particular case comes within the well-known exceptions to the general rule is often the
difficult question to solve and not as to what the rule itself really is.
California has departed from the restrictions governing the application of restrictions to the
general rule as defined in the Molineux case, and has liberalized those restrictions in favor of
admissibility. In recent years these exceptions have been so extended that the rule appears to
have been the exception, and the exceptions the rule. People v. Cassandras, 83 Cal.App.2d
272, 188 P.2d 546, 550.
The rule in California is that except when it shows merely criminal disposition, * * *
evidence that is relevant is not excluded because it reveals the commission of an offense other
than that charged. The general tests of the admissibility of evidence in a criminal case are:
* * * does it tend logically, naturally, and by reasonable inference to establish any fact
material for the people, or to overcome any material matter sought to be proved by the
defense? If it does, then it is admissible, whether it embraces the commission of another
crime or does not, whether the other crime be similar in kind or not, whether it be part of a
single design or not. * * * and the fact that it may tend to prejudice the defendant in the minds
of the jurors, is no ground for its exclusion.' People v. Peete, 2S Cal.2d 306, 316, 169 P.2d
924, 929.
People v. Peete, 28 Cal.2d 306, 316, 169 P.2d 924, 929.
In the Peete case, 24 years elapsed between the two crimes. Evidence of the former crime
was admitted as relevant to identify the defendant as the murderer, since the two crimes
showed a similar modus operandi, and the court held also that the motive was the same for
the two crimes.
In People v. Webster, 79 Cal.App.2d 321, 179 P.2d 633, 636, the prosecution had to rely
wholly on circumstantial evidence, and notwithstanding the strictly circumstantial nature of
the case and the gravity of the offense (murder), evidence of a similar attack subsequent to the
one on trial, was held admissible.
The evidence before us concerning both offenses involved here is sufficient to satisfy the
requirements of these rules. Defendant was sufficiently connected with and implicated in the
offense for which he was on trial. It was thoroughly established that he spent the afternoon
and evening of June 30th with deceased; that he had dinner with her is established by the
testimony of the waitress who served them and the remnants of this meal found in her
stomach by the autopsy surgeon. The tire track on the road corresponded with the tread of one
of the tires on his automobile. Most convincing is the fingerprint found on the purse of
deceased. That defendant was concerned in the assault on Miss Sullivan was sufficiently
established by her identification of him as her assailant. There was a similar plan or scheme
or system appearing in both offenses. Defendant picked up' both women in cocktail bars and
spent considerable time drinking with them. Both women had bruises and abrasions on their
heads. Both women were cruelly choked evidently with the right hand of their attackerone
to death and the other into a state of collapse and unconsciousness. The garments of both
were torn open leaving the upper portion of the front of the torso exposed. It would be
unusual to find two crimes with greater details of similarity of execution, showing a common
plan or scheme or system in the commission of both. Thus the evidence of the collateral
crime was properly admitted. People v. Lisenba, 14 Cal.2d 403, 94 P.2d 569; People v. Peete,
2S Cal.2d 306, 169 P.2d 924; Lisenba v.
v. Peete, 28 Cal.2d 306, 169 P.2d 924; Lisenba v. People, 314 U.S. 219, 62 S.Ct. 280, 86
L.Ed. 166. That the collateral crime was committed after the commission of the offense for
which defendant was on trial does not in itself furnish sufficient reason for rejection of the
evidence concerning it. People v. Gosden, 6 Cal.2d 14, 56 P.2d 211.
In People v. Cassandras, supra, there was no question of the identity of the defendant in
either instance. The question was whether the crime of rape had been committed. The court
said:
But where the prior rape or attempt is committed under circumstances remarkably similar
to the one charged the evidence is admissible to show a plan or scheme to commit the crime
in that fashion, even though the prior rape or attempt was committed on a person other than
the prosecutrix. In such cases the evidence that defendant committed the prior offense tends
to prove that he committed the offense charged.
People v. Sullivan, 96 Cal.App.2d 742, 216 P.2d 558 approves the foregoing cases and
holds that even when identity is not in issue evidence of another crime is admissible for the
limited purpose of tending to show that there existed in the mind of the defendant a plan,
scheme, system or design into which fitted the commission of the offense for which
defendant was tried.
The California rule, supra, is apparently the common law rule which is stated as follows:
Other acts must be excluded because of the prejudice, confusion, and surprise their use would
create, subject to the all important reservation that if the other acts are relevant to guilt of the
crime charged, otherwise than merely through propensity, then those other acts might like any
other relevant facts be exposed. 51 Harv. L. Rev. 1033-4.
The rule that evidence of another crime is admissible when it is relevant to establish the
identity of the defendant is, in addition to the California cases, supported by the following:
Johnson v. State, 242 Ala. 278, 5 So.2d 632, (and cases there cited); Watts v. State, 229 Ind.
80, 95 N.E.2d 570; Melton v. State, 184 Ga. 343, 191 S.E.2d 91; Mosley v. State, 211 Ga.
611, 87 S.E.2d 314, (here both victims of the rape testified that their assailant had a soft
voice); Allen v. State, 201 Ga. 391, 40 S.E. 2d 144; Andrews v. State, 196 Ga. S4, 26 S.E.
2d 263; Merritt v. State, 16S Ga. 753, 149 S.E. 46; Talley v. State, 160 Fla.
both victims of the rape testified that their assailant had a soft voice); Allen v. State, 201 Ga.
391, 40 S.E. 2d 144; Andrews v. State, 196 Ga. 84, 26 S.E. 2d 263; Merritt v. State, 168 Ga.
753, 149 S.E. 46; Talley v. State, 160 Fla. 593, 36 So. 2d 201; 20 Am.Jur. 292, sec. 312; 22
C.J.S. Criminal Law, sec. 684, p. 1097.
The leading case cited by appellant in support of his contention of error is the case of
Lovely v. U. S. 169 Fed. 2d 386. A careful reading of this case shows that it is in accord with
the California rule which excludes evidence of another crime where it has no relevance
except to show criminal disposition.
It is well settled that such evidence is not admissible where it has no relevance or
probative value except in so far as it may show a tendency or likelihood on the part of the
accused to commit the crime.
In the Lovely case there was no issue of identity, accused having admitted sexual
intercourse with the prosecutrix. The only question was whether such act was done forcibly
and against her will. The court did say, however, that such evidence of another crime may be
relevant on such matter of identity where this is in issue.
In Harris v. State, 189 Tenn. 635, 227 S.W.2d 8, 10, cited by appellant, where the sole
question was the identity of the accused, the court held that proof of the crime was
insufficient to establish some peculiarity of plan or method common to the two offenses.
* * * to render relevant evidence of a crime for which a defendant is not being tried, its
purpose and effect must be to show something more than the fact that the defendant is the
kind of person who would not scruple to commit the kind of offense for which he is on trial. *
* *
Thus we are brought to the point of considering, in the present case, whether the
similarity of the two crimes, which separate witnesses testified the defendant had committed,
were so similar in their circumstances as to warrant the reception of proof of one as relevant
to prove the other. In this case the crimes were a week apart in time. They were both rapes
and both were committed by coercion.
committed by coercion. In each instance the witness thought that a knife had been used
although neither was able to say that she had seen the knife. The two crimes were not
committed at the same place. The methods pursued were not so peculiar as to render it
unlikely that lustful men bent upon the crime of rape might not have pursued identical
methods. * * * Since the whole case turns upon the identity, the rule under which proof of
similar crimes is admitted should not be too narrowly construed, but the trouble here is that
even under a liberal construction the fact that the defendant committed one of the crimes
sheds little light on the question of whether he committed the other.
The other cases cited by appellant are not cases where identity was in issue.
[Headnote 5]
From a comparison of the Harris case, supra, with the other cases herein cited, there can
hardly be doubt that the evidence of the Weldon attack is relevant and competent. Experience
demonstrates that peculiarities of conduct can, in a proper case, be as valid and dependable a
basis for identity as is reliance upon the perhaps frail senses and memory of a witness.
In Whiteman v. State, 119 Ohio St. 285, 164 N.E. 51, 54, 63 A.L.R. 595, the court in
referring to evidence of other crimes, stated:
It was the province of the court to determine whether the testimony was legally relevant;
that is to say, whether under the circumstances of the case it would be essentially misleading
or too remote. Having determined that it was legally relevant, it was for the jury to determine
its probative value. While it was primarily a question of identity, that being the only issue, the
trial court rules that evidence tending to show plan, method, or system would be relevant to
the question of identity, these defendants having also been identified as the persons who
committed the other offenses. The question is one of induction, and the larger the number of
consistent facts the more complete the induction. It was for the court to determine that there
was some relation between the system followed in the offense charged in the indictment and
the systems pursued in the other offenses, and it was for the jury to determine whether
there was a sufficiently large number of consistent facts to establish the identity beyond a
reasonable doubt.
charged in the indictment and the systems pursued in the other offenses, and it was for the
jury to determine whether there was a sufficiently large number of consistent facts to establish
the identity beyond a reasonable doubt. We find no error in the record.
Since it is the prejudicial nature of the evidence which is the principal concern, the
question of admissibility does not turn entirely on its relevance or competence. The matter of
a fair trial must also be considered.
[Headnote 6]
In order to establish admissibility, then, it is not enough to establish that the evidence of a
separate offense is relevant and competent under one of the exceptions to the general rule
excluding such evidence. Even where relevancy under an exception to the general rule may be
found, fair trial demands that the evidence not be admitted in cases where, by virtue of its
prejudicial nature, it is more likely to distract from the essential issue than to bear upon it.
Whether, under the circumstances, admission of the evidence interferes with fair trial, can
hardly be determined by fixed rule of law. It would seem to require, instead, the exercise of
judicial discretion of the trial judge.
Gears v. State, 203 Ind. 380, 180 N.E. 585, at page 587, cites the Whiteman case, supra,
with approval and then says (p. 587), The admissibility of the evidence relating to other
offenses presents a question for the sound discretion of the trial court guided only by very
general standards or tests.
In all such cases as this, then, an intermediate step must be taken between the
determination of relevancy by the court and the weighing of the evidence by the jury. In
determining admissibility the additional responsibility rests upon the trial judge (after having
determined that the evidence of a separate offense is competent and relevant) to balance the
prejudicial and distracting impact of the evidence against its probative weight and
persuasiveness. If by the balance struck, prejudice outweighs probative value, the evidence
should be excluded regardless of its relevancy to the issue of identity.
prejudice outweighs probative value, the evidence should be excluded regardless of its
relevancy to the issue of identity.
Stone, Exclusion of Similar Fact Evidence, 46 Harvard L. Rev. 954, 984 states:
The trial judge should be recognized to have a discretion to decide whether the probative
weight of the proffered evidence outweighs its mere prejudice. Just as he can say whether
there is sufficient evidence to go to the jury, he should be allowed to say, not as a matter of
applying rules of admissibility, but as a matter of real discretion, whether it is the peg of
relevance or the dirty linen hung thereon, upon which the jury is going to concentrate; and if
in his opinion, the peg is so small and the linen so bulky and dirty that a jury will never see
the peg, but merely yield to indignation at that dirt, then he should be allowed to exclude it.
Appellate courts should hesitate to establish rules fettering the discretion of the tribunal
which really has the situation before it. * * * And, if this discretion were to be combined with
the practice of hearing argument in the judge's chambers, or out of hearing of the jury, it
would produce a reasonable solution of the difficulties affecting this class of evidence.
[Headnote 7]
Here the trial judge heard the substance of the other crime outside the presence of the jury.
He determined as a matter of law that the same was relevant, legally admissible, and had
sufficient weight to entitle it to be submitted to the jury, even though its nature would make it
prejudicial under different circumstances. While we are not willing to agree that all of the
said elements of contended similarities are of material or of any significance, we do believe
that there was sufficient evidence of similar characteristics of conduct between the assailant
in each instance when faced with a like situation, to identify them as one and the same
person. Nor can we say that the balance struck by the trial judge between prejudice and
probative weight was manifestly wrong.
wrong. Further, the jury was instructed as to the limited purpose for which such evidence was
admitted, and appellant made no objection to the instruction so given.
The second assignment of error that The District Court erred in allowing the state to
examine witness Doyle Hamilton in such a manner that evidence which tended to show
defendant may have been guilty of other and distinct crimes was brought before the jury is
without merit. We do not deem it necessary to quote the individual questions asked in rebuttal
which form the basis of this objection, because in our opinion they refer only to the two
crimes which were already in evidence and witness Hamilton testified that appellant denied
knowledge of them.
[Headnote 8]
As a third assignment of error, appellant contends that the district court erred in denying
defendant's motion for a mistrial made immediately after the district attorney in the
cross-examination of appellant, remarked, are you sure that you didn't get those scars over
the back seat of a car? Counsel for appellant objected and moved for a mistrial on the
ground that this was prejudicial in that the state was trying to bring up something that there
is absolutely no testimony about. We think this proper cross-examination in view of
appellant's testimony that the scars resulted from being kicked in the shins by officer
Hamilton, which was denied by Hamilton on rebuttal, and that of Mrs. Weldon who testified
her assailant had climbed over the back seat to the front seat to attack her.
[Headnote 9]
The fourth assignment of error was the court's refusal to give the following instruction
proposed by appellant: If the evidence in this case is susceptible to two constructions or
interpretations, each of which appears to you to be reasonable and one of which points to the
guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt
that interpretation which will admit of the defendant's innocence, and reject that which points
to his guilt. This is a modification of the instruction given in the case of State v. Carey, 34
Nev. 309
modification of the instruction given in the case of State v. Carey, 34 Nev. 309, 122 Pac. 868,
and which was also given here as instruction 4.
2

In the present case we are not concerned with motives but with an alibi. Instruction No. 12
being the statutory instruction, defining reasonable doubt, and instruction No. 6 with
reference to alibi, adequately protected appellant in his interpretation of the evidence.
3

The fifth assignment of error pertains to the court's refusal to strike statements made by the
district attorney in final argument. Appellant's motion to strike the following portions of said
argument was denied:
This is the state's case, and just as Mr. Mendoza tells you he has a duty to his client to
seek his freedom, I have a duty to my client to seek freedom also, and freedom also from a
horrible fear that must strike in the heart of a woman like Rachel Cruz upon seeing the
presence of a man in her bedroom, to deprive her of that which has been reserved by her
marriage oath that she took with her husband. Think of the impression that must be indelibly
imprinted on the mind of a woman such as that for the remainder of her life of the abhorrent
vulgarness. How it will affect her from this date forward. And as a woman of Clark County,
she, the mother of children is to be free in her home, not to be molested by a man who, in my
opinion, has sunk to the bottom * * *.
____________________

2
Instruction No. 4. The jury were instructed that when a man's conduct may be consistently and as
reasonably from the evidence, referred to two motives, one criminal and the other innocent, it is your duty to
presume that such is activated by the innocent motive and not by the criminal.

3
Instruction No. 12. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a
doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence are in such a condition that they can say they feel an
abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be
actual and substantial, not mere possibility or speculation.
Instruction No. 6. When one who was not at the place where a crime was committed at the time of its
commission is later charged with having been present and having committed or taken part in committing such
crime, his absence from the scene of the crime, if proved, is a complete defense that we call an alibi.
The district attorney then went on to say without further objection:
* * * by a man who, I say, in my opinion, has sunk to the bottom of a bottomless pit, the
whole bottom of a pit of moral degradation. You have heard a tale revolting in the extreme
and that shockingly illustrates the perverseness to which human nature can descend and you
are now charged with the responsibility of stating what the attitude of Clark County shall be,
what standard of obedience to our laws shall be maintained, because you alone sit in
determination of that because our system of jurisprudence is composed of three
indistinguishable cogs intermeshed, the law enforcement agencies that feed the evidence to
the prosecution, the prosecution that screens the evidence through the legal safeguards to the
jury, and the jury who dispenses the justice. It is an intermeshed working mechanism and the
effectiveness of crime suppression is only as good as the twelve people who sit in judgment
of each given case and when you cast your verdict it does not only reflect your individual
thinking in this regard because you have been meticulously chosen and screened by the
questions propounded to you as to your fitness to sit in this case, to speak out for and on
behalf of the citizenry of Clark County, and the law is but words in a book, it is meaningless
unless the agency in whom the power has been reposed to give meaning to that, assumes and
undertakes the function and obligations which is theirs, and that is what I charge you with,
ladies and gentlemen, at this time. Consider, weigh this evidence long and well and apply it to
the law that His Honor has given to you and in so doing I am confident that you will bring
forth the verdict that will do exact and equal justice to the State of Nevada as well as the
defendant at the bar. Thank you.
[Headnote 10]
In our opinion the district attorney stated in an abstract manner no more than was disclosed
by the evidence, and he cautioned the jury to consider, weigh this evidence long and well
and apply it to the law that His Honor has given to you, and in so doing this I am confident
that you will bring forth the verdict that will do equal justice to the State of Nevada, as
well as to the defendant at the bar."
Honor has given to you, and in so doing this I am confident that you will bring forth the
verdict that will do equal justice to the State of Nevada, as well as to the defendant at the
bar.
There is no merit in appellant's fifth assignment of error.
[Headnote 11]
The sixth and last assignment of error relates to the denial of the motion for a new trial.
This motion was based on the first five assignments of error. In view of our conclusions
relating thereto, the trial court did not err in denying said motion.
The court is of the opinion that there is ample competent evidence to justify the verdict,
and there being no error, the judgment and order denying new trial are affirmed.
____________
75 Nev. 59, 59 (1959) Henry v. Baber
ROBERT W. HENRY, MERCURY CLEANERS, INC., a Corporation, LOIS WARD,
Appellants, v. BEN BABER and DOLORES BABER, Respondents.
No. 4111
January 28, 1959 334 P.2d 839
Appeal from First Judicial District Court, Ormsby County; Frank B. Gregory, Judge,
Department No. 1.
Action by husband and wife arising out of automobile accident involving an automobile
driven by wife, who was called by defendants as an adverse witness and who on
cross-examination testified that for a period of about two years before accident she earned
$140 a month. From adverse judgment of the trial court the defendants appealed. The
Supreme Court, Badt, J., held that question asked of wife as to whether she reported that
amount to the government on her income tax returns was relevant and material and
sustaining of objection to the question was prejudicial error when the jury found specially
for wife in the precise amount claimed.
75 Nev. 59, 60 (1959) Henry v. Baber
amount to the government on her income tax returns was relevant and material and sustaining
of objection to the question was prejudicial error when the jury found specially for wife in the
precise amount claimed.
Reversed and remanded for new trial, subject to remittitur damnum.
Woodburn, Forman, Wedge, Blakey & Thompson, of Reno, for Appellants Robert W.
Henry and Mercury Cleaners, Inc.
Vargas, Dillon & Bartlett, of Reno, for Appellant Lois Ward.
Laxalt, Ross & Laxalt, of Carson City, for Respondents.
1. Appeal and Error; Witnesses.
In action by husband and wife arising out of automobile accident involving an automobile driven by wife,
who was called by defendants as an adverse witness and who on cross-examination testified that for a
period of about two years before accident she earned $140 a month, question asked of wife as to whether
she reported that amount to government on her income tax returns was relevant and material and sustaining
of objection to question was prejudicial error when jury found specially for wife in the precise amount
claimed.
2. Trial.
In action by husband and wife arising out of automobile collision involving an automobile driven by wife,
wherein husband on direct examination answered in response to question of whether he had any
conversation with one of defendants that he went to get her name and her insurance company so he could
fill in his report, husband's answer could not be characterized as a statement of inference that such
defendant was covered by insurance and there was no error in denying motion for mistrial.
In action by husband and wife arising out of automobile accident involving an automobile driven by wife,
wherein one of defendant drivers testified that she had only slowed up prior to collision and
plaintiff-husband testified that it looked to him as if such defendant's automobile was stopped, it was not
prejudicial error to admit testimony by plaintiff-husband of a conversation between himself and husband of
defendant driver immediately after accident in which plaintiff-husband asked why she stopped in middle of
highway and defendant driver's husband stated that she was looking for him and stopped when she found
him.
75 Nev. 59, 61 (1959) Henry v. Baber
4. New Trial.
Unless there is not room for doubt as to what testimony of witness would in all probability have been,
exclusion of the evidence will not warrant a new trial.
Where exclusion of evidence as to issue of lost wages was erroneous, testimony would not be presumed
to extend beyond the particular issue to which the excluded testimony was material and verdict would be
reversed unless plaintiff filed within ten days a remittitur to extent of damages representing loss of wages.
OPINION
[Headnote 1]
This was a suit for damages growing out of a four-car accident occurring May 31, 1956, on
Highway 50 near Lake Tahoe. Car No. 1, the first car of the group, was driven by appellant
Lois Ward (herein referred to as Ward), car No. 2 is not involved in this appeal, car No. 3 was
driven by respondent Dolores Baber (hereinafter called Baber), and was struck by car No. 4
driven by appellant Henry (hereinafter called Henry) and owned by appellant Mercury
Cleaners, Inc. (hereinafter called Mercury). Pursuant to jury verdict, judgment was entered in
favor of Baber against Henry, Mercury and Ward, jointly and severally. The judgment was for
$20,000 general damages in favor of Baber and $3,250 in favor of her husband Ben Baber. In
answer to special interrogatories, the jury stated that its verdict in favor of Dolores Baber for
$20,000 general damages included special damages in the sum of $2,520 for wages lost as a
result of the accident.
Henry and Mercury appealed through their counsel and Ward appealed separately through
her counsel. The appeals were separately briefed and separately argued through such
respective counsel, although all arguments, pursuant to stipulation and order, were heard at
the same session of court.
(1) Henry and Mercury present but one assignment of error, namely, the action of the court
in sustaining an objection to a question propounded by them to Baber, called by them as
an adverse witness, on cross-examination.
75 Nev. 59, 62 (1959) Henry v. Baber
an objection to a question propounded by them to Baber, called by them as an adverse
witness, on cross-examination. The following took place on the second day of the trial: Q.
Mrs. Baber, you have testified that for a period of about two years before this accident you
earned on the average of $140.00 a month in your housework; is that true? A. Yes, sir. Q. Did
you report that amount to the government on your income tax returns?
The question last quoted was objected to on the ground that whether or not Mrs. Baber
reported this income on her income tax return is completely immaterial and irrelevant. The
objection was argued in the absence of the jury and sustained by the court.
Baber's wage loss resulting from her injuries was asserted in her complaint, was denied in
the answer of these appellants, was testified to by Baber, and was directly in issue. A failure
to report it in her 1954 and 1955 income tax returns would be tantamount to a statement
under oath that she had not received it. The relevancy and materiality of the question on
cross-examination are clear. The sustaining of the objection was error, and as the jury found
specially for Baber in the precise amount claimed, with this relevant and material evidence
excluded, the error was prejudicial. Our disposition of the appeal growing out of this error
appears below.
[Headnote 2]
(2) Ward assigns the foregoing and three additional errors. On direct examination of
plaintiff Ben Baber counsel asked: Q. Did you have any conversation with the defendant,
Mrs. Ward? A. That was very short. I went to get her name and her insurance company so I
could fill in my report. Ward immediately moved for a mistrial, which was denied. Ward
reiterates many times in her opening and reply briefs that error lies in the assertion before the
jury that she carried insurance. Ward and Baber argued at great length, and with citation of
many cases, the effect upon this issue of questions as to the responsiveness of the answer,
the inadvertence of the statement, the presence or absence of "purpose" in bringing the
information before the jury, the laying of the "fault" at the proper door, and allied
considerations.
75 Nev. 59, 63 (1959) Henry v. Baber
of purpose in bringing the information before the jury, the laying of the fault at the proper
door, and allied considerations. However, the answer quoted above cannot be characterized as
a statement or inference that Ward was covered by insurance. She either was or she was not.
Ben Baber did not know. So far as the evidence indicates he knew nothing about Ward or her
affairs. When he concluded his statement, the jury knew precisely what it had known in the
first placeno more, no less. Ward either (1) had insurance or (2) she did not. Such situation,
in combination with the court's finding that the question was not deliberately asked with
intent to bring the fact before the jury, and that the answer was entirely unexpected and
unsolicited, leads us to conclude that there was no error in denying the motion for mistrial.
[Headnote 3]
(3) Error is assigned by Ward in permitting Ben Baber to testify to a conversation between
him and Neil Ward out of the presence of defendant Ward. The question was propounded by
counsel for defendants Henry and Mercury who were interested in demonstrating that the
negligence, if any, that was the cause of the accident, was that of Ward in stopping her car on
the highway. When inquiry as to the conversation was made, it was objected to on the ground
that no proper foundation had been made, because of the absence of the other parties, and that
as to them the conversation would be hearsay. The court admitted the testimony as that of the
res gestae over counsel's objection that it was too remote. The witness testified: * * * [Neil
Ward] voluntarily told me that the lady in the front car was his wife and I asked himI said,
Well, what in the world did she stop in the middle of the highway for?' and he said, She was
looking for me' and so when she found him she stopped.
We devote our consideration of this assignment, not to the question of whether the
admission of the testimony was error, but rather to the question whether it was prejudicial.
75 Nev. 59, 64 (1959) Henry v. Baber
The point of the prejudice assigned is that Mrs. Ward testified that she slowed up, then she
heard the crash behind her and then stopped her car, and that Ben Baber's testimony was a
hearsay impeachment of Mrs. Ward's statement that she had only slowed up prior to the
collision. Ben Baber had already testified that it looked to him as if Mrs. Ward's car was
stopped. It may be that the jury could have understood from his testimony as to his
conversation with Mr. Ward that the latter stated that Mrs. Ward had stated that she had
stopped her car. But we see no prejudice in the situation. In the jury's finding of negligence
against Mrs. Ward, as well as against Henry and Mercury, there would appear to be little
distinction between Mrs. Ward's slowing and Mrs. Ward's stopping. There certainly would be
little or no distinction between her coming almost to a stop and coming completely to a stop.
The accident could as well have happened as the result of almost coming to a stop as well as
coming to a complete stop. The car ahead of Ben Baber had stopped whether as a result of
Mrs. Ward's slowing or stopping or coming almost to a stop. In either event it would have
been Mrs. Ward's conduct which had placed the Baber car in its vulnerable position. Ben
Baber had been unable to observe her brake lights as the second car was between her and Ben
Baber's car. He did see the brake lights go on upon such second car and he was able to stop
within a car length of such second car when he was immediately struck from behind by
Henry. Under these circumstances it is difficult to find prejudice in Ben Baber's testimony of
the conversation with Mr. Ward, assuming that its admission was error. We conclude that the
assignment in support of Ward's demand for reversal or new trial is without merit.
(4) Ward next contends that the judgment against her should be reversed because of
insufficient evidence showing that any conduct on her part was the proximate cause of
injuries to the plaintiffs; that any negligence on her part in stopping or slowing her car had
already been acted upon by all parties involved; that all vehicles had come to rest without
incident when Henry, driving the Mercury car, recklessly drove into the Baber car causing
all the damages which were suffered and thus that Henry's acts constituted the sole
proximate cause of the accident.
75 Nev. 59, 65 (1959) Henry v. Baber
the Mercury car, recklessly drove into the Baber car causing all the damages which were
suffered and thus that Henry's acts constituted the sole proximate cause of the accident. Ward
concedes that under such circumstances each case must stand or fall on its own particular
facts, and both parties argue the question of the foreseeability by Ward of the danger from
another car approaching from the rear. To this end the parties discuss at length questions of
the nature of the highway, visibility, traffic, etc. The answer to all this is that these factors
involve factual issues whose determination was essentially within the province of the jury,
and with which this court will not interfere. We must reject this assignment of error.
(5) Our main difficulty lies with the matter of disposing of the appeal in view of the court's
error as found in division (1) of this opinion. As to the issue of earnings and its impact upon
the jury resulting in a finding of $2,520 damages for loss of earnings, the evidence was
clearly material and its rejection clearly prejudicial. A new trial thus becomes necessary.
[Headnotes 4, 5]
Baber contends that the prejudice should be recognized to be limited to the issue of
earnings alone. Appellant Ward contends, however, that the prejudice extends to the general
verdict as well; that had the question been answered she might have been able to use that
answer as an impeachment of the witness with reference to her testimony of general damages.
This might be so if we are compelled to assume a negative answer to the question. But neither
Ward nor the court may indulge this presumption. The answer remains unknown. Absent any
showing that the answer would have tended to establish the fact that plaintiff had testified
falsely, the relevance of the inquiry to the issue of general damages has not been established
and, by the same token, it has not been established that the ruling was prejudicial entitling
Ward to a new trial upon such issue. It would not appear to be in the interests of justice or
sound administration of justice to remand the matter for a new trial of the issue of general
damages in order to permit Ward to ascertain whether she is in position to impeach the
credibility of Mrs.
75 Nev. 59, 66 (1959) Henry v. Baber
ascertain whether she is in position to impeach the credibility of Mrs. Baber. Ward had many
months before trial to effect discovery. She was indeed under no compulsion to utilize
discovery proceedings, but we feel that her failure to do so precludes her from asking this
court to assume that such discovery would have established any fact in any particular fashion.
[U]nless there is no room for doubt as to what the testimony of the witness would in all
probability have been [,] the exclusion of the evidence will not warrant a new trial. Rummels
v. Illinois Cent. R. Co. (Mo.App.), 15 S.W.2d 363. In Simonson v. Huff, 124 Wash. 549, 215
P. 49, appellant had been erroneously foreclosed from inquiring on cross-examination, for the
purpose of impeachment, as to the nature of the business in which respondent had been
engaged for many years in Yakima, after respondent had testified that he had been so
engaged. The court said, citing authorities, This court will not reverse the cause and put the
parties to the burden of a new trial on the mere chance that an answer favorable to the
respondents would have been returned. The court's error in excluding the testimony will
therefore not be presumed to extend beyond the particular issue to which the excluded
testimony was material, that is, the issue of lost wages.
For these reasons we conclude that as an alternative to new trial a remittitur damnum
relating to that portion of the verdict attributable to loss of earnings would be appropriate.
Reversed and remanded for new trial; provided, however, that if respondent Dolores Baber
file herein within 10 days from date of receipt of a copy of this opinion a remittitur damnum
to the extent of $2,520, the judgment, modified to the extent of such remission, will be
affirmed. Respondents are allowed their costs in this court.
____________
75 Nev. 67, 67 (1959) Williams v. Crusader Disc. Corp.
KATHELEEN WILLIAMS, Appellant, v. CRUSADER DISCOUNT CORP., a Corporation,
SAUL S. SILVERMAN, JAMBOREE, INC., a Corporation, K. H. VITT, and KARSTEN T.
BRONKIN, Respondents.
No. 4121
January 29, 1959 334 P.2d 843
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action involving loan agreements and guarantee agreements. One of the defendants filed a
cross complaint. The trial court entered order dismissing complaint, and the plaintiff
appealed. The Supreme Court, McNamee, J., held that where corporation borrowed money
from lender and gave notes, and corporation's president and the latter's wife guaranteed a
portion of the loan and as collateral security for their guarantee they assigned to lender a deed
of trust running to president and his wife as joint tenants, and corporation failed to pay
installments of principal and interest, and corporation and lender entered into a second loan
agreement which they intended to be a substitution for the first loan agreement, and the
president, without his wife, guaranteed the second loan, the wife was legally exonerated from
her guarantee agreement in that she did not consent to the novation, and since she was
released from her personal obligation as surety, her collateral security consisting of her
one-half interest in the trust deed was likewise discharged.
Reversed and remanded with directions.
Zenoff & Magleby, of Las Vegas, for Appellant.
Jones & Pursel, and Christensen & Bell, of Las Vegas, for Respondents.
1. Novation.
The substitution of a new obligation for an existing one effects a novation, which thereby discharges the
parties from all of their obligations under the former agreement inasmuch as such obligations are
extinguished by the novation.
2. Principal and Surety.
The novation of a contract, the performance of which is guaranteed by sureties who do not consent to the
novation absolves them of their liability, which disappears with the debt to which it was collateral.
3. Novation; Principal and Surety.
Any change in contract between creditor and principal which creates different duty of performance on
part of principal than that which surety guaranteed, discharges the surety, and the alteration of the original
contract between the creditor and the assenting debtor has the legal effect of discharging it by mutual
rescission, and substitutes therefor a new and different contract, and the surety cannot be held for
performance of the old contract so discharged; nor can he be held for the substituted contract the
performance of which he never guaranteed.
4. Novation; Pledges; Principal and Surety.
Where corporation borrowed money from lender and gave notes, and corporation's president and the
latter's wife guaranteed a portion of the loan and as collateral security for their guarantee they assigned to
lender a deed of trust running to president and his wife as joint tenants, and corporation failed to pay
installments of principal and interest, and corporation and lender entered into a second loan agreement
which they intended to be a substitution for the first loan agreement, and the president, without his wife,
guaranteed the second loan, the wife was legally exonerated from her guarantee agreement in that she did
not consent to the novation, and since she was released from her personal obligation as surety, her
collateral security consisting of her one-half interest in the trust deed was likewise discharged.
OPINION
This case involves four agreements, consisting of two loan agreements and two guaranty
agreements.
The parties will be referred to as follows: Katheleen Williams, plaintiff and appellant, as
Mrs. Williams; John H. Williams, her husband, one of the cross-defendants, as Mr. Williams;
Crusader Discount Corp., a defendant, cross-complainant, and respondent, as Crusader;
Jamboree, Inc., a defendant and respondent, as Jamboree; K. H. Vitt and Karsten T. Bronkin,
defendants and respondents, as Bronkin and Vitt.
On June 28, 1955 Crusader and Jamboree entered into an agreement under the terms of
which Crusader loaned Jamboree $6S,500 and Jamboree gave Crusader a note for $12,000
due October 1, 1955, and a further note for $56,500 due on March 27, 1957, with interest
on both notes due and payable quarterly.
Jamboree $68,500 and Jamboree gave Crusader a note for $12,000 due October 1, 1955, and
a further note for $56,500 due on March 27, 1957, with interest on both notes due and
payable quarterly. This agreement which hereafter shall be referred to as the first loan
agreement, further provided that in the event of nonpayment of any installment of principal or
interest on its due date, the entire unpaid balance would immediately become due and
payable.
Concurrently with the execution of this first loan agreement Mr. and Mrs. Williams
entered into a guaranty agreement of same date with Crusader wherein they guaranteed its
said loan of $68,500 to Jamboree to the extent of $59,280 and as collateral security for their
guaranty they transferred and assigned to Crusader a certain note secured by deed of trust
from Bronkin and Vitt to them as joint tenants in the principal sum of $59,280. This guaranty
agreement is hereinafter referred to as the first guaranty agreement.
Jamboree failed to pay the installments of principal and interest due October 1, 1955 to
Crusader.
On April 10, 1956 Crusader and Jamboree entered into a new loan agreement, hereinafter
referred to as second loan agreement, wherein Crusader reduced the original debt of $68,500
to $59,280, extended the times of payment of the first installment of interest and principal,
and otherwise substantially changed the first agreement.
This second loan agreement was executed by Jamboree through John H. Williams as its
president and Robert E. Jones as its secretary, and by Crusader through its president and
assistant secretary and recited: It is understood and agreed that this instrument constitutes the
full and complete understanding between the parties and the provisions herein contained may
only be amended by an instrument in writing executed by all of the parties hereto.
The second loan agreement provides further that: Concurrently with the execution of this
agreement, John H. Williams, a stockholder of Jamboree, has executed an agreement whereby
the said John H. Williams guarantees the said loan. In such guaranty agreement the said John
H.
the said John H. Williams warrants that there are no liens prior to the Deed of Trust securing
the debt of $59,280 due from Bronkin and Vitt to the said Williams.
The guaranty agreement referred to in said second loan agreement was also dated April 10,
1956, and will be referred to as the second guaranty agreement and although it recites it to be
the agreement of Crusader with Mr. and Mrs. Williams as guarantors, it is executed only by
Crusader and Mr. Williams. In this second guaranty agreement Mr. Williams guarantees the
loan contained in the second loan agreement, and it recites that he transfers and assigns to
Crusader the said Bronkin and Vitt note and trust deed as collateral security for the loan in the
second loan agreement.
No issue is made as to Mrs. Williams' ownership of a half interest in the Bronkin and Vitt
note and trust deed at the time the first guaranty agreement was executed; the primary
question before this court is what effect have these four agreements had on her said interest in
the Bronkin and Vitt note and deed of trust.
The parties to the first and second loan agreements were the same, and it is clear from the
terms of the second loan agreement that they intended to substitute the second loan agreement
for the first.
[Headnote 1]
This substitution of a new obligation for an existing one effects a novation, which thereby
discharges the parties from all of their obligations under the former agreement inasmuch as
such obligations are extinguished by the novation. 66 C.J.S., Novation, sec. 1, p. 681; 39
Am.Jur., Novation, sec. 2, p. 254.
[Headnote 2]
It is settled law that the novation of a contract, the performance of which is guaranteed by
sureties who do not consent to the novation absolves them of their liability, which disappears
with the debt to which it was collateral. 66 C.J.S., Novation, sec. 22, 39 Am.Jur., Novation,
sec. 27.
Guarantors and sureties are exonerated if the creditor, by any act done without their
consent, alters the obligation of the principal in any respect, or impairs or suspends the
remedy for its enforcement.
obligation of the principal in any respect, or impairs or suspends the remedy for its
enforcement. Where after breach of contract, the performance of which is guaranteed, the
creditor and principal debtor enter into a new contract by which the amount of damages then
due is made payable on a future day, and upon terms different from those imposed by the
original agreement, such new contract presumptively merges the old. In such a case the new
obligation * * * becomes the exclusive medium by which the rights of the parties in respect to
the payment of damages are to be ascertained. Such a contract is not collateral to the original,
but, in respect to the subject to which it appertains, it merges and supersedes the other. Weed
S.M. Co. v. Winchell, 107 Ind. 260, 7 N.E. 881, 884.
[A] surety is discharged by the novation of the debt; for he can no longer be bound for the
first debt for which he was a surety, since it no longer subsists, having been extinguished by
the novation; neither can he be bound for the new debt, into which the first has been
converted, since this new debt was not the debt to which he acceded. Frost v. Harbert, 20
Idaho 336, 118 P. 1095, 1096, 38 L.R.A. (NS) 875.
[Headnote 3]
The rule of law that a novation substituting a new obligation for an old releases the
guarantor of the old when the transaction is accomplished without his consent, has been
carried over into the law of suretyship, 72 C.J.S., Principal and Surety, sec. 155, p. 643; See
Restatement, Security, sec. 128, 129. Under the rules governing sureties it is sometimes
known as the rescission theory and can be stated as follows: Any change in the contract
between the creditor and principal which creates a different duty of performance on the part
of the principal than that which the surety guaranteed, discharges the surety. The alteration of
the original contract between the creditor and the assenting debtor has the legal effect of
discharging it by mutual rescission, and substitutes therefor a new and different contract. The
surety cannot be held for performance of the old contract so discharged; nor can he be held
for the substituted contract the performance of which he never guaranteed.
stituted contract the performance of which he never guaranteed. See Simpson, Suretyship, pp.
330, 331, 354.
Other reasons given for the discharge of the surety as applied to that kind of an alteration
of the original creditor principal debtor agreement which consists of an extension of time to
the principal debtor are: (1) The surety's right to pay the debt at its original maturity and to
proceed either by subrogation or reimbursement against the principal debtor has been
postponed by the extension of the maturity of the debt; and (2) an extension of time of
payment of the debt constitutes a material alteration of the surety's contract, in that the
surety's risk of the principal's nonperformance has been increased by the act of the creditor.
72 C.J.S., Principal and Surety, sec. 162.
[Headnote 4]
In applying these principles to the situation here, the inevitable conclusion is that Mrs.
Williams was legally exonerated from her guaranty agreement of June 25, 1955, upon all of
the grounds heretofore stated because the record shows that she did not consent to the
novation or to this new transaction, (second loan agreement) between the principal debtor and
creditor. Boteler v. Conway, 13 Cal.App.2d 79, 56 P.2d 587. Since she is released from her
personal obligation as surety, her collateral security consisting of her half interest in the
Bronkin and Vitt note and trust deed, likewise is discharged. 50 Am.Jur., Suretyship, sec. 45,
p. 935. She therefore is entitled to receive the value of this interest which, as appears from the
record has been liquidated by the payment in full of the Bronkin and Vitt note. Dehors the
record and only in the oral argument before this court, it was represented that all the proceeds
from the payments in satisfaction of said Bronkin and Vitt note have been paid over to
Crusader, except the sum of $4,000 which, with the consent of Mrs. Williams, was paid as a
commission to a real estate broker. This court has no way of determining from the record the
amount of money realized by Crusader through this source.
The trial was held upon the issues raised by the complaint of Mrs. Williams and a
cross-claim of Crusader.
The cross-claim set up as an exhibit thereto the second guaranty agreement between
Crusader and Mr. Williams which expressly refers to the new loan agreement between
Crusader and Jamboree, changing the amount of the loan and the terms relating thereto, and
reciting that the Bronkin and Vitt note is transferred, assigned and set over to Crusader as
collateral security for the loan being made this date (April 10, 1956) to Jamboree. All of the
allegations of this cross-claim were admitted by Mrs. Williams and she pleaded as an
affirmative defense to the cross-claim her discharge from her guaranty of June 28, 1955
because of this new guaranty agreement between Crusader and Mr. Williams, and she
introduced in evidence in support of this affirmative defense the second loan agreement, to
which the second guaranty agreement referred.
Upon the conclusion of Mrs. Williams' evidence, Crusader moved for a nonsuit
(involuntary dismissal) as to Mrs. Williams' complaint, and for entry of judgment in its favor
under the prayer of its cross-claim. The motion was granted and the trial court entered
judgment to this effect and decreed Crusader to be the owner of the Bronkin and Vitt note and
trust deed and entitled to the proceeds therefrom. Mrs. Williams' appeal is from this
judgment.
Based on the admissions in the pleadings and the evidence properly received with respect
to Crusader's cross-claim, this court concludes that the trial court erred in holding that
Crusader was the owner of the Bronkin and Vitt note and trust deed and entitled to all the
proceeds received therefrom; that it should have found for the reasons stated, that Mrs.
Williams was entitled to one-half of such proceeds.
The judgment is reversed and the case remanded for such further proceedings as may be
warranted after the trial court has set aside its order dismissing the complaint.
The appellant is allowed her costs.
____________
75 Nev. 74, 74 (1959) Pinana v. District Court
THELMA PINANA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT of the
State of Nevada, in and for the County of Washoe, Respondent.
No. 4180
January 30, 1959 334 P.2d 843
On petition for writ of mandate to compel the district court to direct that the petitioner be
allowed a pretrial inspection of certain statements made by her to the district attorney, the
results of certain blood alcohol tests and an autopsy report. The Supreme Court, Per Curiam,
held that the writ of mandamus would not lie.
Writ denied.
Gray and Young, of Reno, for Petitioner.
William J. Raggio, District Attorney, Washoe County, for Respondent.
1. Mandamus.
Mandamus will not lie to control the judicial discretion or to review the propriety of judicial action.
2. Mandamus.
Where petitioner accused of murder sought a writ of mandate compelling the district court to direct that
petitioner be allowed a pretrial inspection of certain statements made by her to the district attorney, results
of blood alcohol tests, and an autopsy report and the motion was denied by the court, mandamus would not
lie to review the propriety of the district court's action.
OPINION
Per Curiam:
Petitioner is accused of murder in a criminal trial now pending before respondent court.
She seeks a writ of mandate compelling respondent court to direct that she be allowed pretrial
inspection of certain statements made by her to the district attorney of Washoe County, the
results of certain blood alcohol tests, and an autopsy report.
A motion made by petitioner for an order requiring production of these documents was
denied by respondent court, and this proceeding was then brought.
75 Nev. 74, 75 (1959) Pinana v. District Court
production of these documents was denied by respondent court, and this proceeding was then
brought.
Petitioner contends that denial of her motion was an abuse of discretion on the part of
respondent court which has prejudiced her ability to prepare for trial.
It may well be that there is merit in this contention. We cannot reach the problem in this
proceeding, however.
[Headnotes 1, 2]
It is the settled law of this state that mandamus will not lie to control judicial discretion or
to review the propriety of judicial action. State ex rel. Phillips v. District Court, 46 Nev. 25,
207 P. 80; State ex rel. Webber v. McFadden, 46 Nev. 1, 205 P. 594; State v. Ninth Judicial
District Court, 40 Nev. 163, 161 P. 510.
Writ denied.
____________
75 Nev. 75, 75 (1959) State v. Olsen
THE STATE OF NEVADA, Ex Rel. Its Department of Highways, Appellant, v. RUTH
GARFINKLE OLSEN and WILLIAM HADLEY, Respondents.
No. 4172
February 3, 1959 334 P.2d 847
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
On application for stay of execution.
Condemnation proceeding. From a judgment of the trial court in favor of the property
owners, the state appealed. The Supreme Court, on an application by the state for a writ of
supersedeas in order that execution issued to property owners might be stayed pending
appeal, held that execution cannot properly be levied against the state in absence of statute
granting such right.
Ordered that writ of execution be quashed.
(See also 76 Nev.
----
.)
75 Nev. 75, 76 (1959) State v. Olsen
William E. Freedman, Deputy Attorney General, for Appellant.
Ernest S. Brown, of Reno, for Respondent Ruth Garfinkle; William L. Hammersmith, of
Reno, for Respondent William Hadley.
1. States.
Execution cannot properly be levied against the state in absence of statute granting such right.
2. Eminent Domain.
In proceeding on application to Supreme Court for a writ of supersedeas in order that execution issued to
property owners might be stayed pending appeal by state from an award of compensation in a
condemnation proceeding, claim that state should be compelled in the alternative to relinquish possession
of the premises or to pay into court a statutory sum was not properly before the Supreme Court. NRS
37.170.
OPINION
Per Curiam:
This appeal involves a judgment of condemnation granted by the trial court. The State has
taken this appeal from the award of compensation. The matter is now before us on a
preliminary application.
On December 8, 1958, one week after the taking of the appeal, the clerk of the court below
issued a writ of execution to the defendant-respondents. The State sought to quash the writ
and the court below has denied a motion to this effect. The State then applied to this court for
a writ of supersedeas in order that execution might be stayed pending this appeal.
[Headnote 1]
The writ of execution must be quashed for the reason that execution cannot properly be
levied against the State in the absence of statute granting such right. See 21 Am.Jur.,
Executions, secs. 32, 457; Anno. 42 A.L.R. 1464. Such legislation is not to be found in this
State.
[Headnote 2]
Respondents oppose the application for a supersedeas, contending that under NRS 37.170
the State should be compelled in the alternative to relinquish possession of the premises or
to pay into court the sums specified in that section.
75 Nev. 75, 77 (1959) State v. Olsen
compelled in the alternative to relinquish possession of the premises or to pay into court the
sums specified in that section.
If there be merit in respondents' contention the matter could be presented to the trial court.
The issue is not properly before us in these proceedings which relate solely to the propriety of
execution.
It Is Ordered that the writ of execution issued out of the court below be quashed.
____________
75 Nev. 77, 77 (1959) First Nat'l Bank v. District Court
FIRST NATIONAL BANK OF NEVADA, Executor of Estate of Luther B. Scherer, Executor
of the Estate of Jack Katleman, aka Jake Katleman, Ruth Schellange, Administratrix of the
Estate of A. F. Schellange, Joe Hall, Vic Hall, Frank Edds, Bernard Van Der Steen, Art
Stanley, and Las Vegas Club, a Copartnership, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA in and for the County of Clark, and
Nevada Industrial Commission, Respondents.
No. 4152
February 4, 1959 335 P.2d 79
Application for writ of prohibition to restrain respondent court from proceeding further
with pending action.
The Supreme Court, Merrill, C. J., held, inter alia, that where Industrial Commission made
award on basis of permanent total disability, and employee accepted benefits of such award,
in so doing employee accepted compensation in lieu of any common-law rights she might
have had, which amounted to accord and satisfaction of such common-law rights, and
accomplished a destruction of any right of action, merging it by accord with the compensation
award employee had accepted in its place.
Writ denied. To prevent misleading respondent court, advisory opinion added to effect
that while respondent court has jurisdiction to proceed it would be error to proceed further on
the merits.
(Petition for rehearing denied March 20, 1959.)
W. Bruce Beckley, of Las Vegas, for First National Bank of Nevada, Executor of the Estate
of L. B. Scherer.
Morse, Graves & Compton, of Las Vegas, for Bernard Van Der Steen.
Goldwater & Singleton, and Jones, Wiener & Jones, of Las Vegas, for Ruth Schellange,
Administratrix of the Estate of A. F. Schellange; First National Bank of Nevada, Executor of
the Estate of Jack Katleman, aka Jake Katleman, and Executor of the Estate of L. B. Scherer;
Joe Hall; Vic Hall; Frank Edds; Art Stanley; and Las Vegas Club, a Copartnership.
Paul D. Laxalt, of Carson City, for Nevada Industrial Commission.
Foley Bros., of Las Vegas, for the Eighth Judicial District Court of the State of Nevada, in
and for the County of Clark.
1. Workmen's Compensation.
The Industrial Commission's award of compensation on basis of permanent total disability did not
constitute res judicata so as to remove from courts the power to entertain common-law action against
employer for injuries sustained, since Nevada does not provide for judicial review of commission's award
and any attack upon commission's action must be in form of original action seeking trial de novo of issues
determined by the commission, and a collateral attack can be made to include a direct attack by bringing
commission in as a necessary party defendant.
2. Constitutional Law; Prohibition.
On application for writ of prohibition to restrain district court from proceeding with pending action for
personal injuries by plaintiff who had accepted a compensation award made by the Industrial Commission,
the Supreme Court's decisional considerations were limited to matters of jurisdiction and did not include
nonjurisdictional error, but to remain silent in face of district court's apparent misconstruction of prior
opinion of the Supreme Court would be to invite error in further proceedings below, rendering
those proceedings futile and necessitating further resort to the Supreme Court, so
that silence under such circumstances was neither necessary nor proper and hence
while Supreme Court rejects propriety of purely advisory opinion, advice under
circumstances was essential if proceedings were to be permitted to bear effectively
upon the case below and were not to mislead the trial court.
ceedings below, rendering those proceedings futile and necessitating further resort to the Supreme Court,
so that silence under such circumstances was neither necessary nor proper and hence while Supreme Court
rejects propriety of purely advisory opinion, advice under circumstances was essential if proceedings were
to be permitted to bear effectively upon the case below and were not to mislead the trial court.
3. Workmen's Compensation.
Where Industrial Commission made award on basis of permanent total disability, and employee accepted
benefits of such award, in so doing employee accepted compensation in lieu of any common-law rights she
might have had, which amounted to accord and satisfaction of such common-law rights, and accomplished
a destruction of any right of action, merging it by accord with the compensation award employee had
accepted in its place.
OPINION
Petitioners seek a writ of prohibition to restrain the respondent court from proceeding with
a pending action for personal injuries. The question involved is whether an award of
industrial compensation made by the Nevada Industrial Commission has barred the injured
person from asserting a common law right against her employers.
The action below, to which the writ is sought to be directed, is brought by Margaret Jean
McColl against these petitioners, asserting that she has suffered injury as a result of their
negligence. At the time of injury she was employed as a cocktail waitress at their
establishment in Las Vegas. The injury resulted from a gunshot fired by a patron of the
establishment.
The proceedings below have already been reviewed by this court upon appeal from
summary judgment in favor of defendants. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807.
The principal issue on that appeal was whether the evidence established as a matter of law
that the injuries arose out of and in the course of plaintiff's employment. We held that it did
not and remanded the case for further proceedings. It appeared from the record on that
appeal that the plaintiff had applied for compensation to the industrial commission and
had received certain sums as a consequence of her application.
on that appeal that the plaintiff had applied for compensation to the industrial commission
and had received certain sums as a consequence of her application. We held that these acts
did not constitute an election of remedies which would preclude her from asserting her
common law rights against her employers.
In the present proceedings the factual situation has been altered in the following respects.
The plaintiff's application to the Industrial Commission has never been withdrawn. On
July 17, 1957, a year after the taking of the former appeal, an award was made by the
commission upon the basis of permanent total disability. Plaintiff was awarded a total of
$199.50 a month for life. She has ever since accepted the benefits of this award.
These facts were presented to the respondent court upon a second motion by the
defendants below for summary judgment. The motion was denied and these proceedings
followed.
[Headnote 1]
Petitioners contend that the award of the commission constitutes res judicata and that it is
not subject to collateral attack; that it has ousted the courts of all jurisdiction to consider the
issues involved.
The authorities upon which petitioners rely in this connection are cases from jurisdictions
where, by statute, direct judicial review of commission action is provided. It would appear
clear where such procedure for direct judicial attack is provided, that collateral attack cannot
be permitted. Where such provision is made, the commission's determinations should be
given that finality and standing which would have resulted had they been affirmed upon
judicial review.
Nevada does not provide for judicial review. Any attack upon commission action must be
in the form of an original action seeking trial de novo of the issues determined by the
commission. Some form of judicial review certainly is appropriate. To insist that the attack be
a direct rather than a collateral one would seem overly technical under these circumstances. A
collateral attack, it would seem, could very simply be made to include a direct attack by
bringing in the commission as a necessary party defendant.
it would seem, could very simply be made to include a direct attack by bringing in the
commission as a necessary party defendant.
We are, therefore, disposed to reject the contention of petitioners that the industrial
commission's award constituted res judicata and removed from the courts any power to
entertain a common law action against the employer.
The writ, then, must be denied.
It appears from the record, however, although the trial court has jurisdiction to proceed,
that it would be error to proceed further with the merits of the case below. The denial by the
trial court of defendants' motion for summary judgment appears to have been based upon a
misconstruction of the extent of our holding in McColl v. Scherer, supra.
[Headnote 2]
It is true that upon this application for writ our decisional considerations are limited to
matters of jurisdiction and do not include nonjurisdictional error. Still, to remain silent in the
face of the trial court's apparent misconstruction, would be to invite error in further
proceedings below, rendering those proceedings futile and necessitating further resort to this
court.
Silence under these circumstances is neither necessary nor proper. While we reject the
propriety of purely advisory opinion by this court, we note in this case that our advice is
essential if these proceedings are to be permitted to bear effectively upon the case below and
are not to mislead the trial court.
Our opinion which follows, therefore, is included for the guidance of the trial court
through clarification of the extent of our earlier holding. The issues we here determine have
been fully briefed by counsel.
At the time of that appeal there had been no award by the industrial commission and no
acceptance of such award. There had been simply an application for compensation and the
payment of certain sums preliminary to the making of an award. The record in that appeal, as
mentioned in the opinion, did not disclose any factual findings by the commission or any
final determinations made by it which might have been deemed accepted by an
acceptance of payment.
findings by the commission or any final determinations made by it which might have been
deemed accepted by an acceptance of payment.
[Headnote 3]
At the present time not only has an award been made by the commission but that award
has now been accepted by the plaintiff below. In so doing the plaintiff has accepted the
industrial compensation so awarded in lieu of any common law rights she might have had.
This amounts to accord and satisfaction of such common law rights and has accomplished a
destruction of any right of action, merging it by accord with the compensation award she has
accepted in its place.
Such was the holding of the New York Court of Appeals in Brassel v. Electric Welding
Company of America, 239 N.Y. 78, 145 N.E. 745, 746. In that case the court, speaking
through Cardozo, J., stated, We think the acceptance of the payment has destroyed the right
of action. The question is not whether the award has the effect of a binding adjudication. We
may assume that it is void, and that, at least while unpaid, it might have been set aside or
disregarded. * * * The question is whether a right of action has survived the collection of the
award and the retention of the proceeds. The plaintiff made claim under the statute and must
be charged with knowledge of its provisions. The statute provides * * * that the liability of an
employer thereunder shall be exclusive and in place of any other liability whatsoever' on
account of the injury sustained by the employee. In the light of this provision, the employer,
when it tendered payment of the award, affixed by implication the condition that the tender
was made upon the statutory terms. The employee, by accepting payment, signified his assent
to the condition, and his willingness to receive the money upon the terms thereby imposed.
The transaction thus resulted in an accord and satisfaction.
Respondents, opposing this position, contend that the acceptance of the award should not
destroy the common law cause of action but, at most, renders the plaintiff below liable for a
return to the commission of the sums accepted by her.
below liable for a return to the commission of the sums accepted by her. They rely on Parker
v. Pantages Theater, 143 Wash. 176, 254 P. 1083, 1085, where it is stated, * * * [Plaintiff] is
not to be penalized for the mistaken belief that he had a right under the compensation act.
* * * The fact that he may have received something to which he is not entitled but which he
must return, does not foreclose him from exercising the rights which he originally had.
Whatever effect true mistake may have in preventing an accord from resulting, it can
hardly be said that plaintiff below accepted the commission's award under a mistaken belief.
She did so with full knowledge, for her common law cause of action had already been
asserted by her.
To permit the action below to proceed under these circumstances would be to encourage
every injured employee to seek a commission award, accept it, and follow it with a common
law action against his employer. This would be in direct conflict with the intent and spirit of
industrial compensation.
With this clarification of McColl v. Scherer, supra, for the guidance of the court below,
It Is Ordered that peremptory writ of prohibition is hereby denied and these proceedings
are dismissed.
____________
75 Nev. 84, 84 (1959) In Re Petition of Reid
In the Matter of the Petition of DALLAS WENDELL REID,
for Review of Bar Examination, 1958.
No. 4174
February 6, 1959 335 P.2d 76
Petition for review of action of Board of Bar Examiners in recommending that petitioner
be denied admission to the bar. The Supreme Court, Per Curiam, held that review petition
allegations were insufficient to satisfy requirements of court rule.
Upon motion of the Board of Bar Examiners that petition be dismissed; Petition
dismissed with leave to amend.
(See also 76 Nev.
----
.)
Dallas Wendell Reid, of Goldfield, in propria persona.
Richard W. Blakey, of Reno, for State Board of Bar Examiners.
1. Attorney and Client.
Under rule requiring petition for review to show that applicant was prevented from passing bar
examination through fraud, imposition or coercion or that he was prevented by Board of Bar Examiners
from having a fair opportunity to take examination, the Board and the court are entitled to know facts upon
which petitioner's contentions are based; and rule does not contemplate or intend that discovery of facts
may follow filing of petition. Supreme Court Rules, Rule I, subd. 7.
Review petition allegations that grades assigned to petitioner's written examination by board were not
based upon same considerations as grades assigned to some of applicants who were admitted as result of
examination and that at least one member of board had openly expressed prejudice against petitioner in
presence of two witnesses whose testimony or affidavits could be supplied, were insufficient to satisfy
requirements of rule. Supreme Court Rules, Rule I, subd.7.
OPINION
Per Curiam:
Petitioner in 1958 sought admission to the bar of this state. This court, by order entered
November 5, 1958, denied him admission upon recommendation of the State Board of Bar
Examiners and its report that petitioner had failed to pass the written examination given
by the board.
denied him admission upon recommendation of the State Board of Bar Examiners and its
report that petitioner had failed to pass the written examination given by the board. Petitioner
has applied to this court for a review of the action of the board.
Rule I(7) of the rules of this court provides, Such petition [for review] shall show therein
that such applicant was prevented from passing through fraud, imposition or coercion, or that
he was prevented from a fair opportunity to take the examination by the Board of Bar
Examiners.
[Headnotes 1, 2]
The Board of Bar Examiners, without answering the petition, has filed a motion for an
order dismissing the petition for review upon the ground that it does not make the factual
showing required by rule. The motion must be granted upon this ground.
The allegations of the petition consist of conclusions, ultimate facts and immaterial matter.
Such facts as are alleged are not of a probative nature. Bias, prejudice, fraud, imposition and
coercion are alleged generally. It is alleged, That the grades assigned to his written
examination by the Board of Bar Examiners were not based upon the same considerations or
judged by the same standards as the grades assigned to some of the applicants who were
admitted as a result of the 1958 Bar Examination. And further, that, at least one member of
the Board of Bar Examiners * * * openly expressed prejudice against petitioner in the
presence of two witnesses whose testimony or affidavits can be supplied.
Allegations of this nature might be held sufficient to satisfy the requirements for pleading
under NRCP. They are not sufficient in proceedings such as these, where probative facts must
be alleged. This court and the Board of Bar Examiners are entitled, under Rule I(7) to know
the facts upon which petitioner's contentions are based. The rule does not contemplate or
intend that discovery of the facts may follow the filing of the petition. The facts must form
the basis of the petition itself and no petition will be entertained in the absence of
adequate factual showing.
and no petition will be entertained in the absence of adequate factual showing.
Motion to dismiss granted without prejudice to the filing of an amended petition herein
within thirty days.
____________
75 Nev. 86, 86 (1959) Tolboe v. Peccole
IRWIN D. TOLBOE, dba Irwin D. Tolboe Construction Company, Appellant, v. WILLIAM
PECCOLE, PETER PICCOLI, DON D. ATKIN and MAE ATKIN, CHARLES L. MARTIN
and OLLIE MAE MARTIN, Respondents.
No. 4117
February 6, 1959 335 P.2d 77
Department No. 2.
Action by vendors to quiet title to land which had been the subject of a contract of sale. A
defendant who claimed to be the assignee of all the rights of one of the purchasers filed
counterclaim for recovery of the initial payment. The trial court entered decree quieting title
and denying relief on the counterclaim. Defendant appealed from that portion of the decree
denying relief on the counterclaim. The Supreme Court, McNamee, J., held that provision in
contract for sale of realty that upon default of purchasers the sum deposited by them would be
forfeited merely gave the vendors the choice of enforcing their full rights against the
purchasers or of claiming the amount deposited as liquidated damages and the provision was
legally enforceable as such and was not a penalty.
Affirmed.
Milton W. Keefer, of Las Vegas, for Appellant.
Earl and Earl, of Las Vegas, for Respondents.
1. Quieting Title.
In vendors' action to quiet title to land which had been subject of contract of sale, where defendant who
claimed to be assignee of one of the purchasers filed counterclaim for recovery of the initial payment and
during the trial disclaimed any interest in the property, decree quieting title was proper.
2. Evidence.
In vendors' action to quiet title to land which had been subject of contract of sale, where defendant who
claimed to be assignee of one of the purchasers filed counterclaim for recovery of the initial payment on
ground that provision in sale agreement permitting its retention by vendors on default amounted to a
forfeiture and was against public policy and void, testimony of witness concerning a conversation he had
with vendors prior to execution of written contract of sale did not alter the terms of the written contract but
related solely to damages suffered by vendors as result of purchasers' breach and was properly admitted in
defense of issue raised by counterclaim.
3. Pleading.
Where plaintiffs rested and defendant's motion for dismissal of complaint was denied and defendant put
on his evidence in support of his counterclaim and rested, defendant was not in any way limited by the trial
court either in his proof or defense and he could not assert that the trial court erred in limiting proof to the
main action.
4. Damages.
Provision in contract for sale of realty that upon default of purchasers the sum deposited by them would
be forfeited merely gave the vendors the choice of enforcing their full rights against the purchasers or of
claiming the amount deposited as liquidated damages and the provision was legally enforceable as such and
was not a penalty.
OPINION
This is an appeal from the judgment and order denying a new trial. Appellant was one of
the defendants below. Respondents were the plaintiffs below.
Respondents brought an action to quiet title to that certain land located in Las Vegas,
Clark County, Nevada, which had been the subject of a contract of sale between respondents
as sellers and Towne and Country Shopping Center, Inc., a corporation, and others as buyers.
All of the defendants below defaulted, filed disclaimers, or executed quitclaims in favor of
respondents, except appellant who claims to be the assignee of all of the rights of Towne and
Country Shopping Center, Inc., under the various instruments constituting the contract of
sale.
rights of Towne and Country Shopping Center, Inc., under the various instruments
constituting the contract of sale.
The purchase price of the land was $900,000 of which the buyers agreed to pay $50,000 as
an initial payment and the balance of $850,000 in the form of a note secured by a deed of
trust against the property being sold.
The contract specifically provided that it was contingent upon the city rezoning part of the
property and that the said initial payment of $50,000 would be made upon said rezoning; and
it was further provided that any terms and conditions imposed by the City of Las Vegas with
reference to the rezoning of said property shall be incorporated in this agreement as an
obligation of the purchasers to the vendors and any failure on the part of the purchasers to
comply with said municipal requirements shall constitute a breach of this agreement.
The city rezoned the property subject to the condition that construction be commenced
within five months, and thereafter the $50,000 was placed in escrow and ultimately delivered
to respondents.
Upon the purchasers thereafter being unable to obtain a construction loan, and not
commencing construction within the said period of five months or at all, and otherwise failing
to perform their agreement, the sellers gave the buyers formal notice of default and
termination of option to purchase, and declared that they were retaining any sums paid to
them as liquidated damages.
Appellant filed with his answer a counterclaim for the said $50,000 received by
respondents, contending that the provision in the sale agreement
1
permitting its retention by
the sellers on default amounted to a forfeiture, was against public policy and void.
____________________

1
Paragraph 11 of said agreement provides: It is further mutually understood and agreed by and between the
parties hereto that the sum of FIFTY THOUSAND ($50,000) DOLLARS to be placed in escrow on the rezoning
of this property, shall be security for the faithful performance of this agreement and in the event of breach of this
agreement or any default therein, not agreed to in writing by the Vendors, will result in forfeiture of said sum of
$50,000.00, it being agreed by and between the parties hereto that due to the nature of the contract it would be
difficult to ascertain the exact amount of damages suffered by Vendors because of reason of the breach thereof.
retention by the sellers on default amounted to a forfeiture, was against public policy and
void.
[Headnote 1]
Appellant during the trial disclaimed any interest in the property and therefore the decree
quieting title thereto was proper.
On this appeal we are concerned only with appellant's demand under his counterclaim. If
he has any rights at all they are derivative from Towne and Country Shopping Center, Inc.
[Headnote 2]
Error is assigned in admitting testimony of Hal Thompson concerning a conversation he
had with respondent Peccole prior to the execution of the written instruments under the
contention that such evidence tended to alter the terms of the writings. This testimony in no
way altered the terms of the written agreements but related solely to the damages suffered by
respondents as a result of purchasers' breach of contract. It was properly admitted in defense
of an issue raised by counterclaim.
[Headnote 3]
Appellant next asserts that the court erred in limiting proof to the aspect of quiet title
alone. This is not the fact. After the respondents had rested, appellant moved for a dismissal
of the complaint. This motion was denied. The appellant then put on his evidence in support
of his counterclaim and rested. Appellant was not in any way limited by the trial court either
in his proof or defense.
[Headnote 4]
As his next assignment of error, appellant contends in effect that as the assignee of all the
rights of Towne and Country Shopping Center, Inc., he is entitled to the $50,000 paid to the
respondents. His reasoning is as follows: The stipulations for its payment to the respondent
are void as opposed to public policy because they have the legal effect of a penalty; there had
been no default in performance by the purchasers; the contract of sale was impossible of
performance; there was a mutual rescission of the agreements by the sellers and
purchasers; the purchasers' performance was excused by the nonperformance of the
sellers.
was impossible of performance; there was a mutual rescission of the agreements by the sellers
and purchasers; the purchasers' performance was excused by the nonperformance of the
sellers.
The trial court found contrary to these contentions of appellant and there is competent
evidence to sustain these findings of the court. No further discussion of these matters seems
warranted except with respect to the question of forfeiture.
The agreements between the buyers and sellers here were in legal effect a contract for the
sale of realty. The provision therein that upon default of the purchasers the sum of $50,000
deposited by them would be forfeited, merely gave the sellers the choice of enforcing their
full rights against the buyers or of claiming the amount deposited as liquidated damages.
Thompson v. Exchange Bldg. Co., 157 Tenn. 275, 8 S.W.2d 489, 60 A.L.R. 693.
If the respondents had chosen to enforce their full rights the damages would have been
uncertain and difficult to prove. They had a right to choose to accept the stipulated amount,
and it is apparent from the wording of the contract that the buyers intended they should have
that right. The amount is not unconscionable considering the subject matter of the agreement,
and all the facts and circumstances under which the contract was made.
We hold therefore that the provision is in legal effect a provision for liquidated damages,
legally enforceable as such and is not a penalty. Shields v. Early, 132 Miss. 282, 95 So. 839;
Armstrong v. Irwin, 26 Ariz. 1, 221 P. 222, 32 A.L.R. 609.
The appellant, not having proved the allegations of his counterclaim, is entitled to no
relief.
Affirmed with costs.
____________
75 Nev. 91, 91 (1959) Zeigler v. Moore
EULA LOVELL ZEIGLER, Appellant, v. ROBERT MOORE, Administrator of the Estate of
AL CHRIST, Deceased, Respondent.
No. 4092
February 9, 1959 335 P.2d 425
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
Action for damages sustained in an automobile collision wherein the defendant died prior
to trial. From an order and judgment of involuntary dismissal in the trial court the plaintiff
appeals. The Supreme Court, Badt, J., held that excluding testimony of sheriff as to
statements made to him by the decedent as to how the accident happened was reversible error;
that plaintiff's testimony as to medical bills and suffering which the decedent could not have
contradicted of his own knowledge were admissible notwithstanding the dead man's statute;
and that such statute did not preclude the plaintiff's description of her own actions and road
conditions prior to the point of collision when the decedent could have contradicted the
plaintiff's testimony of his own knowledge.
Reversed and remanded for new trial.
A. D. Jensen, of Reno, for Appellant.
Goldwater, Taber & Hill, of Reno, for Respondent.
Where plaintiff moved for an order for production of documents taken by an insurance adjuster, denial of
the motion was not prejudicial where correct copies of the original statement were produced in open court
and read into the record and were a part of the record on appeal. NRCP 34.
2. Witnesses.
Statutory exclusion of testimony of witnesses under the dead man's statute does not apply to disinterested
third persons. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
3. Witnesses.
In action for damages sustained in an automobile collision, where defendant died prior to trial, and where
there was testimony of sheriff that defendant after the accident had made a report and in his conversation in
making the report talked to the sheriff about how the accident happened, excluding testimony of
sheriff in answer to question "What did he tell you?" because of the dead man's
statute was error.
testimony of sheriff in answer to question What did he tell you? because of the dead man's statute was
error. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
4. Appeal and Error; Witnesses.
In action for damages sustained in an automobile collision, excluding testimony of sheriff as to what
defendant told him about the accident under the dead man's statute where the defendant died before trial
was prejudicial error notwithstanding claim that such testimony would establish only that the accident had
occurred without negligence where at the time of the offer there had been no evidence that the car of the
defendant had struck the plaintiff's car in the rear as claimed. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
5. Witnesses.
The dead man's statute applies to actions ex delicto and such actions are embraced within the statutory
use of the word transactions within the statute. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
6. Witnesses.
The whole object of the dead man's statute is to place the living and dead on terms of perfect equality,
and the dead not being able to testify, the living shall not. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
7. Witnesses.
In action for damages sustained in automobile collision, where the defendant died prior to trial, dead
man's statute would not preclude the plaintiff's description of her own actions and road conditions prior to
the collision when within the limitations of time or space the decedent could have contradicted her
testimony of his own knowledge. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
8. Witnesses.
In action for damages in an automobile collision, where defendant died prior to trial, plaintiff's testimony
as to her medical bills, pain and suffering and matters of like nature which the decedent could not have
contradicted of his own knowledge were not excludable under the dead man's statute, and the rejection of
such testimony was prejudicial error. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
9. Witnesses.
The lines delimiting the actual transaction within the dead man's statute within the knowledge of the
decedent must be drawn by the trial court, and whether the lines are drawn within the limits of space or
time within which the matters were under observation of the decedent or both must be likewise determined
by the trial court. NRS 48.010, subd. 1 (a, b), 48.030, subd. 3.
10. Witnesses.
In action for damages sustained in an automobile collision, where defendant died prior to trial and the
collision occurred in a desert without witnesses other than the parties, application of the dead man's statute
was not precluded on the ground that the effect thereof would be to destroy the statute
providing for survival of tort actions against the estate of a decedent.
that the effect thereof would be to destroy the statute providing for survival of tort actions against the estate
of a decedent. NRS 48.010, subd. 1(a, b), 48.030, subd. 3.
11. Constitutional Law.
That the application of the dead man's statute in a particular instance results in harsh and unjust results is
a matter of public policy and a matter for consideration by the Legislature rather than the court.
OPINION
This appeal is taken from an order and judgment of involuntary dismissal entered on
defendant's motion under rule 41(b) NRCP at the conclusion of plaintiff's case.
Plaintiff sued one Al Christ for damages alleging that her automobile was struck in the rear
by a car negligently operated by Christ in August 1955 on Highway 40 about one and
one-half miles west of Winnemucca, while plaintiff was driving easterly toward that city.
Christ answered, denying negligence but admitting a collision between the two cars. He also
pleaded plaintiff's contributory negligence. Christ died in May 1957 and Robert Moore was
substituted as his administrator before trial. At the trial the court excluded under the dead
man's rule certain testimony of the plaintiff and of plaintiff's witness, sheriff Delbert Moore.
These and other rulings are assigned as error.
[Headnote 1]
(1) An insurance adjuster had taken statements from both plaintiff and the decedent, which
statements were written in longhand by the adjuster and signed by the parties. Plaintiff moved
under Rule 34 for an order for the production of these documents so that the same might be
inspected and copied, and assigns error and prejudice in the denial of such motion. The record
shows, however that a true and correct copy of the original statements taken was produced in
open court and read into the record and is actually a part of the record on this appeal.
this appeal. If a discovery of the nature and contents of the statements was necessary to the
prosecution of plaintiff's case, copies of the statements were before her. It is so evident that
plaintiff was in no way prejudiced by the denial of her motion that discussion of the error
assigned is unnecessary.
(It should be noted that plaintiff had been permitted to read the copies of the statements
into the record for the purpose of making an offer of proof. She then offered the copy of her
own statement in evidence. An objection was sustained on the ground that if her direct
testimony was inadmissible under the dead man's rule her extrajudicial statement was, a
fortiori, inadmissible. Plaintiff then offered the copy of the statement made by the decedent,
but immediately withdrew the offer. All of this was without the presence of the jury. It may
be noted also that no objection was made to either statement on the ground that it was a
copy.)
(2) Delbert Moore, sheriff of Humboldt County, testified that Christ, after the accident,
had come to the office and made an accident report and, in his conversation in making the
report, talked to the witness about how the accident happened. He was then asked: What
did he tell you? Objection on the ground that this witness is rendered incompetent by
reason of 48.010 NRS was sustained.
The statute commonly known as the dead man's rule now appears, in pertinent part, in our
codes as NRS 48.010 and 48.030, as follows:
48.010 1. All persons, without exception, otherwise than as specified in this chapter,
who, having organs of sense, can perceive, and perceiving can make known their perceptions
to others, may be witnesses in any action or proceeding in any court of the state. Facts which,
by the common law, would cause the exclusion of witnesses, may still be shown for the
purpose of affecting their credibility. No person shall be allowed to testify:
(a) When the other party to the transaction is dead.
(b) When the opposite party to the action, * * * is the representative of a deceased person,
when the facts to be proven transpired before the death of such deceased person; * * *
to be proven transpired before the death of such deceased person; * * *
48.030 The following persons cannot be witnesses:
3. Parties to an action * * * against an executor or administrator upon a claim or demand
against the estate of a deceased person, as to any matter of fact occurring before the death of
such deceased person.
The present statute as thus quoted is its present form after having been subjected to a
number of amendments, all of which modified the common law rule disqualifying as
witnesses all persons interested in the event of the action, generally recognized to mean that
the witness would either gain or lose by direct legal operation or effect of the judgment. It
should be noted that such rule was one of disqualification of witnesses and did not relate to
the witness's testimony.
[Headnotes 2, 3]
The error assigned in sustaining the objection to the testimony of sheriff Delbert Moore as
to statements made to him by the decedent is well taken. The statutory exclusion of the
testimony of witnesses under the sections above quoted has been consistently held by this
court not to apply to disinterested third persons. Burgess v. Helm, 24 Nev. 242, 51 P. 1025;
Kimble v. First National Bank, 73 Nev. 25, 307 P.2d 615; Onesti v. Samoville, 48 Nev. 441,
233 P. 846; Su Lee v. Peck, 49 Nev. 124, 240 P. 435; Bright v. Virginia and Gold Hill Water
Co. (C.C. 9th) 270 F. 410.
[Headnote 4]
Respondent contends that even if the order excluding Delbert Moore's testimony was error,
it could not possibly have prejudiced appellant, was harmless error and not ground for
reversal. Respondent bases this contention upon the offer of proof that followed the court's
ruling, namely, that the sheriff would testify that Christ told him shortly after the accident
that he, Christ, hit the plaintiff's car in the rear end, and that's the end of the offer of proof,
your Honor. Respondent contends that such testimony would establish the mere fact that an
accident had occurred without any inference of negligence.
gence. At this point, however, there had been no evidence in the case that Christ's car had
struck appellant's car in the rear. While it is true that this fact alone would not necessarily
establish negligence on Christ's part, there can be no doubt that it would constitute a part of
such proof. The exclusion of the evidence was therefore prejudicial. New trial must be
ordered.
(3) Appellant assigns as error the court's ruling precluding appellant from testifying as to
any fact prior to Christ's death. The position taken by the respective parties is somewhat
confusing. Respondent, in support of the court's ruling, recites the way the issue arose as
follows: At the trial appellant was called as a witness in her own behalf to testify to the facts
of the accident and says that the question presented is whether the survivor of an
automobile accident can give uncontradicted testimony as to the manner in which the
collision occurred when the lips of the other party are sealed by death. However,
respondent's objection as made in the trial court and the rulings which the trial court was
prevailed on to make by reason of such objection were far broader than the enunciation of the
proper rule sought from this court and as expressed in italics above. Plaintiff took the stand
and was asked, Will you please state your name? Objection was made that the plaintiff is
rendered incompetent [to testify] under the so-called Nevada dead man's statute. Thereupon
the jury was excused and over thirty pages of the transcript are devoted to argument,
whereupon the objection was sustained. Thereupon the following took place: Mr. Jensen:
Now, just so I understand the court's ruling, * * * that means that under the court's ruling that
plaintiff cannot testify as to any fact prior to May 11th, 1957, May 11th being the death of the
decedent? Right? Mr. Taber: Well, that is the basis of my objection, yes. The court: Yes. Mr.
Jensen: So then any fact that occurred prior to May 11, 1957, that relates to the medical bills
sustained, and relates to any other facts related to the accident? Mr. Taber: Medical bills
haven't been offered. Mr. Jensen: Yes. So the ruling would exclude them? The court: Yes.
Appellant then proceeded to make an offer of proof including her age, place of
employment, rate of employment, nature and hours of employment, her leaving of her place
of employment, the route pursued by her, the nature of the road, visibility, traffic, the striking
of her car from behind, her confinement in the hospital, her doctor bills, the amount of her
lost wages and her pain and suffering.
She also offered to testify that, presumably at the time when defendant was close enough
behind her to have observed the matters testified to and could have contradicted the same of
his own knowledge, at no time prior to the time of collision did she cause the brakes to be
applied in a sudden manner, nor did she indicate that she was going to make either a left or a
right turn * * * that her car was suddenly and without warning hit from the rear.
The offer of proof was objected to in its entirety and was denied in its entirety.
Appellant now contends as follows: She is not attempting to testify that the decedent's car
was driven in a reckless manner. She is not by any direct statement or inference attempting to
fix blame or attach fault to any person. Stating it succinctly, she merely desires to testify that
she was driving down the highway in the proper lane, at a speed reasonable under the
circumstances and that thereafter her car was struck in the rear.
It will thus be seen that on the one hand respondent obtained an exclusionary ruling far
broader than the one he now seeks to sustain; and on the other hand appellant sought, by her
offer of proof, to testify in far wider scope than she now claims admissible.
[Headnotes 5-9]
Appellant insists first in this respect that she is not precluded from testifying under NRS
48.010(1)(a) because the decedent cannot be said to be the other party to the transaction
inasmuch as no transaction was involved; that a tort action is not a transaction. There is
indeed some authority to support this view. See Shaneybrook v. Blizzard, 209 Md. 304, 121
A. 2d 218 {1956).
(1956). In many cases this is based upon the wording of the particular state statute involved
and is of no assistance here. The Maryland case just cited, for example, expresses a
preference for the New York rule. The New York statute, however, definitely fixed the
exclusion as applying to testimony concerning a personal transaction or communication
with the decedent. The overwhelming weight of authority supports the rule that the dead
man's statute applies to actions ex delicto and that such actions are embraced within the
statutory use of the word transactions. 97 C.J.S. 565, Witnesses, sec. 133, n. 92; 58.
Am.Jur. 151, Witnesses, sec. 223. In Warren v. DeLong, 59 Nev. 481, 97 P.2d 792, this court
had under consideration our statute providing that if the defendant omit to set up a
counterclaim arising out of the transaction he could not afterward maintain an action
against the plaintiff therefor. NCL 1929, secs. 8603, 8604. This court there held that the term
transaction was broader than contract and broader than tort and that it might include
either or both. It approved the setting up of a counterclaim for conversion under such statute.
If then we apply the statute to tort actions as well as personal transactions between the
parties the testimony of the plaintiff was properly excluded under the holdings of this court in
earlier cases, defining the purpose and extent of the rule with reference to those matters which
the decedent could have contradicted of his own knowledge. By the same token, the
appellant's testimony as to her medical bills, her pain and suffering and matters of like nature
which the decedent could not have contradicted of his own knowledge, was clearly
admissible and the rejection of such testimony was prejudicial error.
Those items were entirely beyond the operation of the reasons for the rule of exclusion
repeatedly enunciated by this court: To prevent the living from obtaining unfair advantage
because of death of the other. Maitia v. Allied L. & L. S. Co., 49 Nev. 451, 248 P. 893. Nor
shall the living be entitled to the undue advantage of giving his own uncontradicted and
unexplained account of what transpired beyond possibility of contradiction by the decedent.
by the decedent. Reinhart v. Echave, 43 Nev. 323, 185 P. 1070, rehearing denied 43 Nev.
323, 187 P. 1006. The whole object of the code provision is to place the living and dead on
terms of perfect equality, and, the dead not being able to testify, the living shall not. Bright v.
Virginia and Gold Hill Water Co. (C. C. 9th) 270 F. 410. The object of the statute is to
prevent one interested party from giving testimony when the other party's lips are sealed by
death. Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505. But when the above stated reasons
for the rule do not appear, this court has not hesitated to admit in evidence the testimony of an
interested party. Goldsworthy v. Johnson, supra; Maitia v. Allied L. & L. S. Co., supra;
Hough v. Reserve Gold M. Co., 55 Nev. 375, 35 P.2d 742; Edmonds v. Perry, 62 Nev. 41,
140 P.2d 566. Therefore the rule would not preclude plaintiff's description of her own actions
and the road conditions prior to the point when within limitations of time or space the
decedent could have contradicted her testimony of his own knowledge.
The lines delimiting the actual transaction within the knowledge of the decedent must be
drawn by the trial court. Whether these lines are drawn within limits of space or within limits
of time within which matters were under the observation of the decedent, or both, must
likewise be determined by the trial court.
[Headnotes 10, 11]
(4) Finally it is contended by appellant that the effect of our statute providing for the
survival of tort actions against the estate of a decedent (NRS 41.110) is entirely destroyed by
application of the dead man's rule in cases such as the present one where the collision occurs
in the desert without witnesses other than the parties. This is not necessarily so. In virtually
all cases much physical evidence is availableskid marks, tire tracks, the condition of the
respective cars involved showing the nature of the collision, etc. Appellant further contends
that inasmuch as the application of the dead man's rule is condemned by all writers of the law
of evidence as leading to harsh and unjust results (see Wright v. Wilson, 3 Cir., 154 F.2d 616,
170 A.L.R. 1237) this court should not, in a situation that is res integra in this state,
extend its application to tort actions.
not, in a situation that is res integra in this state, extend its application to tort actions. This,
however, is a matter of public policy, in which are balanced against each other the chance of
injustice in individual cases on the one hand and the protection of estates from fraudulent
demands on the other. A change of policy having such far-reaching results should be a matter
for consideration by the legislature rather than of the court. Miller v. Du Bois, 153
Cal.App.2d 310, 314 P.2d 27 (1957) (hearing denied).
____________
75 Nev. 100, 100 (1959) Flick v. Nev. Fish and Game Comm'n
MARGARET FLICK, THE CRUMMER CORP., R. E. CRUMMER, KENDRICK
JOHNSON, ENID JOHNSON, DOROTHY C. CAFFREY, DR. and MRS. E. S. D.
MERCHANT, B. MENZI, WILLIAM KEITH SCOTT, KAROL KOCH, V. L. SMITH, L. V.
REDFIELD, MR. and MRS. VIRGIL SMITH, LESLIE FARETTO, ARNOLD S. PAGE,
MR. and MRS. H. H. HOLLOWAY, FREEMAN C. BURCHETTE, JOSEPH PATRUCCO,
BARRETT P. LAUDER, R. L. KAIPER, O. F. KISTLER, GLEN H. FREY, MR. and MRS.
JOE B. FERETTO, MR. and MRS. ROBERT SCHOUWEILER, ELI FRANCOVICH,
HARRY T. ROGERS, FRANK W. GREEN, MR. and MRS. ERIC JACKSON, DR. and
MRS. GEORGE FARRELL, MILTON F. STEARNS, MR. and MRS. E. S. YOAKAM, W.
E. LYNCH, MR. and MRS. EMERY KERY, Appellants, v. NEVADA FISH AND GAME
COMMISSION, and WASHOE COUNTY GAME BOARD, Respondents.
No. 4089
February 16, 1959 335 P.2d 422
Department No. 2.
Suit to enjoin commission from opening rural area to hunting. The trial court denied the
relief sought and an appeal was taken. The Supreme Court, Badt, J., held that if Fish and
Game Act had authorized hunters to hunt upon privately owned lands without permission of
owners it would have violated state and federal constitutions, but held that such Act did not,
either expressly or by necessary implication, authorize a trespass of any nature upon privately
owned lands.
Affirmed.
Kendrick Johnson, of Reno, for Appellants.
Harvey Dickerson, Attorney General, and William N. Dunseath, Chief Deputy Attorney
General, both of Carson City, for Respondent Nevada Fish and Game Commission.
A. D. Jensen, District Attorney, of Reno, for Respondent Washoe County Game Board.
1. Trespass.
If Fish and Game Act had authorized hunters to hunt upon privately owned lands without permission of
owners it would have violated state and federal constitutions; but such Act did not, either expressly or by
necessary implication, authorize a trespass of any nature upon privately owned lands. NRS 501.010 et
seq.; Const. art. I, sec. 1; U.S.C.A.Const. Amend. 14.
2. Constitutional Law; Game.
Patent difference between rural area outside city limits of Reno and area within limits of city justified
classification opening rural area to hunting but closing area within limits of city. NRS 207.200.
3. Constitutional Law.
Decision between desires and needs of opposing groups consisting of hunters on one hand and those
wanting area closed to hunting on the other, required a legislative and not a judicial determination; but
while courts could not supply remedy for property owners whose rights had been disregarded by hunters,
they were not required to remain silent in face of such injustice and thus appear tacitly to approve the
situation. NRS 501.345, 503.240, 503.250.
4. Evidence.
It is common knowledge that violations of game laws are vigorously prosecuted.
OPINION
This appeal challenges the constitutionality of the Fish and Game Act (NRS 501.010 et
seq.). Margaret Flick and some 40 other plaintiffs sought an injunction restraining the Nevada
Fish and Game Commission from opening to hunting a rural area outside the city limits of
Reno within the southwest portion of the area known as the Truckee Meadows. In the general
area upland game hunting is engaged in. The appeal is from a denial of the injunction sought.
[Headnote 1]
Appellants assert that the act authorizes and sanctions an interference with and is a
deprivation of the private ownership of property, that it authorizes hunters (under orders of
the state board of fish and game commissioners opening sundry areas including privately
owned, occupied and improved lands to hunting) to occupy and hunt upon such lands without
the permission of the owners. Did the statute so provide, we should not hesitate to strike
down the offending provisions as violative of section 1, art. I of the state constitution and the
fourteenth amendment of the federal constitution. But nowhere in the act can be found any
provision that expressly or by necessary implication authorizes a trespass of any nature upon
the lands or possessions of appellants.
In brief the statute declares that wild game in the state not domesticated and in its natural
habitat is part of the natural resources belonging to the people, that it is subject to the state's
control including the fixing of open and closed seasons and the necessity for obtaining
licenses. These are powers long recognized throughout the nation. The act creates a board of
commissioners for the administration of its provisions, and such board, acting under authority
of the act (NRS 501.345), designated as open to hunting the rural area above-mentioned and
including the lands and improvements of the appellants. These lands vary in size from 1-acre
tracts to ranches of from 100 to 200 acres. At the same time the board closed to hunting
other rural areas likewise containing privately owned lands.
board closed to hunting other rural areas likewise containing privately owned lands. County
boards may close areas within their respective counties. NRS 501.345. The administrators of
the statute are expert and experienced in matters concerning wildlife and the record is devoid
of anything showing that their actions or orders were arbitrary or capricious. See Nev. Tax
Com. v. Hicks, 73 Nev. 115, 310 P.2d 852.
As to the insistence of appellants that the act, at least impliedly, authorizes hunting upon
their lands without their consent we need only refer to NRS 503.240 making it unlawful to
hunt on any enclosed private property where signs are displayed forbidding the same,
declaring a violation to be a misdemeanor and providing penalties; and to NRS 503.250
declaring it unlawful to hunt upon occupied, cultivated and fenced property of another and
likewise declaring a violation to be a misdemeanor and fixing penalties. These are sections of
the fish and game law. Under the crimes and punishments act any willful entry upon another's
land after a warning not to trespass is declared to be a misdemeanor, and the posting of no
trespass signs in the manner provided is deemed to have given sufficient warning against
trespass. NRS 207.200. Thus exclusive right to the possession of his land and complete
control thereof to the exclusion of any right of another to enter upon it for hunting is vested in
each of the appellants. Hamilton v. Williams, 145 Fla. 697, 200 So. 80.
[Headnote 2]
Appellants further contend that as they are in a closely occupied rural or suburban area it is
discriminating to open their area to hunting while closing the area within the limits of the city
of Reno. It needs no discussion, however, to justify the conclusion that the patent difference
between the two areas justifies such classification. Barker v. State Fish Commission, 88
Wash. 73, 152 P. 537, and cases therein cited.
The order and judgment of the district court refusing to enjoin the administrators of the
state fish and game law from opening the area in question to hunting must be affirmed.
[Headnote 3]
Though such affirmance disposes of the issues presented by this appeal, the record of the
trial impels further comment. It is clear from that record that these appellants are exposed to
an outrageous situation for which a remedy must be found. While the courts cannot supply
that remedy they need not remain silent in the face of injustice and thus appear tacitly to
approve the situation.
It appears that despite repeated, posted, published and personal warnings that no hunting
was permitted on lands of appellants, hunters in absolute, arrogant and contemptuous
disregard of the rights of the owners invaded their premises and recklessly discharged their
shotguns at game virtually at their doorsteps.
One of the appellants, owner of a purebred Jersey dairy farm of 130 acres, testified to the
killing by hunters of two purebred Jersey cows, of hunters shooting toward her house, of
killing a pheasant on her lawn. * * * The cars were lined up on either side of Holcomb Lane,
and for some reason or other the cars on this side of the road shot across the road to the other
side, and vice versa, so that you felt like a dispatch rider; the bullets would be going like this
all across the road. They seemed to lose all sense of anything but the pheasant. Nothing else
seems to occur to them in the way of human beings or animals. I have also stood in my front
courtyard and had bullets go by me. This is about four yards from my front door.
Another of the appellants testified that as his daughter came out of the kitchen door, she
heard a shot and birdshot dropped all around her. On another occasion two young men were
hunting in the field containing cattle. When their attention was called to the fact that the land
was posted, they were offended that they should be questioned and invited the witness to put
them off. On another occasion a painter working on one of his cottages was forced to quit
work by reason of shot falling close to him. The hunter shot a pheasant in his field. Birds
were dropped on his land on other occasions.
Another witness testified to hunters shooting so close that one could hear the shot hitting
the roof and the windows, and that most of the hunters shot from the road, although
some of them went through the fields.
that one could hear the shot hitting the roof and the windows, and that most of the hunters
shot from the road, although some of them went through the fields. Another witness testified
to having a stable window shot out, and that children and horses were endangered. The
witness's two children, aged, respectively, 13 and 9, were riding horseback in a lane where the
shooting took place. Another witness testified that, when he was cleaning out his spring, two
hunters, seeing something moving in the willows and brush, took a pot shot at ittoward
him. On one occasion shot rattled off the roof of a shed in which he was working. On another
occasion three kids about 16, 17 years old, along in there, ran around the house in full
pursuit of a little family of quail. They were within ten feet of the house at the time, just
blazing away at these quail. He said that all of his neighbors had similar experiences.
Another witness testified to having horses on the property, a dog and children, and that a
hunter shot 10 or 12 times right by one of her houses. Another witness testified to hunters
being in his driveway many times, jeopardizing the safety of his home and family. Another
testified to shooting 40 feet from his neighbor's house, and that he and his wife, his cattle,
horses and dogs were in jeopardy. It was stated that two persons were actually struck by
pellets. All this occurred on posted property.
We have deliberately refrained from referring to these hunters as sportsmen. Wild-game
hunting in America has become big business. Skill in hunting, marksmanship, training of
dogs, the enjoyment of outdoor life, healthful exercise, good sport, the exercise of the traits of
good sportsmanship, to say nothing of the preservation and scientific conservation of wildlife,
all are things commanding a high degree of respectful consideration. When attempted to be
exercised by people who respect neither gun, game, dog nor the rights of others, we deal with
malefactors who should be treated as such. Someone should take away their guns. If this duty
devolves upon citizens who merely want to enjoy their own property, it is not a healthy
situation.
The problem appears to be two-fold: both legislative and administrative.
There are two other groups of property owners in the area thus opened to hunting, both of
which groups want the area to remain open. One group (some 45 of them signed letters to this
effect) want the right to hunt on their own property and to invite their friends in to hunt.
Another group would have hunting permitted so that the game, mainly the pheasants, may be
prevented from destroying their grain crops. It is said that these two groups outnumber the
appellants who want the area closed to hunting.
Respondents did not see fit to refute any of the testimony referred to but restricted their
defense to a showing (1) that other homeowners in the area desired to keep it open to hunting
and (2) that the state game commissioners, the county game board and the county
commissioners had held open meetings in the matter, and that their orders were not arbitrary.
For the purposes of this opinion, therefore, the testimony adduced by appellants may be
accepted as true.
A decision between the desires and needs of these opposing groups requires a legislative
and not a judicial determination. Judgment of the county commissioners in this sphere is not
reviewable by the courts.
[Headnote 4]
Abuse of the hunting privilege and disregard of trespassing laws pose administrative
problems of licensing and law enforcement. It is common knowledge that violations of the
game laws (a shot after sunset, an unpunched deer tag, use of a shotgun capable of holding
more than three shells, as well as the more flagrant violations) are vigorously prosecuted.
This is as it should be. But preoccupation with this area of social offense, or even with the
area of game conservation, is no justification for disregard of the fact that appropriate
licensing procedures and strict law enforcement have become necessary for the protection of
the public.
The excellent and faithful work of the administrative officers and personnel of the fish and
game commissioners is well known to the citizens of the state, who are cognizant of the vast
store of knowledge of wildlife possessed, and the high degree of skill exercised by them in
the protection, propagation and preservation of game.
are cognizant of the vast store of knowledge of wildlife possessed, and the high degree of
skill exercised by them in the protection, propagation and preservation of game. This must
include, of course, the proper harvesting of game crops and the balancing of flocks and herds
with available feed, forage and cover, and the research and field investigations involved.
There should be noted also the constant admonitions of the game commission against hunting
on private property without the consent of the owner. It is generally recognized too that our
wildlife, thus preserved, is one of our great resources, affording recreation and the exercise of
hunting and outdoor skills to a large proportion of our citizens, as well as attracting thousands
of visitors annually. All this but emphasizes the necessity for protection against such
depredations as have been suffered by these appellants.
With sympathetic appreciation of the nature of appellants' problem, we must refer them for
remedy to the appropriate legislative and administrative authorities, or to the appropriate
organs of public inquiry.
Affirmed.
____________
75 Nev. 107, 107 (1959) Hartstone v. Hartstone
IRENE M. HARTSTONE, Appellant, v.
GEORGE D. HARTSTONE, Respondent.
No. 4181
February 17, 1959 335 P.2d 431
Appeal from judgment of the Second Judicial District Court, Washoe County, Department
No. 1.
Respondent's motion to dismiss appeal. Appellant's motion for extension of time to file
record.
Divorce action. The trial court entered a judgment unsatisfactory to wife and she appealed.
The husband docketed the appeal in order to interpose his motion to dismiss, and wife filed
opposition to the motion, together with a countermotion for an extension of time within
which to file the record on appeal.
dismiss, and wife filed opposition to the motion, together with a countermotion for an
extension of time within which to file the record on appeal. The Supreme Court held that
where appellant's motion to extend her time was made almost nine months after filing of her
appeal, and almost six months after expiration of any jurisdiction in the trial court to extend
her time, and no specific oral stipulation was made between counsel for the parties for an
extension of time, and transcript, under such circumstances showing of wife would be
deemed insufficient to constitute excusable neglect, and her motion for extension of time to
file the record would be denied and respondent's motion to dismiss the appeal would be
granted.
Appellant's motion denied. Appeal dismissed.
R. K. Wittenberg, of Reno, for Appellant.
Adams, Reed & Bowen and John P. Thatcher, all of Reno, for Respondent.
Appeal and Error.
Where appellant's motion to extend her time was made almost nine months after filing of her appeal, and
almost six months after expiration of any jurisdiction in the trial court to extend her time, and no specific
oral stipulation was made between counsel for the parties for an extension of time, under such
circumstances showing of appellant would be deemed insufficient to constitute excusable neglect, and her
motion for extension of time to file the record would be denied and respondent's motion to dismiss the
appeal would be granted.
OPINION
Per Curiam:
Respondent docketed the above appeal in order to interpose his motion to dismiss. Rule
75(j) NRCP. Appellant has filed her opposition to the motion, together with her
countermotion for an extension of time within which to file the record on appeal. From the
affidavits of both parties we compile the following chronology of events: April 1S, 195S,
decree of divorce entered in favor of respondent.
April 18, 1958, decree of divorce entered in favor of respondent.
May 19, 1958, notice of appeal filed.
June 28, 1958, last day under Rule 73(g) to docket the appeal and file the record on appeal
in this court.
June 28, 1958, last day under Rule 73(g) on which the district court might have extended
the time for filing the record and docketing the appeal.
August 18, 1958, last day under Rule 73(g) to which the district court could in any event
have extended time for such docketing and filing.
January 28, 1959, respondent's motion to dismiss filed.
February 11, 1959, appellant's motion to extend time for filing record on appeal filed.
It will thus be seen that appellant's motion to extend her time is made nine months less
eight days after the filing of her appeal, six months less eight days after the expiration of any
jurisdiction in the trial court to extend her time, and some six and one-half months after the
district court under rule 73(g) could have granted any extension.
It appears that shortly after the filing of the notice of appeal, counsel for respondent
informally agreed that respondent would pay the cost of the reporter's transcript and the
preparation of the record on appeal; that appellant's counsel ordered the transcript, which was
completed on July 22, 1958, at a charge of $243. The affidavit of appellant's counsel states
that he then discovered that a restraining order signed by the court September 20, 1957, had
never been filed, and that counsel for respondent advised that they would check on this defect
of the record, whereupon appellant took no further immediate step with relation to the
matter. The affidavit of respondent's counsel states that he forthwith filed the restraining
order as of the date on which it was made. (No intimation is given the court as to the nature of
the restraining order or its significance in connection with the appeal.) Counsel for appellant
admits that no specific oral stipulation was made for an extension of time but that such
was implied by the fact that all counsel knew that it would take longer than the minimum
period for the record to be prepared, particularly in light of the admitted defect of the
record."
than the minimum period for the record to be prepared, particularly in light of the admitted
defect of the record.
The affidavit of respondent's attorney is to the effect that respondent has been and is now
willing to pay for the cost of the transcript, but that neither he nor respondent has ever been
billed for same or requested to pay it and did not know that it had been ordered or secured
until respondent filed his motion to dismiss, although the transcript had been delivered to
appellant's counsel on July 22, 1958; and that the record on appeal has not yet been prepared.
He adds that there never was an oral stipulation for an extension of time either specific or
implied; that on August 8, 1958, he telephoned appellant's attorney advising him that he was
in default; that counsel for appellant advised that he would call him back, but never further
communicated with him until respondent filed his motion to dismiss on January 28, 1959.
Under the foregoing circumstances it would appear that the showing of appellant is
insufficient to constitute excusable neglect, that appellant's motion for an extension of time to
file the record should be denied and that respondent's motion to dismiss the appeal should be
granted. Dreyer v. Dreyer, 74 Nev. 167, 325 P.2d 705.
Appeal dismissed.
____________
75 Nev. 111, 111 (1959) In Re Nubar Wright
In the Matter of the Application of NUBAR WRIGHT for Reinstatement to Membership in
the State Bar of Nevada.
No. 3695
February 23, 1959 335 P.2d 609
Application by disbarred attorney for reinstatement to the bar. The Supreme Court,
Merrill, C. J., held that evidence established that character defects which brought about
disbarment had been cured.
Reinstatement ordered.
(Rehearing granted May 6, 1959.)
George Rudiak, of Las Vegas, for Petitioner.
A. R. Schindler, of Reno, Secretary of State Bar of Nevada, for State Bar of Nevada.
Determination of whether character defects which have brought about disbarment of an attorney have
been cured depends upon particular facts and upon whether essential subjective factors can be said to have
been satisfactorily established.
Lack of respect for the courts, for the office of attorney and for established canons of professional ethics
disqualifies one from serving as an officer of the courts.
In proceeding on petition for reinstatement to the bar, evidence established that character defects which
brought about disbarment had been cured.
OPINION
Nubar Wright, disbarred by order of this court on October 17, 1952, seeks reinstatement to
the bar. The conduct for which he was disbarred is fully related in our opinion upon
disbarment, In Re Wright, 69 Nev. 259, 248 P.2d 1080.
The petition was referred by us to the Board of Governors of the State Bar of Nevada. The
Board, following hearing upon the petition, concluded that the evidence and testimony of
the petitioner were not sufficient to warrant a recommendation of reinstatement.
hearing upon the petition, concluded that the evidence and testimony of the petitioner were
not sufficient to warrant a recommendation of reinstatement. It recommended that the petition
be denied.
In support of the petition are letters of recommendation from members of the bar of this
state. Included are letters from several of the leaders of the bar of Las Vegas, where petitioner
last practiced. Also included are letters written by lawyers and laymen who have known and
observed petitioner during his period of disbarment. On hearing before the Board of
Governors petitioner made a full statement in support of his petition and submitted to close
questioning by members of the board. A transcript of this hearing is before us. Since
disbarment petitioner has led a quiet, honest and respectable life.
[Headnote 1]
Our problem upon this petition is to determine to the best of our judgment whether, under
all of the circumstances, it may now fairly be said that the character defects which brought
about disbarment have been cured. Upon such a question the decision in each case must
depend upon the particular facts and upon whether the essential subjective factors can be said
to have been satisfactorily established. In Re Snodgrass, 166 Okla. 156, 26 P.2d 756. We
have accordingly given close study to the record upon this petition and, in the light of what
that record discloses, have reexamined the original record on disbarment.
[Headnote 2]
From our study it now appears likely that the conduct for which petitioner was disbarred
resulted not from inherent dishonesty but from a lack of respect for the courts, for the office
of attorney, and for the established canons of professional ethics.
Such an attitude, demonstrated as flagrantly as was the case here, is not to be tolerated in
our profession and unquestionably disqualifies one from serving as an officer of the courts.
It appears to us, however, that time and conscientious reflection have now brought
respect and understanding to this petitioner.
reflection have now brought respect and understanding to this petitioner. The wrongfulness of
his conduct and the justice of his disbarment are now acknowledged by him, apparently with
no trace of bitterness. Sincere repentance for that conduct is apparent, as well as an honest
determination never again to degrade himself or his profession by his conduct. There is no
question but that his disbarment has been most keenly felt.
[Headnote 3]
Such being our view of the facts we conclude that through understanding, attitude, and
expiation this petitioner has met the burden which his petition has placed upon him with
respect to character and rehabilitation. Kepler v. State Bar of California, 216 Cal. 52, 13 P.2d
509; in Re Mash, 39 Cal.App. 548, 179 P. 897. Further, we conclude that the period of time
elapsed since disbarment (over six years) is sufficient to constitute atonement for the
particular acts of misconduct which are involved in this case.
It Is Ordered that petitioner be reinstated as a member of the State Bar of Nevada.
Badt and McNamee, JJ., concur.
____________
No. 3695
June 16, 1959 340 P.2d 1007
On rehearing: Decision of reinstatement affirmed.
George Rudiak, of Las Vegas, for petitioner.
A. R. Schindler, Edwin C. Mulcahy, John C. Bartlett and Douglas A. Busey, all of Reno,
for State Bar of Nevada.
If limitations and conditions should, in the public interest, be imposed upon a disbarred
attorney's right to reinstatement, they should be fixed by rule and not by decision in
disregard of existing rules.
In proceeding on petition for reinstatement to the bar, evidence as to extent of
applicant's rehabilitation was sufficient to warrant reinstatement.
OPINION
On Rehearing
Per Curiam:
The State Bar of Nevada has petitioned for rehearing upon our decision that Nubar Wright
be reinstated to membership. [75 Nev. 111, 335 P.2d 609.]
[Headnote 1]
In several respects the petition suggests that limitations and conditions should, in the
public interest, be imposed upon a disbarred attorney's right to reinstatement. There may well
be merit in such suggestions. If so, they should be fixed by rule and not by decision in
disregard of existing rules. Accordingly, rehearing was denied upon all such grounds.
Upon one ground only was rehearing granted. Our decision of reinstatement was contrary
to recommendations of the Board of Governors made after a full hearing. The petition for
rehearing asserted that the decision of the Board of Governors was based in part upon the
attitude of the applicant as a witness and upon his demeanor in answering questions and that
this court in reaching its judgment as to character rehabilitation had not had the opportunity
of confrontation of the applicant.
We regarded this proposition as having obvious merit. Accordingly, in granting rehearing,
we directed that Nubar Wright should personally state his case for reinstatement to this court
and submit to questioning by a representative of the State Bar and by members of this court.
[Headnote 2]
Such rehearing has now been had and this court has had the opportunity to observe the
demeanor of the applicant and to judge by such observation the sincerity and good faith of his
present application and of the extent of his rehabilitation.
After such observation of the applicant and consideration of his attitude, our decision of
reinstatement is affirmed.
____________
75 Nev. 115, 115 (1959) O'Bannon v. Gross
MAURICE DAVID O'BANNON Also Known as David O'Bannon, Appellant, v. EVELYN
GROSS, Respondent.
No. 4113
February 25, 1959 335 P.2d 608
Department No. 2.
Action to recover sale price of automobile. The trial court entered judgment for plaintiff
and defendant appealed. The supreme court held that where the sale of the automobile was
fully completed, the statute of frauds was inapplicable.
Affirmed.
Bonner & Rittenhouse, of Las Vegas, for Appellant.
Cornwall & Sullivan, of Las Vegas, for Respondent.
1. Sales.
In action to recover sale price of automobile sold to defendant who asserted that seller had
misrepresented that automobile was new and in good mechanical condition and that such automobile sold
on the west coast market for a certain sum, where trial court, sitting without jury, determined that sale had
been completed without warranty or representations and record provided ample support for such
determination, newspaper advertisement and testimony relating to usual price of automobile and letter from
buyer to seller rescinding sale were immaterial and refusal to admit such matters in evidence was not error.
Where sale of automobile was fully completed, the statute of frauds was inapplicable. NRS 96.130.
OPINION
Per Curiam:
This is an action to recover the sum of $1,500, being the sale price of an Isetta automobile.
From judgment for the plaintiff the defendant has taken this appeal.
On July 4, 1957, one Kadera, respondent's assignor, who was in California at the time,
received a phone call from appellant who inquired of Kadera how much he would take for a
certain Isetta automobile.
would take for a certain Isetta automobile. Kadera replied that he had approximately $1,427
invested in the car but would bring it to Las Vegas and sell it to appellant for $1,500 cash.
The legal title to the car at the time was in a California bank, Kadera being still in the process
of buying the same from his original vendor on conditional sales contract.
Thereafter and on the same day Kadera drove the car to Las Vegas, contacted appellant,
and after appellant or someone at his direction had taken a ride in the car appellant accepted
delivery of the car and gave Kadera his bank draft for $1,500, saying at the time that it was
the same as cash. At the same time Kadera delivered the car keys and his copy of the sales
contract between Kadera and Kadera's original vendor, which contract showed on its face that
Kadera was buying the car from said original vendor for the sum of $1,439.36. When the
draft was presented for payment at the Las Vegas bank, having been sent there for collection
by the California bank along with the title slip to the car, the Las Vegas bank dishonored the
draft upon directions from the appellant.
As a defense to the action below, appellant asserted that Kadera had represented that the
car was new and in good mechanical condition when, in fact, this was not so; that he further
had represented that the car sold on the west coast for approximately $1,500 when, in fact,
this was not so.
[Headnote 1]
These assertions were denied by testimony of Kadera who stated that the transaction was a
cash sale and was not accompanied by any warranty or representation.
It is clear that upon these issues the trial court, sitting without jury, chose to believe
Kadera. The record provides ample support for such determination.
Such being the case, the first three assignments of error are without merit. These
assignments cover the refusal of the court to admit in evidence a newspaper advertisement
and testimony relating to the usual price of the automobile, and to admit in evidence a letter
from the appellant to the vendor rescinding the sale. Since the court had determined that the
sale had been completed without warranties or representations, these matters were
wholly immaterial.
court had determined that the sale had been completed without warranties or representations,
these matters were wholly immaterial.
[Headnote 2]
Appellant's final assignment of error is that the contract for sale was in violation of the
statute of frauds, NRS 96.130. In this case, since the sale was fully completed, the statute
clearly does not apply.
Affirmed.
____________
75 Nev. 117, 117 (1959) Heward v. Western Pac. R.R. Co.
E. S. HEWARD, Appellant, v. WESTERN PACIFIC
RAILROAD CO., Respondent.
No. 4109
February 25, 1959 335 P.2d 610
Appeal from judgment of Second Judicial District Court, Washoe County; Honorable John
F. Sexton, Presiding Judge, Department No. 3.
Action by lessee against lessor for alleged wrongful cancellation of lease by lessor, which
originally leased premises on a month-to-month basis and later sent a letter to lessee stating
that as long as lessee's operations were conducted safely and within terms of lease, lessor
would let him stay there until such time as lessor needed the property for a higher use. From
adverse judgment of the trial court the lessee appealed. The Supreme Court, Badt, J., held that
the letter did not constitute an extension of the lease and was immaterial and properly
excluded.
Affirmed.
(Petition for rehearing denied March 30, 1959.)
Ralph M. Tucker, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey & Thompson, of Reno, for Respondent.
Landlord and Tenant.
In action by lessee against lessor for alleged wrongful cancellation of a lease by lessor, which originally
leased premises on a month-to-month basis and later sent a letter to lessee stating that as long as lessee's
operations were conducted safely and within terms of lease lessor would let him stay there until such time
as lessor needed property for a higher use, letter did not constitute an extension of lease and was immaterial
and properly excluded.
OPINION
Heward sued the Western Pacific for damages allegedly caused by the defendant's
wrongful cancellation of a lease and lease extension from the Western Pacific to Heward.
Judgment was entered for the defendant upon a directed verdict. In his appeal from such
judgment, Heward assigns as error the trial court's rejection of a letter offered by him as
constituting an extension of a subsisting lease. The ruling was, in our opinion, correct, as
appears from the following circumstances.
On July 1, 1947, the railroad company entered into a lease with Heward for portions of
three lots in Reno abutting on a line ten feet from what was known as the S. P.-W. P.
interchange track. The term was one month from the first day of July 1947, and provided
that a holding over should be deemed a tenancy from month to month only. It fixed a rental of
$20 per month, payable monthly in advance.
This lease being in evidence, plaintiff offered a letter purporting to be written by an agent
of the Western Pacific dated November 2, 1951, which, after calling attention to some
difficulties theretofore had with the lessee, contained this language: As long as you conduct
your operations safely and within the terms of the lease we will let you stay there until such
time as we need it for some higher use. In view of the many complaints we have had,
however, we are going to insist that you post a bond guaranteeing the observance of the terms
and conditions of the lease. We will have a bond prepared within a short time which you
should have executed by one of the bond companies at Reno and return to us promptly.
bond prepared within a short time which you should have executed by one of the bond
companies at Reno and return to us promptly. In the meantime we will accept your rent for
the month of November [1951].
Heward remained in possession, paying the monthly rent. On January 7, 1953, the railroad
company served on Heward notice of termination of tenancy and notice to quit, effective
at the expiration of the month of your monthly tenancy of said premises commencing on the
first day of January 1953. Heward left the premises early in February 1953. He had not paid
the January 1953 or February 1953 rent. He commenced the present action March 5, 1956.
When the letter of November 2, 1951, was offered in evidence to prove the extension of the
lease, objection was made on the ground of lack of proper foundation and upon the ground
that it was incompetent, irrelevant and immaterial. It was clearly immaterial as proof of
extension of the lease of July 1, 1947. That lease created at the most a tenancy from month to
month. Roberts v. District Court, 43 Nev. 332, 185 P. 1067; Proskey v. Colonial Hotel Co.,
36 Nev. 76, 133 P. 390. No attack is made by appellant on the sufficiency or legality of the
notice to quit.
The letter of November 2, 1951, was not, as we have noted, an extension of the lease of
July 1, 1947. Even accepting appellant's contention that it extended the lease until such time
as we need it for some higher use, the record shows that the premises had been used by
Heward for storage of scrap metal and that the railroad company felt that there was a demand
for lots for construction of warehouses and they wanted the lots cleared so that they would be
available for such use. This was apparently considered by the railroad company to be a
higher use. As the legal effect of the letter was not to create an extension of the lease, it was
immaterial.
Appellant's further offers of evidence were likewise rejected by the district court on the
ground that they were not material since Heward had not established that he was a lessee of
the premises. Such rulings are likewise assigned as error, but it is apparent that any such
further evidence was immaterial upon the plaintiff's failure to prove his basic contention
that he was a lessee under a lease and lease extension that precluded a termination of
the tenancy.
such further evidence was immaterial upon the plaintiff's failure to prove his basic contention
that he was a lessee under a lease and lease extension that precluded a termination of the
tenancy.
Appellant further assigns as error the court's denial of his motion for an order requiring the
railroad company to produce its office copy of the letter of November 2, 1951. This was
based upon the contention that it contained sundry original notations indicating that copies
had been sent to sundry persons who might be shown to be officers of the defendant
corporation, and that the continued silence of such officers amounted to a ratification of the
letter. While this might have some bearing on the competency of the letter as evidence, it
could not affect its lack of materiality.
Merrill, C. J., and McNamee J., concur.
____________
75 Nev. 120, 120 (1959) Bromberg v. Anthis
IRVING R. BROMBERG, Doing Business as MIDWAY MOTORS, Appellant, v. NORMA
THOMPSON ANTHIS, Doing Business as ANTHIS RECOVERY BUREAU, Respondent.
No. 4093
February 27, 1959 335 P.2d 777
Appeal from judgment of Eighth Judicial District Court, Clark County; Honorable Peter
Breen, Presiding Judge, Department No. 1.
Action by contracting vendor of automobile, under title retaining contract, to recover from
purchaser from contracting vendee for conversion of automobile. The trial court rendered
judgment for plaintiff, and defendant appealed. The Supreme Court, Badt, J., held that action
was not barred either by suit against contracting vendee for balance of purchase price or by
default judgment entered therein.
Affirmed.
Calvin C. Magleby, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
Election of Remedies; Judgment.
Action by contracting vendor of automobile, under title-retaining contract, to recover from purchaser
from contracting vendee for conversion of automobile, was not barred either by suit against contracting
vendee for balance of purchase price or by default judgment entered therein. NRCP 13(g).
OPINION
This appeal, as presented by the briefs, involves the question whether a contracting vendor
of an automobile, under a title retaining contract, who has sought and obtained a judgment
against his contracting vendee for the balance of the purchase price, is barred thereby from
seeking a judgment for conversion of the automobile against a purchaser from the contracting
vendee. The question presented then is one of election of remedies or, perhaps more
accurately stated, of an election to pursue one of two assertedly inconsistent substantial rights.
The original contract of sale, dated April 17, 1953, was from Connell Motor Company to
one Taylor, reserving title until payment in full. On February 1, 1957, Taylor sold to
Bromberg, representing that there was an unpaid balance on the car of $312, whereas the
actual unpaid balance was $623.20. Connell Motor Company assigned to respondent Anthis
its contract of sale, including all its right, title, and interest in the automobile and all moneys
it might be entitled to recover for the conversion thereof.
On May 16, 1957, Anthis commenced this action, joining as defendants both Taylor and
Bromberg, suing Taylor for the balance of the purchase price, with a second cause of action
against appellant for the conversion. Taylor defaulted and a default judgment was entered
against him for $632.10, plus costs, collection costs, and attorney fees. Some three months
later, on October 21, 1957, the second cause of action, namely, the one against Bromberg
for conversion came on for trial, and judgment was entered in favor of Anthis and against
Bromberg for $603.10 {certain sums having been recovered from Taylor under the default
judgment against him), together with attorney fees and costs.1
October 21, 1957, the second cause of action, namely, the one against Bromberg for
conversion came on for trial, and judgment was entered in favor of Anthis and against
Bromberg for $603.10 (certain sums having been recovered from Taylor under the default
judgment against him), together with attorney fees and costs.
1

The two inconsistent rights as asserted by appellant would appear to be (1) the assertion of
the complete sale to the vendee and the vesting of title in the vendee through seeking and
obtaining a judgment against the vendee for the balance of the purchase price; and (2) the
assertion of the continued subsistence of the terms of the contract, the retention of title in the
contracting vendor and the conversion of the automobile by the contracting vendee's vendee
in violation of the contracting vendor's ownership and his repossessory rights under his
contract.
In contending that the conversion action against Bromberg was barred by the suit and
judgment against Taylor for the balance of the purchase price, appellant relies upon the
principle that a party having his choice of two remedies, the exercise of one of which is
inconsistent with the exercise of the second, by taking action on one remedy thereby makes
an irrevocable election and is barred from asserting the second. For the establishment of this
rule appellant relies upon Smith v. Miller, 5 Cal.App.2d 564, 43 P.2d 347; Holt Mfg. Co. v.
Ewing, 109 Cal. 353, 42 P. 435; Park & Lacy Co. v. White River Lumber Co., 101 Cal. 37,
35 P. 442; Elsom v. Moore, 11 Cal.App. 377, 105 P. 271; Birkel Co. v. Nast, 20 Cal.App.
651, 129 P. 945; Martin Music Co. v. Robb, 115 Cal.App. 414, 1 P.2d 1000; and other cases
to similar effect.
____________________

1
Bromberg alleged in his answer that Connell advised him that $312 was the balance due on the Taylor sales
contract. The court found against this contention. Bromberg testified that Taylor had told him that such was the
balance. Taylor testified that he told Bromberg that $625 was the balance due. If there was an issue between
Bromberg and Taylor, if Bromberg, confronted with a judgment against him for $625, felt that he in turn was
entitled to judgment against Taylor for $313, he had every opportunity to plead it. NRCP, Rule 13(g).
What we consider the better view in cases of this nature, under contracts such as the one
here involved, is exemplified in the opinion of Mr. Justice Cardozo, speaking for the New
York Court of Appeals as follows:
The question depends for its answer upon the law of election of remedies. Where two
inconsistent remedies, proceeding upon irreconcilable claims of right, are open to a suitor, the
choice of one bars the other. But, to have that effect, the remedies must be inconsistent. We
find no inconsistency here. The contract says that title is to remain unchanged till the price is
paid in cash. The vendor had the right to receive the price, and brought an action to get it. The
judgment preserves the obligation of the vendee's promise to make payment, but puts it in
another form. There is no inconsistency between an attempt to get the money and a
reservation of title if the attempt is not successful. In asserting title the vendor does not treat
the contract as void in its inception. (Citing cases) The contract is treated as subsisting, and
enforced according to its terms. Ratchford v. Cayuga County Cold Storage & Warehouse
Co., 217 N.Y. 565, 112 N.E. 447, 448, L.R.A. 1916E, 615. The Supreme Court of Utah
quotes the foregoing and expounds it at greater length in Soter v. Snyder, 3 Utah 2d 28, 277
P.2d 966, q.v.
Such is the rule this court adopts with reference to a contract like the one here involved.
The action against Bromberg for the conversion of the car was not barred by the suit against
Taylor for the balance of the purchase price nor by the said judgment against Taylor.
____________
75 Nev. 124, 124 (1959) Schatz v. Devitte
SARAH SCHATZ, Appellant, v. PAUL
DEVITTE, Respondent.
No. 4110
March 2, 1959 335 P.2d 783
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Libel action. From adverse judgment of the trial court the defendant appealed. The
Supreme Court, Merrill, C. J., held that award of $10,000 for statements maliciously made
and slanderous per se was not excessive.
Affirmed.
Toy R. Gregory, of Las Vegas, for Respondent.
1. Judgment.
Where defendant's attorney was served with notice that defendant's deposition would be taken on October
29 and by stipulation time for taking deposition was changed to November 5 and then to November 14 and
on that date defendant did not appear and in response to telephone call defendant's attorney stated that
defendant would not appear and that her deposition could not be taken, and no explanation was offered
why defendant failed to appear, court was justified in concluding that failure to appear was willful and
court did not abuse its discretion in entering default against defendant. NRCP 37(d).
In action for libel, reviewing court could not determine whether there had been an improper award of
damages in contemplation of future loss when record contained no transcript of testimony.
3. Libel and Slander.
Award of $2,400 for mental suffering and $250 for humiliation for libel did not constitute duplication
when it was clear that court intended to allow a total of $2,650 for mental suffering including humiliation.
Award of $10,000 for statements maliciously made and slanderous per se was not excessive.
Reviewing court will not substitute its opinion as to damages for that of the court below.
Contention that trial court had erred in awarding special damages in libel action when such damages had
not been pleaded was not timely when defendant had been afforded two opportunities to establish basis for
appeal prior to filing of a reply brief setting forth such contention.
OPINION
This is an action for slander. The defendant has appealed from judgment in the sum of
$10,000 entered by the court below sitting without jury.
In her opening brief appellant made one assignment of error: that the court below had
acted in abuse of discretion in striking defendant's answer and entering default against her for
her failure to appear for the taking of her deposition.
Rule 37(d) NRCP provides, If a party * * * willfully fails to appear before the officer who
is to take his deposition, after being served with a proper notice * * * the court on motion and
notice may strike out all or any part of any pleading of that party * * * or enter a judgment by
default against that party.
Appellant contends that the record does not show that her failure to appear was willful
under the provisions of that rule.
[Headnote 1]
The record shows that on October 16, 1957 appellant's attorney was served with notice that
appellant's deposition would be taken on October 29, 1957. By stipulation the time for taking
the deposition was advanced to November 5, 1957 and subsequently to November 14, 1957.
On November 14, 1957 appellant did not appear at the stated time and place. A telephone call
was made to her attorney who advised that appellant would not appear and that her deposition
consequently could not be taken. On the same day respondent moved to strike appellant's
answer and to enter default in his favor under Rule 37{d).
under Rule 37(d). This was granted by the court on December 5, 1957.
At the hearing on the motion appellant's attorney appeared but offered no explanation why
appellant failed to appear for the taking of her deposition and, in fact, apparently concurred in
the action of the court.
Under these circumstances the trial court was entirely justified in concluding that
appellant's failure to appear was willful. Accordingly we find no abuse of discretion in the
entry of default.
[Headnote 2]
After the answering brief of respondent on the foregoing assignment of error had been
filed with this court, appellant filed a supplemental opening brief asserting error in another
respect. Respondent moved to strike this brief, which motion we denied.
In her supplemental opening brief appellant contended that the judgment awarded was
excessive. She asserts in this connection that the trial court awarded special damages with
respect to earnings on the basis of what respondent was likely to lose rather than on the basis
of what he had actually lost; that future damages were thus awarded without any showing that
they were certain to be incurred.
It would appear from the findings of the trial court that damages had been awarded in
contemplation of future loss. However, the record on appeal does not contain any transcript of
testimony and we have no way of knowing in what respect the evidence may support this
finding or fail to support it. Appellant, then, has wholly failed to provide this court with the
means for considering the merits of her contention. Corey v. Corey, 72 Nev. 29, 292 P.2d
1073.
[Headnote 3]
Also with respect to the award of damages appellant points out that the trial court had
allowed $2,400 for mental suffering and an additional $250 for humiliation. She contends
that this amounts to duplication since mental suffering should be construed to include
humiliation.
Whether this be so in this case would, of course, depend upon the sense in which the
words were used by the trial court. It is clear to us that for mental suffering including
humiliation the court intended to allow and did allow a total of $2,650. We find no merit in
this contention.
[Headnote 4]
Finally appellant contends that judgment in the sum of $10,000 is manifestly excessive in
view of the relationship of the parties. Appellant is the aunt of respondent's wife. She
contends that the alleged slander was, at most, part of a family spat.
[Headnote 5]
We need not go into the details of the slander. Suffice it to say that the trial court was
wholly warranted in considering the statements maliciously made and slanderous per se. We
do not regard the amount of the judgment as indicative of the fact that it was given under the
influence of passion or prejudice. We shall not, then, attempt to substitute our opinion as to
damages for that of the court below. Burch v. Southern Pacific Company, 32 Nev. 75, 104 P.
225.
[Headnote 6]
After the answering supplemental brief of respondent on the foregoing assignments of
error had been filed appellant filed a reply brief in which, for the first time, she contended that
the trial court had erred in awarding special damages when such had not been pleaded.
Appellant has already been afforded two opportunities to establish the basis for her appeal.
This, we feel, is ample. For this reason we shall disregard appellant's final contention as not
timely made.
Affirmed.
Badt, J. and Breen, D. J., concur.
(Note: McNamee, J., having disqualified himself, the Governor designated Honorable
Peter Breen, Judge of the Fifth Judicial District Court, to sit in his place and stead.)
____________
75 Nev. 128, 128 (1959) Lattin v. Gray
EUGENE LATTIN, OTTO A. OMMEN and HOWARD W. CASSITY, as Trustees for the
United Brotherhood of Carpenters and Joiners of America, Local Union 1780, Las Vegas,
Nevada, Appellants, v. FRANK F. GRAY and ELEANOR A. GRAY, Husband and Wife;
CHESTER C. COOPER and ESTHER M. COOPER, Husband and Wife; CHARLIE E.
STEEL and SALLY STEEL, Husband and Wife, Respondents
No. 4098
March 3, 1959 335 P.2d 778
Department No. 2.
Action for reformation of certain deeds. From judgment of the trial court the plaintiffs
appealed. The Supreme Court, Merrill, C. J., held, inter alia, that evidence established that
there was a mutual mistake in fixing the true point of beginning of land conveyed by deed
at a point in conflict with described dimensions of area conveyed to grantee, entitling grantor
to have deed reformed to the end that it should convey the parcel intended to be conveyed.
Reversed with instructions.
George Rudiak and Betty Aronow, of Las Vegas, for Appellants.
McNamee and McNamee and Franklin P. R. Rittenhouse, of Las Vegas, for Respondents
Gray and Cooper.
Hawkins and Cannon, of Las Vegas, for Respondents Steel.
1. Reformation of Instruments.
Contracts and deeds will be reformed in accordance with true intention of the parties thereto, when their
intention has been frustrated by mutual mistake.
In action for reformation of deed on ground of alleged mutual mistake of fact, testimony of grantee that
he thought he was buying property that was covered in deed and escrow was insufficient to establish that
grantee was not mistaken with respect to property description where deed itself showed
upon its face that parties were in error in that deed's description did not square with
the true facts as to dimensions.
75 Nev. 128, 129 (1959) Lattin v. Gray
with respect to property description where deed itself showed upon its face that parties were in error in that
deed's description did not square with the true facts as to dimensions.
In action to reform deed which showed upon its face that the description did not square with the true facts
as to dimensions, it was incumbent on grantee, without equivocation, to take one of two positions: that he
actually intended, regardless of deed's description, to get a parcel greater in depth than that which was
described; or that he intended to get all land between certain points, whatever the true description of such
parcel might be.
Evidence established that there was a mutual mistake in fixing the true point of beginning of land
conveyed by deed at a point in conflict with described dimensions of area conveyed to grantee, entitling
grantor to have deed reformed to the end that it should convey the parcel intended to be conveyed.
In determining right to reformation of deed on ground of mutual mistake of fact, as to grantee's
transferee, the question was not whether he actually intended and expected to purchase all of lot north of
true point of beginning, but question was whether he had knowledge of fact that in establishing that point
grantor and grantee had acted in mistake, or whether he had such knowledge as would have put reasonable
man upon inquiry as to existence of such mistake.
In determining right to reformation of deed because of mutual mistake in describing property which
grantee transferred, transferee who had actual knowledge that a mistake had been made had a duty of
ascertaining extent of the mistake of which he had actual knowledge.
Alleged facts that prior to closing of escrow purchaser had commenced construction of a motel and that
his grading for that purpose had extended up to building owned by vendor's grantor and that purchaser had
expressed to grantor intention to build to within 5 feet of such building, and that grantor had offered to buy
25 feet from purchaser, might show an intent on purchaser's part to take full advantage of his discovery of
mistake in description of property but did not serve to establish bona fides of his position so as to preclude
grantor from reforming deed, since efforts made by grantor to negotiate a settlement out of court could not
be held to affect grantor's position, and hence the purchaser acquired the property subject to grantor's
equity of reformation.
8. Vendor and Purchaser.
An unperformed obligation does not make an obligor a purchaser for value, but he must have actually
paid the purchase price for property conveyed before securing notice.
75 Nev. 128, 130 (1959) Lattin v. Gray
Under record, a purchaser's transferee of realty was put on notice prior to closing of his transaction of
mistake in description of property as contained in deed by grantor to the vendor and hence such transferee
could not claim status of bona fide purchaser for value so as to preclude grantor from reforming the deed.
Record established that in each transaction involved husband negotiated for both himself and his wife in
purchasing property and that actual agency existed so that notice to husband amounted to notice to wife, as
regards right to reform deeds on ground of mistake in description of property.
OPINION
This action is brought by appellants on behalf of the Las Vegas local of the United
Brotherhood of Carpenters and Joiners. They seek reformation of certain deeds. Basis for the
suit is an alleged mutual mistake of fact, due to which property conveyed by the union was
misdescribed.
Judgment below was for the defendants and the union has taken this appeal. It contends
that the evidence establishes its right to reformation beyond dispute in that (1) the property
which the union intended to convey was misdescribed through mutual mistake of seller and
buyer; (2) that those who subsequently succeeded to the property conveyed had knowledge of
the mistake and of the union's equity of reformation and, therefore, were not bona fide
purchasers.
The issues on this appeal relate to the sufficiency of the evidence to establish the union's
contention. Our function is, in substance, limited to an analysis of the facts.
In 1948 the union acquired a lot in Las Vegas extending between Fremont Street on the
north and Charleston Boulevard on the south. It was described, according to the official plat
filed of record, as having a depth of 290 feet on the east and 394.20 feet on the west.
In April 1951 the union completed a building on the south portion of the lot facing
Charleston Boulevard and set back 50 feet from the street.
75 Nev. 128, 131 (1959) Lattin v. Gray
south portion of the lot facing Charleston Boulevard and set back 50 feet from the street. The
building was 100 feet in depth. The lot had been filled and leveled to accommodate the
building to a distance of about 175 feet from Charleston Boulevard. Behind the building the
fill continued into the lot to a distance of approximately 25 feet. Beyond that point the
northern portion of the lot remained in its original unimproved state, with a slightly lower
elevation than that of the improved southern portion.
The union then decided to dispose of the unimproved northern portion of the lot fronting
on Fremont Street. On September 26, 1951 it entered into an oral agreement with respondent
Steel to sell this portion to him.
Several officers and members of the union participated in the discussions leading to the
agreement and testified to the substance of those discussions. From their testimony it appears
that the intent of the union as expressed to Steel was to convey to him the unimproved
portion of the lot north of the fill: an irregularly shaped parcel measuring 223.9 feet on
Fremont Street, with a depth of 244.2 feet on the west and 140 feet on the east. On the south
the parcel joined that retained by the union, 200 feet in width. The 140-foot east line was
paced off by the union officials. A sketch was drawn by a union representative to show the
dimensions of the parcel to be conveyed and was examined by Steel and approved.
Throughout, the intention of the union to retain for itself a 25-foot alleyway to the rear of its
building was made clear.
On October 16, 1951 an escrow was opened. The escrow instructions described the parcel
to be conveyed. The dimensions were in accordance with the agreement. On November 5,
1951 the escrow was closed and the deed to Steel was recorded. The parcel as described in
the deed contained the dimensions agreed upon.
The union, however, had erred in an important respect. Assuming the depth of its lot upon
the east to be 290 feet (in accordance with its deed and the recorded plat) and finding that the
depth of the parcel it wished to convey was, on the east, 140 feet, it concluded that the depth
of the parcel it wished to retain was 150 feet and that a parcel of that depth would
include a 25-foot alleyway to the rear of the building.
75 Nev. 128, 132 (1959) Lattin v. Gray
depth of the parcel it wished to retain was 150 feet and that a parcel of that depth would
include a 25-foot alleyway to the rear of the building. This error was reinforced by a second
error. It assumed that its building was set back 25 feet from Charleston Boulevard rather than
50 feet. Its calculations thus supported the 150-foot depth it assumed its retained parcel to
have: 25-foot set-back plus 100-foot building plus 25-foot alleyway.
The fact was that the deed to the union and the recorded plat were in error as to the true
depth of the lot. In fact it was 21.9 feet greater in depth. It was this 21.9 feet which the union
representatives, in pacing off the northern parcel, had noted as remaining between their
building and the parcel to be conveyed.
Based upon this error as to the facts, both escrow instructions and deed to Steel contained
a misdescription. In describing the property to be conveyed the true point of beginning was
fixed on the west boundary line 150 feet north of Charleston Boulevard. Thus the union
mistakenly eliminated the rear alleyway they had intended to retain and, by conveying all
property up to its building's real wall, foreclosed itself from use of the rear door and rear
sidewalk which its building provided.
[Headnote 1]
It is undisputed that our courts will reform contracts and deeds in accordance with the true
intention of the parties thereto, when their intention has been frustrated by a mistake. Ruhling
v. Hackett, 1 Nev. 360; Holman v. Vieira, 53 Nev. 337, 300 P. 946. The mistake in question,
however, must be mutual to the parties. Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248.
From the record a mistake of fact on the part of the union is unquestionably established.
Respondents contend, however, that the record does not establish that the mistake was shared
by Steel and thus was a mutual mistake. They contend that the record contains testimony
from which the court below could have found that Steel intended to obtain the full true depth
of the lot north of the true point of beginning.
The record compels us to reject this contention.
75 Nev. 128, 133 (1959) Lattin v. Gray
Steel did not deny the testimony of the union witnesses as to the oral agreement and the
discussions leading up to it. Steel simply stated, in effect, that he did not remember. In
support of their contention respondents point to the following portion of Steel's testimony:
Q. The only thing you know, you thought you were buying the property that was covered in
the deed and the escrow? A. That is right.
[Headnotes 2, 3]
This testimony is wholly insufficient to establish that Steel was not mistaken with respect
to the property description. The deed itself shows upon its face that the parties were in error
since the deed's description did not square with the true facts as to dimensions. Steel's
testimony thus serves to beg the essential question as to mistake. In the face of the error
incorporated into the deed it was incumbent upon Steel, without equivocation, to take one of
two positions: that he actually intended, regardless of the deed's description, to get a parcel
greater in depth by 21.9 feet than that which was described; or that he intended to get all land
from Fremont Street up to the rear wall of the union building, whatever the true description of
such parcel might be.
Steel certainly has not asserted that either was the case.
[Headnote 4]
We conclude that the record establishes without dispute that there was mutual mistake in
fixing the true point of beginning at a point in conflict with the described dimensions of the
area conveyed to Steel. As against Steel the union possessed an equitable right to have its
deed to Steel reformed to the end that it convey the parcel intended to be conveyed.
On January 14, 1952 Steel agreed to sell his parcel to respondent Gray. An escrow was
opened. The instructions contained the same description as that set forth in Steel's deed from
the union.
Gray proposed to build a motel on the property. He checked the dimensions on the
ground and suspected that there were discrepancies.
75 Nev. 128, 134 (1959) Lattin v. Gray
checked the dimensions on the ground and suspected that there were discrepancies. He
learned that a local surveyor had a plat of the property. He secured a copy and learned that the
lot, between Fremont Street and Charleston Boulevard, was actually 21.9 feet longer than was
shown on the earlier conveyances and the official plat filed of record. Notwithstanding this
knowledge on Gray's part, the deed from Steel to Gray, recorded in April 1952, contained the
same description as that from the union to Steel. At the time the escrow was closed he
pointed out to his realtor the fact that the deed was not giving him what he felt he should
have. He was told that the promised dimensions would put him in the building.
[Headnote 5]
As to Gray the question is not whether he actually intended and expected to purchase all of
the lot north of the true point of beginning. The question, rather, is whether he had
knowledge of the fact that in establishing that point the union and Steel had acted in mistake;
or whether he had such knowledge as would have put a reasonable man upon inquiry as to the
existence of such mistake. Lang Syne Gold Mining Co. v. Ross, 20 Nev. 127, 18 P. 358.
Upon his checking of the dimensions Gray became aware of two facts with reference to the
true point of beginning: that it was squarely against the rear wall of the union building; that
it did not square with the dimensions specified in the deed to Steel. Upon his securing the true
survey plat he became aware of an additional fact: that all parties concerned were in error as
to the true dimensions of the original lot running between Fremont Street and Charleston
Boulevard.
[Headnote 6]
Gray thus had actual knowledge that a mistake had been made. The parties to the
union-Steel deed either intended to refer to the full depth north of the described point of
beginning or to an area of the specified dimensions. They could not have meant both. Since
the described point of beginning would deprive the union of the full use of its building,
Gray's knowledge put him upon inquiry.
75 Nev. 128, 135 (1959) Lattin v. Gray
of the full use of its building, Gray's knowledge put him upon inquiry. He had the clear duty
of ascertaining the extent of the mistake of which he had actual knowledge. Lang Syne Gold
Mining Co. v. Ross, supra.
Respondents point to certain portions of the record as reinforcement of Gray's position. It
appears from Gray's testimony that prior to the closing of his escrow he had commenced the
construction of his motel and that his grading for that purpose had extended up to the union
building; that he had expressed to the union the intention to build to within five feet of the
building; that in the fall of 1952 he had discussed the 21.9-foot discrepancy with the union
and that the union had offered to buy 25 feet from him.
[Headnote 7]
These facts may show an intent on Gray's part to take full advantage of his discovery. They
do not, however, serve to establish the bona fides of his position. Efforts made by the union
to negotiate a settlement out of court cannot be held to affect its position in this suit. See: 20
Am.Jur., Evidence, sec. 565, p. 477.
We conclude that Gray cannot claim the status of a bona fide purchaser for value; that his
position is no better than that of his grantor, Steel; that he acquired the property subject to the
union's equity of reformation.
In October 1952 Gray gave to respondent Cooper an option to buy the east half of his
property. The option described the east boundary as 140 feet in accordance with all previous
conveyances.
In January 1953 Gray recorded the true survey plat showing the true dimensions. Later that
month the union's attorney advised Cooper of the 21.9-foot discrepancy and of the fact that
the union claimed an equitable right to it. Cooper acknowledged that he understood that there
was a dispute as to this strip. The following day the Cooper transaction was closed, a deed
passing from Gray to Cooper which stated the full true dimensions of the parcel extending
from the 150-foot point of beginning.
75 Nev. 128, 136 (1959) Lattin v. Gray
[Headnotes 8, 9]
With Cooper as with Gray the question is not as to his intent and expectation under his
agreement of purchase. The question is whether, at the time of taking title or payment of
purchase price, he had knowledge or notice of the union's mistake. An unperformed
obligation does not make an obligor a purchaser for value. He must have actually paid the
purchase price before securing notice. Moresi v. Swift, 15 Nev. 215. Cooper, upon the record,
was clearly put on notice prior to the closing of his transaction. He cannot claim the status of
a bona fide purchaser for value.
Throughout this opinion we have referred to Gray and Cooper in the singular. Actually,
each is married and in each instance the deeds ran to husband and wife. In one instance the
husband and wife took as joint tenants.
It is contended that, even should knowledge or notice on the part of the husband be
established in either case, there is no evidence whatsoever of knowledge on the part of the
wife; that agency between joint tenants does not follow from the fact of joint tenancy; citing
92 C.J.S., Vendor and Purchaser, sec. 350, p. 290.
[Headnote 10]
It is clear upon the record, however, that in each instance the husband negotiated for both
himself and his wife. The facts establish that actual agency existed. Notice to the husband
would, then, amount to notice to the wife. Steele v. Robertson, 75 Ark. 228, 87 S.W. 117.
Reversed with instructions that judgment be entered to the effect that the deeds from the
union to the Steels, from the Steels to the Grays and from the Grays to the Coopers be
reformed to specify a true point of beginning 21.9 feet north of that set forth in those
instruments.
Badt, J., Hanna, D. J., concur.
(Note: McNamee, J., having disqualified himself, the Governor designated Honorable
Richard R. Hanna, Judge of the First Judicial District Court, Department No. 2, to sit in his
place and stead.)
____________
75 Nev. 137, 137 (1959) City Motel, Inc. v. State
CITY MOTEL, INC., a Corporation; JOHANNES N. PEDERSEN, aka JOHN N.
PEDERSEN and RUTH PEDERSEN, His Wife; FRED HILL and MARJORIE HILL;
JOSEPH D. HALL; HELEN LEGGETT; MARY ELSIE MAY WELLESLEY and JUNE
ROSE MAY HIGLEY; LOUIS BENETTI and RITA BENETTI, Appellants, v. STATE OF
NEVADA, Ex Rel. STATE DEPARTMENT OF HIGHWAYS, Respondent.
No. 4099
March 4, 1959 336 P.2d 375
Appeal from judgment of Second Judicial District Court, Washoe County; A. J. Maestretti,
Judge, Department No. 2.
Action by the State on the relation of the State Department of Highways to quiet title to
certain land. From a judgment of the trial court the defendant appealed. The Supreme Court,
McNamee, J., held, inter alia, that under deeds to railroad, the words of conveyance all that
certain right of way followed by words and all that certain piece of land hereinafter
described for the purpose of said right of way did not enlarge the easement to stature of a
fee-simple interest in the land, but merely enlarged the nature of easement itself making it an
easement not only for the purpose of a right of way, but also for the exclusive use and control
of lands so long as right of way existed.
Reversed with directions.
Guild, Busey and Guild, of Reno, for Appellants City Motel, Inc., Joseph D. Hall, Louis
Benetti and Rita Benetti.
Ernest S. Brown, of Reno, for Appellants Johannes N. Pedersen, aka John N. Pedersen and
Ruth Pedersen.
Springmeyer and Thompson, of Reno, for Appellant Helen Leggett.
Goldwater, Taber and Hill, of Reno, for Appellants Fred Hill and Marjorie Hill.
John S. Halley, of Reno, for Appellants Mary Elsie May Wellesley and June Rose May
Higley.
Sidney W. Robinson, of Reno, and Harvey Dickerson, Attorney General, for Respondent.
1. Eminent Domain; Railroads.
A railroad ordinarily does not hold in fee the land over which its right of way is constructed and
maintained but merely an easement for such right of way whether such land is acquired by eminent domain
or otherwise, and that it might hold more than an easement is never presumed.
2. Railroads.
The intent of parties to deeds must determine the nature and extent of estate conveyed to railroad.
3. Stipulations.
Where facts in action involving the question whether deeds to railroad conveyed an easement or a
fee-simple title had been settled by written stipulation, intent of the parties could be ascertained only from
language of the deeds themselves.
4. Railroads.
Where a deed conveying land to railroad recites that interest being conveyed is a right of way over land
particularly described, the estate so conveyed amounts to a mere easement over that land, and even if there
is a grant of particular parcel of land with designated purpose that it be used as a right of way, only an
easement passes to grantee.
5. Railroads.
Under deeds to railroad, the words of conveyance all that certain right of way followed by words and
all that certain piece of land hereinafter described for the purpose of said right of way did not enlarge the
easement to stature of a fee-simple interest in the land, but merely enlarged the nature of easement itself,
making it an easement not only for purpose of a right of way, but also for the exclusive use and control of
lands so long as right of way existed.
6. Railroads.
A railroad company's abandonment of use of railroad, the tearing up and removal of its tracks and
conveyance of railroad's rights and interests in land to the state constituted abandonment of right of way so
that owner of dominant fee thereafter held such fee, and also the fee of the servient estate to the center
thereof free of the burden of easement.
7. Railroads.
Where railroad had abandoned right of way, if there was nothing in deeds from grantor to railroad
excepting the legal title to that part of right of way abutting grantors' successors' land which was
dominant thereto, then as present owners of dominant fee relieved of burden of
easement, their fee encompassed not only the fee of particular land described in
instrument under which they based their title but also the fee to center of the right of
way bordering thereon.
land which was dominant thereto, then as present owners of dominant fee relieved of burden of easement,
their fee encompassed not only the fee of particular land described in instrument under which they based
their title but also the fee to center of the right of way bordering thereon.
8. Railroads.
Where railroad had abandoned its right of way and attempted to convey its interest in land to the state,
and there was no adverse claim other than by the state and railroad to the fee in the right of way bordering
the lands of original grantors' successors, such successors were entitled to decree quieting title thereto as
against the state and the railroad.
9. Deeds.
Where grantor had already conveyed to railroad the easement of servient fee, which in his deed to
railroad he had described as all that certain right of way and all that certain piece of land hereinafter
described for the purposes of said right of way thereby creating an easement for right of way and for
incidents of use in connection therewith, the quoted words in subsequent deed saving and excepting
therefrom the rights of way for the railroad referred to something in esse at the time and were meant to
exclude from operation of grant some existing portion of estate granted which would otherwise pass under
general description of deed, so that fee of servient estate necessarily passed since it was embodied within
description of land conveyed.
10. Boundaries.
When grantor owns the land to center of right of way and parcels conveyed are described by metes and
bounds with no reference to adjoining right of way except as being one of boundary lines to land conveyed,
grantor conveys title to his grantee to the center of the right of way unless a contrary intent appears.
11. Boundaries.
Where grantor's deed to railroad did not pass a fee-simple title to land, his subsequent deed to grantees
conveying land by metes and bounds with no inclusion of any part of right of way gave such grantees
fee-simple title to center line of adjacent right of way.
OPINION
This is an action brought by the State to quiet title to certain land described in the
complaint. The State's claim of title stems from deeds, made in 1872 to the Virginia and
Truckee Railroad Company wherein the grantors were Thomas Hayden and wife, A. J.
Hatch and wife, M. C. Lake, and George Deremer.
grantors were Thomas Hayden and wife, A. J. Hatch and wife, M. C. Lake, and George
Deremer.
The said 1872 deeds all contained in the granting clauses the following language:
* * * has granted, bargained, sold, aliened, remised, released, conveyed and confirmed,
and by these presents does grant, bargain, sell, alien, remise, release, convey and confirm unto
the said party of the second part and to its assigns, forever, all that certain right of way over
and through the lands hereinafter described of said first party, and all that certain piece of
land hereinafter described for the purpose of said right of way. (Emphasis added)
It is the contention of all of the appellants that the said deeds conveyed to the Railroad
Company not a fee simple title to the particular land described therein, but only an easement
for the purpose of a right of way and for the incidents of use and control in connection with
such principal purpose. If such be the case, the appellants, except appellants Wellesley and
Higley, would now claim title to the land as abutting owners free of any easement. Appellants
Wellesley and Higley under these circumstances would base their claim of title to that portion
of the land described in the George Deremer deeds as his sole surviving heirs not only as
against the State as the successor in interest of the Railroad Company, but also as against
those appellants (Leggett, Hill and wife, and Hall) whose claim of title is founded on deeds
from George Deremer. On the other hand it is the State's contention that said deeds conveyed
to the Railroad Company a fee title to the land itself, and therefore the cessation of use of the
same as a railroad right of way would in no way affect their title. We must first determine
which of these two contentions is correct.
[Headnote 1]
A railroad ordinarily does not hold in fee the land over which its right of way is
constructed and maintained but merely an easement for such right of way whether such land
is acquired by eminent domain or otherwise; that it might hold more than an easement is
never presumed.
is never presumed. 3 Nichols, Eminent Domain, sec. 11.1 (3d ed. 1950); 2 Thompson, Real
Property, sec. 461 (Perm. Ed.).
[Headnotes 2, 3]
It is the intent of the parties to the deeds, which, in this case, must determine the nature
and extent of the estate conveyed to the Railroad Company, and inasmuch as the facts herein
have been settled by written stipulation, that intent can be ascertained only from the language
of the deeds themselves. 74 C.J.S. Railroads, sec. 84a, p. 473.
[Headnote 4]
Where a deed recites that the interest being conveyed is a right of way over land
particularly described, the law is well settled that the estate so conveyed amounts to a mere
easement over that land. Lockwood v. Ohio River R. Co., 103 F. 243 (4th Cir.), cert. denied
180 U. S. 637, 45 L.Ed. 710, 21 S.Ct. 920; City of San Gabriel v. Pacific Electric R. Co., 129
Cal.App. 460, 18 P.2d 996; Louisville & N. R. Co. v. Maxey, 139 Ga. 541, 77 S.E. 801; 2
Thompson, Real Property, sec. 462 (Perm. Ed.).
Where, however, there is a grant of a particular parcel of land with the designated purpose
that it be used as a right of way, it is held by some authorities that such a deed passes a fee
simple title to the land itself. Johnson v. Valdosta M. & W. R. Co., 169 Ga. 559, 150 S.E.
845; Radetsky v. Jorgensen, 70 Colo. 423, 202 P. 175, rehearing denied; Stevens v. Galveston
H. & S. A. R. Co. (Tex.), 212 S.W. 639.
Other authorities conclude that even under these circumstances only an easement passes to
the grantee. Sherman v. Petroleum Exploration, 280 Ky. 105, 132 S.W.2d 768, 132 A.L.R.
137; Noel Estate v. Kansas City Southern & G. R. Co., 187 La. 717, 175 So. 468, 132 A.L.R.
160; Barlow v. Chicago, R. I. & P. R. Co., 29 Iowa 276, 132 A.L.R. 159.
We are inclined to this latter view because we believe it more nearly effectuates the intent
of the parties. In Magnolia Petroleum Co. v. Thompson, 106 F.2d 217 {Sth Cir.),
(8th Cir.), 132 A.L.R. 150, (reversed on other grounds 309 U.S. 478, 84 L.Ed. 876, 60 S.Ct.
628), the court in holding that deeds to a railroad company which conveyed a strip of land for
a right of way conveyed only an easement, said:
An examination of the deeds under considerationis, we think, convincing thatthe
clear intent, expressly stated, was to convey to the railroad company only a right of way
easement for its railroad, and not a fee. The language used to describe the easement is apt and
appropriate for that purpose and no other. It designates the land to be subject to the usea
strip of land 60 (66) feet wideover and across'; it describes the use permittedfor a right
of way for said railroad.' This language makes it perfectly clear that the parties met for the
sole purpose of contracting for a railroad right of way.
In Sherman v. Petroleum Exploration, supra, the court said:
We think it may be well said that an indefinite or ambiguous conveyance of land
specifically for a railroad right of way is in its interpretation subject to the influence of a
general knowledge that much railroad right of way is expressly or by operation of law limited
to an easement, which has been usually found sufficient for the purposes desired.
In State ex rel. State Highway Commission v. Griffith, 342 Mo. 229, 114 S.W.2d 976,
981, 132 A.L.R. 151, the court, construing the use of the words right of way as effectuating
an easement, said:
* * * but, if all purpose use was in contemplation, then why insert the language for right
of way for said railroad'?
If said deeds to the Railroad Company had contained only a conveyance of a right of way
or only the conveyance of a parcel of land with a designated purpose, what we have
heretofore said with reference to each would be determinative. But here the deeds contained
both.
The State argues that if only the grant of an easement was intended, that would have been
accomplished by the grantors conveying all that certain right of way, with no further
designation of the estate being conveyed. But when the grantors add: and all that certain
piece of land hereinafter described for the purpose of said right of way, they must have
intended to convey something in addition to what already was conveyed, and this something
in addition could only have been the fee simple to the land in question.
[Headnote 5]
We are not in accord with this conclusion of the State. In our opinion the words of
conveyance all that certain right of way followed by the words and all that certain piece of
land hereinafter described for the purpose of said right of way do not enlarge the easement to
the stature of a fee simple interest in the land, but merely enlarge the nature of the easement
itself making it an easement not only for the purpose of a right of way, but also for the
exclusive use and control of the land so long as the right of way exists.
The following authorities support this view: Alabama G. S. R. Co. v. McWhorter, 202 Ala.
455, 80 So. 839; Vermilya v. Chicago, M. & St. P. R. Co., 66 Iowa 606, 24 N.W. 234.
Having determined that the Railroad Company through said deeds received only easements
over the lands described therein,
1
we must next recognize the fact that the easements and the
rights incident thereto have terminated by reason of the following stipulated facts:
On May 31, 1950, pursuant to authorization from the Public Service Commission of the
Staff of Nevada, which action was approved by the Interstate Commerce Commission, the
Virginia & Truckee Railway {successor in interest to Virginia and Truckee Railroad
Company) ceased operations as a railroad over the lands in question, removed its railroad
tracks therefrom on October 1, 1950, and thereafter conveyed all its rights and interests
in the land {with certain exceptions) to the State of Nevada which does not intend to use
the property for railroad purposes.
____________________

1
In view of our conclusion that the deeds conveyed only an easement to the Railroad Company it is
unnecessary to determine whether certain statutes, Nev. Stat. 1865, c. 146, p. 427 (NCL 1929, secs. 6235-6292),
in effect at the time Virginia & Truckee R. R. Co. first acquired an interest in the disputed right of way from
the heretofore-mentioned original grantors, limited a railroad from any greater interest than an easement in lands
acquired for right of way purposes.
Public Service Commission of the Staff of Nevada, which action was approved by the
Interstate Commerce Commission, the Virginia & Truckee Railway (successor in interest to
Virginia and Truckee Railroad Company) ceased operations as a railroad over the lands in
question, removed its railroad tracks therefrom on October 1, 1950, and thereafter conveyed
all its rights and interests in the land (with certain exceptions) to the State of Nevada which
does not intend to use the property for railroad purposes. Neither the Virginia and Truckee
Railway nor its grantee, the State, has been in actual physical occupancy of said property
since, but only in constructive possession under their claim of title.
As stated by the court in Mammoth Cave National Park Association v. State Highway
Commission, 261 Ky. 769, 88 S.W.2d 931, 935:
The record clearly discloses that the railroad company, by abandoning the use of its
railroad, tearing up and removing its tracks, and attempting to convey the land to others to be
dedicated to other purposes, abandoned its right of way, and the lands thereupon reverted to
the grantor or their successors in title.
[Headnote 6]
Or in other words, an easement for railroad purposes is abandoned under such
circumstances and the owner of the dominant fee thereafter holds such fee, and also the fee of
the servient estate to the center thereof free of the burden of the easement. United States v.
Magnolia Petroleum Co., 110 F.2d 212 (10th Cir.); Brown v. Weare, 348 Mo. 135, 152
S.W.2d 649, 136 A.L.R. 286; Jones v. Van Bochove, 103 Mich. 98, 61 N.W. 342.
[Headnote 7]
It is stipulated that all of the appellants, other than appellants Wellesley and Higley, are the
successors in interest of the grantors (Thomas Hayden and wife, A. J. Hatch and wife, M. C.
Lake, and George Deremer) in those deeds to the Railroad Company hereinabove considered,
with respect to the land abutting on the said right of way. Therefore, if there was nothing in
the deeds from any of their predecessors in interest excepting the legal title to that part of
the right of way abutting their land which was dominant thereto, then as present owners
of the dominant fee relieved of the burden of the easement, their fee encompasses not
only the fee of the particular land described in the instrument under which they base their
title but also the fee to the center of the right of way bordering thereon.
deeds from any of their predecessors in interest excepting the legal title to that part of the
right of way abutting their land which was dominant thereto, then as present owners of the
dominant fee relieved of the burden of the easement, their fee encompasses not only the fee of
the particular land described in the instrument under which they base their title but also the
fee to the center of the right of way bordering thereon.
[Headnote 8]
With respect to the appellants, City Motel, Inc., a corporation, Johannes N. Pedersen, Ruth
Pedersen, Louis Benetti, and Rita Benetti, and with respect to appellant Helen Leggett as to
parcel 1 described in her answer and cross-claim, there was no adverse claim by appellants
Wellesley and Higley or by any party other than the State and Virginia & Truckee Railway to
the fee to the right of way (i.e., to the center thereof) bordering their lands; thus they are
entitled to a decree quieting title thereto as against the State and against Virginia and Truckee
Railway. 28 C.J.S. Easements, sec. 58, p. 723, n. 60; accord Blanding v. City of Las Vegas,
52 Nev. 52, 280 P. 644, 68 A.L.R. 1273; accord Lindsay v. Jones, 21 Nev. 72, 25 P. 297.
Appellants Wellesley and Higley, while admitting that the appellants Hill and wife,
Leggett, and Hall own certain of the land abutting the railroad right of way received through
mesne conveyances from George Deremer, dispute the claim that these latter named
appellants are entitled to any part of the fee of the land on which the right of way was an
easement, contending that the deeds from their ancestor George Deremer, to the predecessors
in interest of appellants Leggett, Hill et ux., and Hall expressly excepted or limited the
description so as to exclude the right of way land, and therefore upon termination of the
easement, the fee simple estate in such right of way land passed to them as the sole heirs of
said George Deremer. It thus becomes necessary to consider the granting clauses in the deeds
from George Deremer to the predecessors in interest of appellants Leggett, Hill et ux., and
Hall.
[Headnote 9]
Appellant Leggett claims title to parcels 2, 3, 4, and 5 of the five
2
parcels described in her
answer and cross-claim through a deed from George Deremer to Mary Deremer made after
his grant of the easement to the Railroad Company as aforesaid. This deed included in the
description of the land being conveyed the land on which the right of way then existed, and
contained the following: * * * saving and excepting therefrom the rights of way for the
Virginia and Truckee Railway Company * * *.
If these quoted words have the legal effect of excepting from the conveyance the fee of the
land on which the right of way existed (and such is the contention of appellants Wellesley and
Higley) then of course that fee, in the absence of any other conveyance thereof, would remain
in the name of George Deremer and on his death would pass to his heirs. In our opinion such
was not the case.
The words saving and excepting refer to something in esse at the time and are meant to
exclude from the operation of the grant some existing portion of the estate granted which
would otherwise pass under the general description of the deed. Inasmuch as George Deremer
had already conveyed to the Railroad Company only the easement of the servient fee, which
in his deed to the Railroad Company he had described as all that certain right of way and
all that certain piece of land hereinafter described for the purposes of said right of way,
thereby creating a new and different interest in land, to wit, an easement for a right of way
and for the incidents of use in connection therewith, it is clear to us that having already
created and conveyed this new estate and describing it as aforesaid, he then in such later
conveyance to Mary Deremer intended to exclude it and only it by his use of the similar
words of description, to wit: the rights of way for the Virginia and Truckee Railway
Company.
____________________

2
As to parcel 1 thereof Mary Deremer was not a predecessor in interest and therefore appellants Wellesley
and Higley claim no interest thereto.
Having excepted from his deed to Mary Deremer only the easement for the right of way,
which he had already conveyed to the Railroad Company, the fee of the servient estate
necessarily passed since it was embodied within the description of the land conveyed. Shell
Petroleum Corporation v. Ward, 100 F.2d 778 (5th Cir.); Paine v. Consumers' Forwarding &
Storage Co., 71 F. 626 (6th Cir.); Penn. v. Holland, (Tex.Civ.App.) 105 S.W.2d 351,
rehearing denied.
We have thus disproved and disposed of the contentions of appellants Wellesley and
Higley with respect to the property of appellant Helen Leggett.
The appellants Hill et ux. and Hall are successors in interest of one Andrew Litch, and, in
his deed to Andrew Litch, George Deremer described the land being conveyed by metes and
bounds with no inclusion of any part of the right of way and as all the land lying between the
right of way of the Virginia and Truckee Railroad Company as heretofore conveyed by said
first party and the county road. Appellants Wellesley and Higley contend that by this
description the grantee took only to the border of the right of way, that the grantor retained his
interest in the fee of the right of way, and that as heirs of the grantor they are now the owners
of the servient fee free of the easement.
There is a line of authorities that supports their view in this respect. Stuart v. Fox, 129 Me.
407, 152 Atl. 413; Joens v. Baumbach, 193 Cal. 567, 226 P. 400; Gosstol Realty Corporation
v. Gillman, 224 App.Div. 63, 229 N.Y.S. 201; see 2 A.L.R. 6, 28.
[Headnotes 10, 11]
On the other hand there are many cases which hold that where the parcels conveyed are
described by metes and bounds with no reference to the adjoining right of way except as
being one of the boundary lines to the land conveyed, the grantor conveys title to his grantee
to the center of the right of way unless a contrary intent appears. Paine v. Consumers'
Forwarding & Storage Co., supra; McPherson v. Monegan, 120 Mont. 454, 187 P.2d 542;
City of Nashville v. Lawrence, 153 Tenn. 606, 284 S.W. SS2, 47 A.L.R. 1266; See 49
A.L.R.2d 9S2, 1017-1030.
S.W. 882, 47 A.L.R. 1266; See 49 A.L.R.2d 982, 1017-1030. This we think to be the general
rule when the grantor owns the land to the center of the right of way. 11 C.J.S. Boundaries,
sec. 45, p. 594, see 6 Thompson, Real Property, secs. 3396, 3400 (Perm Ed.). Having already
reached the conclusion that the deed from George Deremer to the Railroad Company did not
pass a fee simple title to the land, we further conclude that his subsequent deed to Andrew
Litch and the mesne conveyances that followed down to the appellants Hill et ux. and Hall
gave the grantees fee simple title to the center line of the adjacent right of way.
Judgment is reversed and the trial court is directed to enter judgment in favor of all of the
appellants, except appellants Wellesley and Higley, quieting their title to the lands in question
as against the State and Virginia & Truckee Railway, and with respect to appellants Leggett,
Hill et ux., and Hall also quieting their title as against appellants Wellesley and Higley.
____________
On Petition for Rehearing and Motion
to Amend and Modify Judgment
April 1, 1959 337 P.2d 273
Supreme Court held that where none of the parties to the appeal had requested a rehearing
or an amendment of judgment, successful appellants were entitled to have issued a remittitur
to the court below without further delay and enjoyment of their adjudicated rights and
petitioner not being a party to the appeal, was precluded from moving to amend judgment.
Respondent's motion to strike petition for rehearing granted and petitioner's motion to
amend denied.
Where Supreme Court in determining appeal in case considered pleadings, evidence,
and stipulations of appellants and respondent and none of the parties had requested a
rehearing or an amendment of judgment which had been requested by person who
was not a party, successful appellants were entitled to have issued a remittitur to
court below on expiration of 15 days without further delay in enjoyment of their
adjudicated rights.
respondent and none of the parties had requested a rehearing or an amendment of
judgment which had been requested by person who was not a party, successful appellants
were entitled to have issued a remittitur to court below on expiration of 15 days without
further delay in enjoyment of their adjudicated rights.
Petition for rehearing constituting argument upon the merits of appeal, was not within
scope of petition for rehearing. Supreme Court Rules, Rule XV.
Petitioner, who was not a party to the appeal, was precluded from moving to amend
judgment.
OPINION
Per Curiam:
A petition for rehearing and a motion to amend judgment was filed herein on behalf of
Savina Sala, one of the defaulting defendants below who is not a party to this appeal.
The petition prays that the judgment be revised and modified so as to reverse the judgment
not only as to the appealing defendants but also as to Savina Sala and all other defaulting
and non-appealing defendants as to any portion of the right of way' descending from Thomas
Hayden and wife, A. J. Hatch and wife, M. C. Lake, and George Deremer.
Petitioner contends that the trial court's judgment was joint as to all defendants including
the defendants in default, and that a reversal on the appeal by certain of those defendants who
appeared below, inures to the benefit of all defendants. She adds that the judgment of reversal
inures to her benefit without any specific declaration by this court.
Respondent has moved to strike this petition for rehearing and to deny said motion to
amend upon the ground that petitioner is not a party appellant and as such has no standing
before this court.
[Headnote 1]
In determining the appeal in this case the court considered the pleadings, the evidence, and
the stipulations of the appellants and respondent.
of the appellants and respondent. None of these parties has requested a rehearing or an
amendment of the judgment. The successful appellants are therefore entitled to have issued a
remittitur to the court below upon the expiration of fifteen days without further delay in the
enjoyment of their adjudicated rights.
[Headnotes 2, 3]
The matters presented by petitioner herein are not within the scope of a petition for
rehearing as contemplated by Rule XV of Rules of the Supreme Court and as pointed out in
the case of Gershenhorn v. Stutz on Petition for Rehearing, 72 Nev. 312, 306 P.2d 121.
Furthermore, petitioner, not being a party to the appeal, is under the circumstances precluded
from moving to amend the judgment.
Respondent's motion to strike the petition for rehearing is granted, and petitioner's motion
to amend is denied.
____________
75 Nev. 151, 151 (1959) Cortina v. DeSollano
IGNACIO CORTINA B., CARLOS LEZAMA, GUILLERMO ALVAREZ MORPHY, W.
HAMPTON KATZE, HERMAN H. MAULHARDT and JEAN MAULHARDT, Husband
and Wife; DONALD M. PRENTICE and ELIZABETH PRENTICE, Husband and Wife;
ANTONIO DI GIOVANNI and GANDOLFA DI GIOVANNI, Husband and Wife; ANNA DI
GIOVANNI; CHARLES F. LA MANTIA and MARGARET LA MANTIA, Husband and
Wife; JOSEPH V. LA MANTIA and VERNA LA MANTIA, Husband and Wife; PHILLIP J.
LA MANTIA and DOROTHY LA MANTIA, Husband and Wife; T. ANTHONY LA
MANTIA and PEARL LA MANTIA, Husband and Wife; and PROCESS MILLERS, INC., a
Nevada Corporation, Appellants, v. CARLOS S. F. DIEZ de SOLLANO, JOSE MARIA
BERRIOZABAL, COLLIS E. DORE and WARREN J. ROUSSEL, Respondents.
No. 4115
March 13, 1959 336 P.2d 762
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Presiding
Proceeding for declaratory judgment with respect to purchase of additional issue of
corporate stock in exercise of original pre-emptive rights by original stockholders wherein
defendant stockholders attacked validity of additional stock issued. The trial court rendered
judgment for defendants, and plaintiffs appealed. The Supreme Court, Badt, J., held that
where amendment of corporation's articles provided that shares of capital stock should be
increased that original stockholders were to have pre-emptive right to purchase additional
shares by payment of 25 percent of price within ten days after notice, and 25 percent on or
before each of three later dates and that, if stockholders did not exercise rights, other
stockholders should have right to purchase unsold shares, but because of unforeseen causes
not due to any fault or misconduct of any officer or director call for exercise of pre-emptive
rights was delayed until after second payment was due and delay did not prejudice any
stockholder and was not detrimental to corporation, delay was an immaterial variance,
stock issue was not void, stockholders were required to pay 50 percent of price within ten
days after notice and stockholders who failed to do so were not entitled to exercise their
rights thereafter.
fault or misconduct of any officer or director call for exercise of pre-emptive rights was
delayed until after second payment was due and delay did not prejudice any stockholder and
was not detrimental to corporation, delay was an immaterial variance, stock issue was not
void, stockholders were required to pay 50 percent of price within ten days after notice and
stockholders who failed to do so were not entitled to exercise their rights thereafter.
Reversed and remanded with instructions.
(See also Opinion on Petition for Rehearing, page 167)
Morse, Graves & Compton, of Las Vegas, for Appellants.
Hawkins & Cannon and Marion A. Smith, of Las Vegas, for Respondents.
1. Corporations.
Where amendment to corporation's articles provided that shares of capital stock should be increased, that
original stockholders were to have pre-emptive right to purchase additional shares by payment of 25
percent of price within ten days after notice, and 25 percent on or before each of three later dates and that,
if stockholders did not exercise rights, other stockholders should have right to purchase unsold shares, but,
because of unforeseen causes not due to any fault or misconduct of any officer or director, call for exercise
of pre-emptive rights was delayed until after second payment was due and delay did not prejudice any
stockholder and was not detrimental to corporation, delay was an immaterial variance, stock issue was not
void or voidable, stockholders were required to pay 50 percent of price within ten days after notice, and
stockholders who voted for amendment but who failed to subscribe within 10-day period were not entitled
to exercise their pre-emptive rights thereafter. NRS 78.390.
2. Corporations.
Where amendment to corporation's articles provided for increase in capital stock and that original
stockholders were to have pre-emptive right to purchase additional shares within ten days after notice that
certificate of amendment had been issued by Secretary of State, act of corporations's secretary notifying
stockholders of right and requirement to subscribe for new stock was a ministerial duty of secretary and it
was not necessary that sending of notice be authorized or approved by board of directors.
3. Corporations.
Where unanimously adopted resolutions of stockholders and amendment of articles of corporation
pursuant thereto provided all of details necessary for increase of capital stock of corporation and sale
thereof to stockholders and resolution and amendment were completely effective
except as to miscalculation of time for sale of stock, issue of stock was not invalid
because of lack of subsequent action of directors fixing price of stock, number of
shares to be issued, and manner and terms of sale to persons other than existing
stockholders in event existing stockholders did not subscribe.
corporation and sale thereof to stockholders and resolution and amendment were completely effective
except as to miscalculation of time for sale of stock, issue of stock was not invalid because of lack of
subsequent action of directors fixing price of stock, number of shares to be issued, and manner and terms of
sale to persons other than existing stockholders in event existing stockholders did not subscribe.
4. Corporations.
Absent any oppression, fraud, violation of trust, prevention of equal opportunity to exercise right
afforded to all other stockholders, pre-emptive right to subscribe is lost by failure to exercise it in the
manner required of all stockholders.
5. Corporations.
Where stockholders were required to exercise pre-emptive rights by payment of 50 percent of price of
stock within 10 days after July 6, stockholders who in September attempted to make a one-quarter payment
failed to comply with requirements and did not make a valid subscription.
OPINION
Plaintiffs, as stockholders of Process Millers, Inc., sought a declaratory judgment to
resolve the confusion growing out of the purchase of an additional issue of corporate stock in
the exercise of pre-emptive rights by the original stockholders. In the exercise of such
pre-emptive rights plaintiffs had acquired stockholder voting control of the corporation, under
which control they had elected a board of directors. Defendants de Sollano and Berriozabal
attacked the validity of the additional stock issue, the validity of the purchase of additional
stock by plaintiffs under plaintiffs' asserted pre-emptive rights, and contend that defendants
were unlawfully prevented from exercising their own pre-emptive rights, which, if defendants
had not been thus unlawfully frustrated, would have given defendants voting control. The
trial court denied relief to plaintiffs and entered judgment in favor of defendants, holding the
additional stock issue to be void.
Under the admitted facts we must hold this conclusion to be error. Such error grows out of
the conclusions of the trial court as to the legal effect of the various corporate proceedings
and of the actions of individual stockholders, officers, and directors.
corporate proceedings and of the actions of individual stockholders, officers, and directors.
An analysis of the admitted facts reveals that they do not support the trial court's findings
and conclusions as to what are manifestly mixed questions of facts and law.
Process Millers, Inc., had been incorporated with a capital of $30,000, consisting of 30,000
shares of the par value of $1.00 each, for the main purpose of exploiting a process of milling
grain and obtaining patents for the same in the United States and elsewhere. The cash
proceeds for the original stock issue had been consumed, so that an additional $10,000 was
necessary, and the directors unanimously concluded that the raising of this additional money
should be accomplished by increasing the capital stock from 30,000 to 40,000 shares, with
the original stockholders having pre-emptive rights, proportionate to their stockholdings, to
purchase the additional 10,000 shares at par. To this end the directors on February 18, 1953,
at Las Vegas, Nevada, unanimously adopted resolutions calling for a meeting of stockholders
to vote on the proposed increase of capital stock. A meeting of stockholders held February 18,
1953, found all 30,000 shares present. There were submitted to the meeting the resolutions of
the directors calling for an amendment of the articles to increase the capital stock, whereupon
the stockholders unanimously adopted resolutions amending article IV of the articles by
providing for an increase of the capital from $30,000 to $40,000. The amendment included,
among others, the following provisions:
That the stockholders of this corporation be given the pre-emptory right and privilege for
a period of ten (10) days from and after they are notified that the Secretary of State of Nevada
has issued his certificate amending the charter of this corporation as aforesaid to determine
whether or not they are to subscribe pro rata for the number of new shares to be issued by the
corporation in accordance with the number of shares each stockholder now owns as of this
date, and any stockholder desiring to exercise said pre-emptory privilege shall upon the
exercise thereof pay twenty-five percent {25%) of the par value of the new stock so
subscribed by him and will agree to pay for the balance of said stock as follows, to wit:
twenty-five percent {25%) of the par value of said new shares to be paid by said
shareholder on or before May 1S, August 1S, and November 1S, 1953, respectively.
upon the exercise thereof pay twenty-five percent (25%) of the par value of the new stock so
subscribed by him and will agree to pay for the balance of said stock as follows, to wit:
twenty-five percent (25%) of the par value of said new shares to be paid by said shareholder
on or before May 18, August 18, and November 18, 1953, respectively.
That in the event the present stockholders do not exercise their pre-emptory right to
purchase their pro rata shares of the authorized stock of this corporation within the period of
time and in the manner above stated, then and in that event the remaining stockholders who
have exercised their pre-emptory right are given the further pre-emptory right to, within ten
(10) days after they are notified that they have such a right, purchase pro rata all of the new
authorized stock of this corporation not subscribed for.
At the same meeting de Sollano, W. Hampton Katze, and Collis E. Dore were elected
directors. A directors' meeting was called for March 13, 1953, which was held at Los Angeles
on that date. Directors Katze and de Sollano were present. It was announced that director
Dore had been removed, whereupon Ignacio Cortina was elected to fill the vacancy. He took
office at once. Thereupon the directors elected de Sollano as president, Katze as vice
president and treasurer, and Cortina as secretary. The directors then unanimously passed
resolutions calling for further amendment of the articles requiring all stockholders who
desired to sell any of their shares first to grant a refusal to the other subsisting stockholders
(details being provided in the resolutions), and calling for a submission of the proposed
amendment to a meeting of stockholders. The proposed amendment also provided for calling
in the old stock to the end that new certificates might be issued, pursuant to the amendment
when effective, which would recite on their face such restrictions on sale of stock.
A directors' meeting of March 16, 1953, at which all directors were presentde Sollano,
Cortina and Katzewas held. A further amendment of articles was recommended for the
cumulating of shares in voting for directors and calling a stockholders' meeting for March
16, 1953.
directors and calling a stockholders' meeting for March 16, 1953. Such meeting was held at
which the amendment restricting sales of stock as subject to a refusal by subsisting
stockholders was unanimously approved. At this point all stockholders were apparently aware
of the fact that no certificate of the amendment of article IV had yet been filed.
The participation of all stockholders and directors in the stockholders' and directors'
meetings last above referred to would appear to have importance and significance, even
though our main problem must be devoted to the amendment of article IV providing for the
increase of capital stock from 30,000 shares to 40,000 shares, the pre-emptive rights
thereunder, and the notices given and the action taken by reason thereof. These we now
proceed to consider.
As noted from the amendment quoted above, the pre-emptive right was required to be
exercised within ten days after notice that the certificate of amendment had been issued by the
secretary of the State of Nevada, with the payment down, upon such exercise, of 25 percent,
and an agreement for the payment of 25 percent on or before May 18, 1953, 25 percent on or
before August 18, 1953, and 25 percent on or before November 18, 1953; and that in the
event of failure to exercise such right in the period and manner stated, the remaining
stockholders were given the further pre-emptive right for a period of ten days after notice to
purchase pro rata the new stock not subscribed for.
The confusion commenced at this point. The certificate of amendment was not issued by
the secretary of the State of Nevada until May 6, 1953, and a certified copy of such
amendment was filed in the office of the county clerk of Clark County, Nevada, May 9, 1953.
The secretary of the corporation, on July 6, 1953, mailed notices to the stockholders advising
of the filing of the certificate of amendment, directing their attention to their pre-emptive
right to purchase their pro rata share of the capital and requiring that they notify the company
within ten days if they desired to exercise such right and, if so, to pay within said period 50
percent of the subscription, an additional 25 percent on August 1S and the final 25 percent
on November 1S, the latter two payments to be evidenced by promissory notes.
the subscription, an additional 25 percent on August 18 and the final 25 percent on November
18, the latter two payments to be evidenced by promissory notes.
On receipt of this letter all stockholders except de Sollano and Berriozabal exercised their
pre-emptive rights, made the 50 percent down payment, and forwarded notes for the third and
fourth payments, except that certain stockholders took credit for certain advances to the
corporation made in anticipation of receiving credits on their stock subscriptions. De Sollano
and Berriozabal were entitled to purchase 3,600 shares of the new issue in accordance with
their stockholding at the time. As they did not do so, notices were sent by the secretary to the
other stockholders, who subscribed and paid for the 3,600 shares open to them.
(1) The first issue for determination concerns the court's holding that the entire $10,000
issue of stock provided for under the amendment to article IV and in the resolutions of
directors and stockholders authorizing such amendment was void. Respondents contend that
this is amply supported by the evidence and the law, that the judgment denying plaintiffs any
relief must accordingly be affirmed, and that no further questions raised on the appeal need be
considered.
The court's finding in this regard is as follows:
That in amending said Articles of Incorporation it was contemplated by and was the
intention of the stockholders that said stockholders would be able to subscribe to and pay for
their respective shares of the additional stock to be issued by the payment of 25% of the
subscription price upon subscribing thereto, and the balance thereof in installments each three
months thereafter. (Emphasis added.)
Respondents repeatedly insist in their answering brief that it was the contemplation and the
intention of the stockholders that they would be allowed to subscribe to and pay for their
respective shares of the new issue by the payment of 25 percent of the subscription price upon
subscribing thereto within ten days after notice, and the balance thereof in installments each
three months thereafter; that the down payment could not be demanded in excess of 25
percent and that the following payments could not be demanded until a lapse of three
months after the next preceding payment.
be demanded in excess of 25 percent and that the following payments could not be demanded
until a lapse of three months after the next preceding payment. They contend that this is the
method provided in article IV as amended, and that the failure to follow such method
deprived them of their pre-emptive rights, and that the entire new issue was accordingly void.
If this contention were correct, it would follow that immediately upon the adoption of the
stockholders' resolutions of February 18, 1953, providing for the amendment of article IV and
the issue and sale of the additional 10,000 shares of stock, any issue of stock under such
resolutions and amendment would necessarily be void. This is so, because the resolutions and
amendment made it impossible to carry out the proceedings for the issuance and sale of new
stock strictly in accordance therewith. Our statute (NRS 78.390) requires the initiation of
proceedings to effect the amendment through action of the directors followed by action of the
stockholders and then by a certificate executed and acknowledged by the president and
secretary, certifying to the proceedings, and filed with the secretary of state, and a certified
copy thereof filed in the office of the county clerk where the principal office of the
corporation is situated. The amendment required a ten-day notice to be mailed to
stockholders. The secretary of state's office is at Carson City. The county clerk's office is at
Las Vegas. The two are some 440 miles apart. The president and secretary both resided in
Mexico City, Mexico. The vice president resided in California.
At the conclusion of the stockholders' meeting of February 18, no certificate of amendment
had been drawn. What would be a minimum number of days required for the drawing of the
certificate, its execution and acknowledgment, its filing with the secretary of state at Carson
City, the obtaining from the secretary of state of a certified copy, the filing thereof with the
county clerk at Las Vegas, and the sending of the required ten-day notice does not appear.
Such time in any event would have consumed a material part of the available period between
February 18 and May 18. It was impossible for three months to lapse between the first two
payments.
was impossible for three months to lapse between the first two payments. As we have noted,
the certificate of amendment was not filed with the secretary of state till May 6 and the
certified copy was not filed with the county clerk till May 9 and the notice was not sent out by
the secretary of the corporation till July 6, 1953. No explanation is given of the reason for
these delays. Some of them may be accounted for by those provisions contained in the
proceedings for the amendment of articles IX, X, and XI which required the calling in of the
old stock and the printing and issuance of new stock certificates reciting the amendments of
the articles, all of which were authorized almost a month after the corporate proceedings
amending article IV.
1
In any event there is no charge of fraud or willful misconduct as cause
of the delay.
Under the circumstances recited, it is unthinkable that the entire proceedings for the
amendment of article IV became meaningless as soon as they were adopted and that any stock
issued thereunder necessarily would be void. Yet this would be the situation confronting the
corporation and its officers, directors, and stockholders if the court's finding in this regard is
sustained.
The directors and stockholders, at the meetings referred to, transacted a great deal of
other business, all of which was meticulously reported in the minutes.
____________________

1
On March 13, 1953, the directors recommended amending the articles by adding article IX giving
subsisting stockholders a right of refusal before sale of stock by any stockholder to a third person, and by adding
article X prohibiting a transfer of the corporation's assets or patent rights without the vote or written consent of
three fourths of the stockholders. The directors further resolved at such meeting that upon such amendment of
the articles the stockholders be required to surrender their certificates within 30 days after written notice to the
end that the secretary might issue in place of such certificates new certificates stating the substance of the
amendments, and that no voting rights or dividend rights would exist except pursuant to the holding of such
exchanged certificates. On March 16, 1953, the directors recommended a further amendment to the articles by
adding article XI providing for the right of stockholders to cumulate their stock-voting rights for the purpose of
voting for a single director or for voting for two or more. On March 16, 1953, a stockholders' meeting was held,
with all stock present or represented in which the proposed amendments, by adding articles IX, X, and XI, were
unanimously adopted.
Only one certificate of amendment was drawn, executed, and filed with the secretary of state. This included
the amendment of article IV and the addition of articles IX, X, and XI.
referred to, transacted a great deal of other business, all of which was meticulously reported
in the minutes. It has not been necessary to refer to these other matters, but they evidence the
fact that the directors and stockholders gave careful consideration to many matters affecting
the business of the corporation and were fully advised by counsel. The proceedings of the
directors and the stockholders with reference to the amendments of the articles indicate an
exact compliance with the requirements of the corporation statutes controlling the method of
amending the articles. Only in the matter of an apparent miscalculation of time in subscribing
to and paying for the new stock is any difficulty encountered. Apparently because of this,
respondents now contend that the findings and judgment must be supported on the ground
that respondents were deprived of exercising their pre-emptive rights for the purchase of new
stock by reason of the violation of the exact conditions imposed by article IV as amended.
In contending that the crucial part of article IV, as amended, was to permit a lapse of three
months between each 25 percent installment payment for the stock, respondents attempt to
avoid impossibility of such a situation by contending that it is apparent that respondents,
because of their ignorance of the law, assumed that the passing of the resolutions was all that
was required to effect the amendment and that the subscriptions for the new stock could be at
once received. If this be so, it is difficult to find prejudice. Respondents, like the other
stockholders, were simply given an extension of time for the payment of their first two
installments.
[Headnote 1]
We therefore conclude that the delay in the call for the exercise of the pre-emptive rights,
resulting from unforeseen causes not due to any fault or misconduct of any of the officers or
directors, was an immaterial variance and did not in itself invalidate pre-emptive purchases of
stock thereunder. Such call, through the letter of July 6, 1953, extended the time from that
originally contemplated, February 18, 1953, for the exercise of the pre-emptive rights, to
July 16, 1953.
of the pre-emptive rights, to July 16, 1953. It likewise extended the time for the second 25
percent payment, originally contemplated to be May 18, 1953, to July 16, 1953. It left the
time for payment of the third 25 percent installment at August 18, 1953, and of the fourth 25
percent installment at November 18, 1953. The resulting extensions of time for the exercise
of the pre-emptive rights and for the payments of the first and second 25 percent installments
in accomplishing the same applied to all stockholders. It prejudiced none of them; in fact it
was beneficial if anything at all. It does not appear that it was detrimental to the corporation
itself or that it frustrated to any extent whatever the purpose of the amendment or the
unanimous approval of the stockholders. It affords no support to a finding of fact that the
issue was void. On the contrary, the only conclusion that can be drawn under the
circumstances is that the variance from the exact wording of the amendment was immaterial.
It is not a whole truth to say, as contended by respondents, that the secretary's notice of July 6
changed the requirement of a 25 percent down payment to a 50 percent down payment. The
original provision for the down payment on February 18 and the second payment on May 18
could, of course, not be accomplished through the notice of July 6. The original dates had
already passed. The July 6 notice neither increased the down payment nor did it accelerate
any of the payments. The effect of the extension of time was simply that the down payment
and the second payment were both due under the ten-day notice given on July 6. If, as
stipulated in the agreed statement of facts, the purpose of making the subscription price
payable in installments was so that it would not be a financial burden upon the stockholders
to pay for the stock, the financial burden upon all stockholders was lightened by the
extension of time for the first and second installments. And if the purpose of the increase of
stock and the sale of the additional 10,000 shares was because (as stipulated in the agreed
facts) the corporation became in need of money to further exploit the said inventions," this
was met by the proceedings as had.
inventions, this was met by the proceedings as had. Respondents do not assert in their brief
that any rights or activities of the corporation were prejudiced by the delay in putting into the
corporation's treasury the proceeds of the first two installment payments. Indeed, as to any
funds immediately needed, some stockholders made payment to the corporation to be credited
to the anticipated payments for their stock.
[Headnote 2]
(2) Respondents further contend that the secretary's notice of July 6 notifying the
stockholders of the right and requirement to subscribe for the new stock was without any
effect because it was not authorized or approved by the board of directors; that such notice
was, accordingly, invalid and created no rights or obligations upon the corporation or the
stockholders. We find no merit in this contention. It was the ministerial duty of the secretary
to send out the notices as soon as the necessary facts were in his possession.
[Headnote 3]
(3) Respondents further assert that the entire issue was invalid, as found by the court,
because of lack of subsequent action of the directors fixing the price of the stock, either at or
above par, the number of shares to be issued, the manner and terms of sale to persons other
than the present stockholders in the event the present stockholders did not subscribe, and
other provisions normally associated with the issue and sale of stock by a corporationeven
the determination that the additional 10,000 shares should be issued. We are compelled to
reject this contention. The unanimously adopted resolutions of stockholders and the
amendment of the articles pursuant thereto provided all of the details necessary, and were
completely effective, except as to the miscalculation of time above discussed. The authorities
cited by respondents to the effect that the mere power of the corporation, under its articles or
amended articles to issue stock, does not in itself authorize the issuance and sale thereof
without proper authorization, are not in point.
(4) The court further found that the issuance and sale of the additional 10,000 shares as
above described prevented the defendants de Sollano and Berriozabal from subscribing to
and paying for their respective pro rata shares of said additional 10,000 shares and thereby
denied and violated the pre-emptive rights of said defendants de Sollano and Berriozabal as
set forth in said certificate of amendment. Respondents vehemently assert again and again
that such is the case. As we have seen, these respondents, like all the other stockholders, were
simply afforded an extension of time to subscribe to the stock and to make their first and
second payments. They never did subscribe, they made no payments, they never obligated
themselves to make the future payments. In compliance with the notice of July 6, 1953, the
respondents, in like manner as did all the other stockholders, mailed in their old stock and
were issued new certificates containing the substance of the other amendments to the articles.
However, with reference to the exercise of their right to purchase new stock, respondents
instead, by letters dated July 30, 1953, but which were not delivered to the secretary till
August 11, 1953, wrote the secretary of the corporation asking him to request the remaining
stockholders to grant additional time to respondents to pay for their stock. This the secretary
did by writing each other stockholder, conveying verbatim the said request. One stockholder,
Katze, did accede, the others all refused. In such written requests for extension, de Sollano
and Berriozabal each wrote that if the other stockholders did not so consent, such other
stockholders could subscribe for the portion available to such other stockholders pro rata in
accordance with their rights. These letters were written after consultation with their own
counsel who drafted a form of letter for them to write, for which, however, they substituted
their own form.
(5) Respondents next refer to the findings to the effect that none of the stockholders
subscribed to or paid for their respective shares in the manner and within the time specified
in the amendment, but received their certificates with knowledge that they were issued and
delivered "in violation of and contrary to the terms and provisions" of said amendment.
delivered in violation of and contrary to the terms and provisions of said amendment.
Respondents then attempt to support these findings by the same contentions which we have
rejected. Respondents then urge that, even if the entire issue of 10,000 shares was not void, it
was at least voidable and became void as to the 3,600 shares to which respondents were
entitled to subscribe and to which appellants eventually themselves subscribed as above
stated. Under the circumstances recited and conclusions which we have above reached, we
find no merit in this contention.
(6) The trial court found that respondents desired to and were ready, willing, and able to
pay for their proportions of the new stock in accordance with the terms and provisions of the
amendment. Respondents attempt to support this finding by reason of the phrase quoted.
This, however, leads us back to the questions already disposed of. The so-called finding of
fact depends entirely upon the conclusion of law which we have found to be erroneous.
(7) Respondents contend that under the circumstances recited, there could be no waiver by
them (1) because they had no knowledge of their legal rights, that is, of the fact that they were
not bound by the assertedly invalid requirements in connection with subscription and
payment for the stock, and (2) because there can be no waiver without an intention to waive,
and that respondents at no time had any intention to waive their rights. As to the first reason,
we have shown that there was no violation of their legal rights. We now dispose of their
second ground.
[Headnote 4]
(8) We have referred repeatedly to the fact that the amendments to the articles of
incorporation were accomplished by unanimous vote of all stockholders at meeting in which
all of the corporate stock was represented. Other meetings and other correspondence in the
record show that respondents were completely cognizant of the purpose, extent and legal
effect of the amendments and of the resolutions authorizing them. To all of this they were
parties. Together with all other stockholders they were given a right to purchase their
proportionate share of the new stock under the conditions provided.
they were given a right to purchase their proportionate share of the new stock under the
conditions provided. Indeed, de Sollano as president signed all the new certificates issued to
appellants. These facts, together with the other facts recited, supply everything necessary to
show appellants' intention to waive. It is clear that respondents permitted their pre-emptive
rights to lapse through their failure to exercise them. Generally, and perhaps properly, this is
discussed under the theory of waiver. But whether the pre-emptive rights are waived by
failure to exercise them in the time and manner required, or whether such rights simply
became lost to them, or whether the rights may be said to have lapsed, or whether they failed
to exist because the conditions under which they might be exercised were not complied with,
the result is the same. Absent any oppression, fraud, violation of trust, prevention of equal
opportunity to exercise the right afforded to all other stockholders, the pre-emptive right to
subscribe is lost by failure to exercise it in the manner required of all stockholders. 11
Fletcher, Cyc., Corporations, Perm. Ed., 312, sec. 5139, and cases therein cited. Such was the
situation here. Pursuant to corporate proceedings in which they acquiesced, they were given
the same right to subscribe to the new stock, and received the same notices reciting the
conditions of such subscription, as all other stockholders. They were given the same
extensions of time for the first two installments. They failed to exercise such rights, but
subsequently attempted to assert the same by attacking the validity of the entire new issue,
basing their entire attack upon the discrepancy (to which they were parties) in the time
allotted for subscription and payment. When they failed to subscribe and pay as required,
other stockholders exercised the right to subscribe for the additional stock, paid the entire
price into the corporate treasury and the money was expended for corporate purposes.
[Headnote 5]
(9) Respondents contend that in any event they each had made a valid subscription. This is
based on the following situation: On September 2, 1953, a directors' meeting was held at
Santa Maria, California, attended by de Sollano and Katze.
meeting was held at Santa Maria, California, attended by de Sollano and Katze. De Sollano at
that time advised Katze that Berriozabal had given him $420 for the exercise of his
pre-emptive right to purchase the number of shares to which he was entitled under article IV,
as amended, but Katze advised that he could not accept the same, as it constituted only a
one-fourth payment and that a one-half payment was required at that time pursuant to the
notice. De Sollano did not have the entire $420 on hand, as part of it had been expended for
air transportation and other expenses. Nor was there offered at the time any subscription by
Berriozabal to his proportionate share of stock or any note or agreement for the payment of
the balance. De Sollano also stated that he desired to subscribe and to make his down
payment of 25 percent. Neither de Sollano nor Berriozabal at any time signed a subscription
for any part of the new stock issue or any agreement to pay for same or any note evidencing
the purchase price of any part thereof. De Sollano also contended that the corporation was
indebted to him in sums exceeding the amount necessary for his pre-emptive payments. This,
however, entirely failed of proof. It is apparent that under the amendment to article IV and
under the July 6 notice requiring subscription and payment within ten days, of the first two
installments, the incident of September 2, 1953, fell far short of a compliance.
(10) Berriozabal contends that even though de Sollano's rights may have been concluded
by reason of the matters discussed, Berriozabal was not likewise affected. On all material
points, however, Berriozabal's position is the same as that of de Sollano.
(11) Other matters contained in the lengthy briefs do not require further discussion.
We conclude that the amendment of article IV of the articles was valid; that respondents
de Sollano and Berriozabal failed to exercise their pre-emptive rights to subscribe and pay for
their share of the additional stock authorized; that the appellants did exercise their respective
pre-emptive rights and subscribed to and paid for the share so pre-empted, and that their
respective certificates were properly and validly issued to them; that the said stock so
issued was validly voted by them in the election of directors; that the contrary findings
and conclusions of the trial court and its judgment based thereon must be reversed.
the share so pre-empted, and that their respective certificates were properly and validly issued
to them; that the said stock so issued was validly voted by them in the election of directors;
that the contrary findings and conclusions of the trial court and its judgment based thereon
must be reversed.
Collis E. Dore and Warren J. Roussel, named herein as respondents, do not appear to be
involved in this appeal.
Reversed with costs and remanded with instructions for the entry of findings, conclusions
and judgment in accordance with this opinion.
____________
On Petition for Rehearing
April 28, 1959 338 P.2d 74
On petition filed by one of defendant stockholders for rehearing, the Supreme Court held
that evidence was insufficient to support claim of such stockholder that corporation was
indebted to him in sum exceeding amount necessary for his pre-emptive payments.
Rehearing denied.
Declaratory Judgment.
In proceeding for a declaratory judgment with respect to purchase of additional issue of
corporate stock in exercise of original pre-emptive rights by original stockholders,
evidence was insufficient to support claim of one of defendant stockholders that
corporation was indebted to him in sum exceeding amount necessary for his pre-emptive
payments.
OPINION
Per Curiam:
Respondents have filed a petition for rehearing upon this appeal. In our view rehearing is
not warranted.
One ground, however, would seem to warrant comment.
In disposing of the contention of respondent de Sollano that he had in any event made a
valid subscription to the stock, we stated in our original opinion: De Sollano also contended
that the corporation was indebted to him in sums exceeding the amount necessary for his
pre-emptive payments. This, however, entirely failed of proof. The petition for rehearing
takes issue with this statement and refers to various places in the record indicating that the
corporation was indebted to de Sollano and had indeed actually, at a later date, made
payments to him on account of such indebtedness. Perhaps our statement of there being an
entire failure of proof was too cryptic.
The true issue upon this point was not whether the corporation was then actually indebted
to de Sollano in some unliquidated amount for past services and miscellaneous advances.
Rather, it was whether an indebtedness then existed which de Sollano as a matter of right
could apply against the amount necessary for pre-emptive payments. A further study of the
record in the light of the petition reinforces our view that there was a complete failure of
proof that such an indebtedness existed.
Rehearing denied.
____________
75 Nev. 168, 168 (1959) Ray v. Barringer
IDA ANGELOT RAY, CARL REED, and RALPH STEINER, as Trustees of the Estate of
CARL RAY, Deceased, Appellants, v. ROBERT E. BARRINGER, Respondent.
NO. 4124
March 16, 1959 336 P.2d 772
Department No. 2.
Action by trustees under will wherein they stated that they had received distribution of
trust corpus and that by virtue of certain complicating circumstances were uncertain as to
manner in which trust should be executed and sought a judicial declaration as to rights
and interests of various defendants to such trust estate wherein one of defendants, who
had successfully asserted a right to share as pretermitted child of decedent, disclaimed
any interest in the trust estate.
by virtue of certain complicating circumstances were uncertain as to manner in which trust
should be executed and sought a judicial declaration as to rights and interests of various
defendants to such trust estate wherein one of defendants, who had successfully asserted a
right to share as pretermitted child of decedent, disclaimed any interest in the trust estate.
From a judgment of the lower court dismissing the action as to such defendant, the plaintiffs
appealed. The Supreme Court, Per Curiam, held that in view of such showing the action was
properly dismissed as to such defendant.
Judgment affirmed.
Harry E. Claiborne, of Las Vegas, for Appellants.
Hawkins and Cannon, of Las Vegas, for Respondent.
Dismissal and Nonsuit.
Where complaint by trustees under will stated that they had received distribution of trust corpus and that
by virtue of certain complicating circumstances were uncertain as to manner in which trust should be
executed and sought a judicial declaration as to right and interest of various defendants to trust estate, and
one of defendants, who had successfully asserted a right to share as pretermitted child of decedent,
disclaimed any interest in trust estate, action was properly dismissed as to such defendant.
OPINION
Per Curiam:
The court below dismissed this action against respondent Barringer (one of three
defendants) upon the ground that the complaint failed to state a claim against him. The
plaintiffs below have taken this appeal from that dismissal.
Appellants are the trustees under the last will of Carl Ray, deceased. Their complaint states
that they have received distribution of the trust corpus and that by virtue of certain
complicating circumstances are uncertain as to the manner in which the trust should be
executed. They seek a judicial declaration as to the rights and interests of the various
defendants in and to the trust estate."
rights and interests of the various defendants in and to the trust estate. Defendant Barringer
disclaims any interest in the trust estate.
Upon this showing the order dismissing the action against Barringer quite properly was
entered. Since he makes no claim, no controversy with him can be said to exist.
In the administration of the estate before the probate court Barringer successfully asserted
a right to share as pretermitted child of the decedent. In Re Ray's Estate, 69 Nevada 204, 245
P.2d 990. He has since received distribution of a one-third interest in the estate. He makes no
claim to any of the trust estate, his only interest being in retaining what has already been
distributed to him.
Appellants now appear to contend that, due to events occurring subsequent to distribution,
Barringer should not be permitted to retain in full what has been distributed to him. Such a
dispute clearly is not the subject of the complaint in this action.
Affirmed.
____________
75 Nev. 170, 170 (1959) Desert Plaza Apts. v. Freeman
DESERT PLAZA APTS., INC., a Nevada Corporation, Appellant, v. JACK FREEMAN,
Doing Business as JACK FREEMAN FLOOR COVERINGS, Respondent.
No. 4125
March 16, 1959 336 P.2d 771
Appeal from Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Action to foreclose a lien for carpeting. From an adverse judgment in the lower court the
defendant appeals. The Supreme Court, Per Curiam, held that an allowance of attorney's fees
of $100 was not an abuse of discretion, and that granting plaintiff's motion to dismiss and
denying defendant's motion for directed verdict was not an abuse of discretion.
discretion, and that granting plaintiff's motion to dismiss and denying defendant's motion for
directed verdict was not an abuse of discretion.
Affirmed.
Cornwall and Sullivan, of Las Vegas, for Appellant.
Goldwater and Singleton, of Las Vegas, for Respondent.
1. Dismissal and Nonsuit.
In action to foreclose a lien for carpeting for less than $1,500 where pretrial conferences disclosed that
plaintiff was not entitled to sue the defendant and the court granted plaintiff's motion to dismiss and
awarded defendant attorney's fees for $100 and costs and no damages were asserted by the defendant
because of the lien, evidence did not establish an abuse of discretion in allowance of the fees. NRCP
41(a)(2).
2. Trial.
In action to foreclose a lien for carpeting where pretrial conference disclosed that plaintiff was not
entitled to sue the defendant and there was no counterclaim, granting plaintiff's motion to dismiss and
denying defendant's motion for directed verdict was not an abuse of discretion.
OPINION
Per Curiam:
In the court below respondent brought action against appellant to foreclose a lien for
carpeting. Appellant denied the material allegations of the complaint and prayed that plaintiff
take nothing and that defendant have its costs of suit, with a reasonable attorney's fee. Pretrial
conferences were had at which appellant contended that the carpeting had been furnished by
respondent to one Fish, who thereafter sold it to defendant and received payment in full.
Respondent thereafter moved for a dismissal of his action under NRCP Rule 41(a)(2), and
defendant moved for a directed verdict. No jury had been called and there had been no trial
of the issues before the court. The defendant had filed no counterclaim. The court granted
plaintiff's motion to dismiss, denied defendant's motion and in its final order recited: "* * *
and having awarded to the attorneys for the defendant Desert Plaza Apts.,
denied defendant's motion and in its final order recited: * * * and having awarded to the
attorneys for the defendant Desert Plaza Apts., Inc. the sum of $100.00 as and for attorney
fees, and the sum of [$8.40 costs], and counsel for defendant * * * having stated to the court
that he would rather not have any attorney fees than the sum of only $100.00 * * * and, in the
opinion of the court thereby having waived his right to counsel fees, the court deleted that
portion of the Order pertaining to attorney fees * * *.
Thereafter defendant filed a satisfaction of judgment, acknowledging receipt of $8.40 in
full satisfaction, and authorized and directed the clerk to enter satisfaction of record of said
judgment.
[Headnotes 1, 2]
In assigning error in this order, it appears to be appellant's contention that as plaintiff had
commenced an action in which he could not prevail and had subjected defendant's property to
the burden of a lien, he should have been penalized by the exaction of a greater attorney fee.
No damage was asserted by the defendant growing out of the subjection of his property to a
lien for a period of months. The lien claim was for less than $1,500. The record shows that
the court was fully apprised of the nature and extent of the services of defendant's attorneys,
and the allowance of fees lay in its sound discretion, of which we can find no abuse. The
waiver of the attorney fee and the satisfaction of judgment followed. As there was no error in
granting plaintiff's motion, there was likewise no error in denying defendant's motion.
____________
75 Nev. 173, 173 (1959) Sims v. Grubb
JOHN SIMS, Appellant, v.
MARGIE GRUBB, Respondent.
No. 4114
March 17, 1959 336 P.2d 759
Appeal from judgment of Eighth Judicial District Court, Clark County; Ryland G. Taylor,
Action on a promissory note secured by a deed of trust. From a judgment and an order
denying a new trial in the trial court the plaintiff appeals. The Supreme Court, McNamee, J.,
held that evidence of an alleged preliminary agreement by plaintiff to do certain work on the
premises and that by reason of the failure to perform the agreement, the note was allegedly
without consideration and void, was inadmissible.
Reversed and remanded.
Toy R. Gregory, of Las Vegas, for Appellant.
Howard W. Cannon, Ralston O. Hawkins and Thomas J. O'Donnell, of Las Vegas, for
Respondent.
1. Evidence.
In action on a note secured by a deed of trust where there was also written instructions wherein the nature
of the consideration for the note was expressly set forth and it was not contended that there was any failure
of consideration so expressed, evidence of an alleged preliminary agreement by plaintiff to do certain work
on the premises and that by reason of the failure to perform the agreement the note was allegedly without
consideration and void was inadmissible.
2. Evidence.
Where parties reduce their contract to writing, all oral negotiations and agreements are merged in the
writing and parol proof is not admissible to alter its terms or to show that instead of being absolute it was in
reality conditional, unless the party attacking the instrument can establish fraud or mistake in its execution.
3. Mortgages.
The foreclosure of a first mortgage does not extinguish the liability of the maker of the second mortgage
note upon loss of the mortgage security through foreclosure of the first mortgage.
75 Nev. 173, 174 (1959) Sims v. Grubb
4. Mortgages.
In suit on a note secured by a second deed of trust where the respondent failed to pay the obligation under
the first trust deed and thus caused the sale of the premises, sale under the first trust deed did not discharge
the second trust deed so as to release defendant from her liability on the note.
5. Mortgages.
In suit on a note secured by a second deed of trust where the written agreement of the parties together
with performance thereunder and default of the respondent were proven without contradiction, there was no
controversial fact for the jury and plaintiff's motion for directed verdict should have been granted.
OPINION
This is an appeal from a judgment and an order denying a new trial.
Appellant agreed to sell to respondent, and respondent agreed to buy from appellant a
house and lot for the sum of $9,000 payable as follows: $200 cash, assumption by the buyer
of a prior note and deed of trust covering the premises, upon which there was an unpaid
balance of $2,100.96, and a promissory note for the balance in the sum of $6,699.04 secured
by a second deed of trust. The agreement was evidenced by a document entitled Escrow
Instructions signed by both parties. Appearing above the buyer's signature are the words: I
have read over the foregoing instructions and agree to buy the property described on the terms
and conditions herein set forth * * *.
It was also provided in the escrow instructions that the seller would give the buyer a bill of
sale to a portable heater that was in the house.
Pursuant to said agreement the appellant delivered to the respondent possession of the
premises, a deed thereto, and the bill of sale, and she in turn delivered to the appellant the
$200 and the note for $6,699.04 together with the deed of trust securing the same, and
specified in this latter instrument that she would assume the payment of the prior obligation
against the premises.
75 Nev. 173, 175 (1959) Sims v. Grubb
ises. In other words, the contract was fully performed. After making two payments on the
note secured by said first deed of trust, respondent defaulted in the third payment. The holder
then caused notice of default to be given, the property was sold at public auction and the
appellant became the buyer thereof for the sum of $2,500. Appellant acquired possession of
the property and then this suit against respondent followed for the balance then due on the
$6,699.04 note. Respondent had held possession of the property approximately ten months.
The controversy chiefly concerns the third defense in respondent's answer wherein she
alleges that plaintiff agreed to sell, and defendant agreed to purchase the property * * * and
in connection with said purchase, defendant executed Exhibits A and B (note for $6,699.04
and deed of trust securing same). That at the same time plaintiff stated and represented to
defendant that he would remodel the carport on the premises into a storeroom; that he would
re-plaster the outside of the building; and that he would hang several doors throughout the
interior of the premises. That because of said representations made by plaintiff to defendant,
defendant executed the promissory note sued on and would not have otherwise. That plaintiff
never did commence the work he agreed to do although requested by defendant to do so and
by reason thereof the said promissory note was obtained from defendant by the fraud and
false representations of the plaintiff, and is without consideration and void.
Evidence of such a preliminary agreement was received over the objection of the appellant
that the same was in violation of the parol evidence rule. The appellant thereafter testified
that no such preliminary agreement was ever made. Appellant's motion for a directed verdict
was denied and the court instructed the jury to consider this evidence and if it found such an
agreement was made and not performed by the appellant, and that as a result of such failure
the defendant did not receive any consideration for the note, you will find in favor of the
defendant and against the plaintiff."
75 Nev. 173, 176 (1959) Sims v. Grubb
you will find in favor of the defendant and against the plaintiff. The jury thereupon brought
in a verdict for the defendant.
[Headnote 1]
It is apparent from the record that the trial court in admitting oral evidence of a preliminary
agreement was influenced by the decision of this court in the case of Dixon v. Miller, 43 Nev.
280, 184 P. 926, 1927. In that case suit was upon a promissory note and the oral evidence was
received not to vary the terms of a written instrument but merely to impeach the fact that
there had been any consideration. The real consideration for a promissory note is never
apparent from its face. No conclusive presumption arises from the words for value received,'
and when a note is challenged for want of consideration the fact must be learned from
extrinsic evidence which relates to the point of time when the note was executed and
discloses the dealings between the parties.
The situation here is entirely different. In this case there was more than a mere note
executed by the respondent. There was also a written agreement (escrow instructions) where
the nature of the consideration for the note was expressly set forth. It is not contended that
there was any failure of consideration so expressed, the respondent receiving not only the
deed and bill of sale but also possession of the property for approximately ten months. She
can no more contradict or vary the terms of that written agreement by oral testimony of other
and additional consideration promised for the note than could the appellant have shown by
parol evidence that respondent had agreed to pay him a greater sum for the property than that
expressed in the written agreement.
The court erred in admitting such evidence of an oral agreement as its sole purpose was to
vary the terms of the written contract of the parties.
[Headnote 2]
When parties reduce their contract to writing, all oral negotiations and agreements are
merged in the writing, and the instrument must be treated as containing the whole
contract, and parol proof is not admissible to alter its terms, or to show that instead of
being absolute, as it purports to be, it was in reality conditional, unless the party
attacking the instrument can establish fraud or mistake in its execution."
75 Nev. 173, 177 (1959) Sims v. Grubb
oral negotiations and agreements are merged in the writing, and the instrument must be
treated as containing the whole contract, and parol proof is not admissible to alter its terms, or
to show that instead of being absolute, as it purports to be, it was in reality conditional, unless
the party attacking the instrument can establish fraud or mistake in its execution. Gage v.
Phillips, 21 Nev. 150, 26 P. 60, 61.
In Peschong v. Madden, 101 Cal.App. 632, 281 P. 1068, the court held that the escrow
instructions constituted the entire contract between the parties, and measured their rights and
obligations, and oral testimony was improperly received which tended to add to and modify
the contract.
It was held in Tufford v. Gordon, 217 Mich. 658, 187 N.W. 264, that, in a suit by the
vendor for specific performance, brought against the vendee, it would be conclusively
presumed that the entire agreement merged in and became a part of the written contract, and
that the same could not be varied or changed by parol testimony as to an oral agreement by
the vendor to make certain repairs on the building, which it was contended he had neglected
or refused to make. The court said that to permit the agreement executed by the parties to be
affected by the claimed oral promise to make the repairs would be to vary and contradict the
terms of the contract, since the oral agreement would change and lessen the consideration
stipulated for in the writing. It was held that the oral agreement could not be shown on the
theory that it was a collateral one, since only collateral contracts not contradicting or varying
the written provisions of the contract may be shown.
To the same effect: Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646, 68 A.L.R. 239; Cady v.
Lyman, 198 Iowa 661, 200 N.W. 190.
That the parties intended the written agreement to contain their entire engagements is
apparent from respondent's express statement as aforesaid that she agreed to buy the property
on the terms and conditions therein set forth, and there is no evidence in the record to
substantiate any claim of fraud on the part of the appellant.
75 Nev. 173, 178 (1959) Sims v. Grubb
to substantiate any claim of fraud on the part of the appellant.
Respondent contends that inasmuch as the sale under the first trust deed discharged the
second trust deed, her liability on the note it secured likewise was discharged. It was no fault
of the appellant that the security for his note was lost. The fault is rather with the respondent
for failing to pay the obligation under the first trust deed and thus causing the sale.
[Headnotes 3, 4]
The following authorities hold that foreclosure of the first mortgage does not extinguish
the liability of the maker of the second mortgage note upon loss of the mortgage security
through the foreclosure of the first mortgage. Blackwood v. Sakwinski, 221 Mich. 464, 191
N.W. 207, 29 A.L.R. 1314; Neild v. Woodruff, 152 Misc. 390, 273 N.Y.S. 528; Sautter v.
Frick, 229 App.Div. 345, 242 N.Y.S. 369; Weisel v. Hagdahl Realty Co., 241 App.Div. 314,
271 N.Y.S. 629; Peterson v. Abbe, 234 Mass. 467, 125 N.E. 611; 2 Wiltsie, Mortgage
Foreclosure (4th Ed.) sec. 1038; 59 C.J.S. Mortgages, sec. 523, n. 20, sec. 704, n. 68.
A deed of trust executed as security, conditioned to be void on payment of the debt, and
containing a power of sale on default, is essentially a mortgage, and does not differ, in its
legal operation and effect, from an ordinary mortgage with power of sale * * *. 59 C.J.S.
Mortgages, sec. 6.
[Headnote 5]
The written agreement of the parties consisting of the escrow instructions, the note, and
the deed of trust, together with performance thereunder and the default of respondent having
been proven without contradiction, there was no controversial fact which properly could go to
the jury; consequently, appellant's motion for a directed verdict should have been granted.
Reversed and remanded with instructions that judgment be rendered in favor of appellant
in the sum of $6,612.2S with interest thereon at the rate of six percent from March 5,
1957 together with such sum as the district court may fix as attorney fees.
75 Nev. 173, 179 (1959) Sims v. Grubb
$6,612.28 with interest thereon at the rate of six percent from March 5, 1957 together with
such sum as the district court may fix as attorney fees.
Merrill, C. J. and Badt, J. concur.
____________
75 Nev. 179, 179 (1959) Scott v. Cord
A. P. SCOTT, Appellant, v.
E. L. CORD, Respondent.
No. 4123
March 20, 1959 336 P.2d 773
Appeal from Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Action to recover on notes executed by a corporation wherein the corporation's interest in
land scrip and in stock of other corporations was pledged as security. Other parties intervened
and filed a counterclaim. From a judgment of the lower court intervenor appeals. The
Supreme Court, McNamee, J., held that directors did not act improperly at meetings
authorizing the execution of the notes by failing to give actual notice of such meeting to an
absent director; that corporate resolution authorized a pledge of the corporate assets, and the
insertion of a provision for attorney's fees for enforcing the notes.
Affirmed.
John P. Thatcher, of Reno, for Appellant.
William J. Cashill and Robert Leland, of Reno, for Respondent.
1. Corporations.
A corporation had power to authorize the issuance of notes reciting that all of the corporation's interest in
any land scrip and in any stock of other corporations was placed as security for the payment thereof.
75 Nev. 179, 180 (1959) Scott v. Cord
2. Corporations.
Notes executed by a corporation and secured by corporation's interest in any land scrip and in stock of
other corporations pledged as security for the payment thereof were not invalid on the ground that the
directors at the meetings which authorized the execution of the notes failed to give actual notice of such
meetings to absent director, where at every meeting of the directors only two of the three directors had been
present and no objection was made to the procedure by any stockholders or directors until after
commencement of the action on the notes.
3. Corporations.
Although directors act as a board and regularity called meetings of the corporations, those they represent
may be estopped to question the authority of their officers when acting less formally if there has been a
custom or usage to act more informally.
4. Corporations.
Where it was agreed between all stockholders that party advancing money on notes executed by
corporation was to have a prior claim to the corporate assets for his advances and such fact was known to
the secretary of the corporation and resolution empowered him to execute the evidences of the
indebtedness in such form as he should approve it was proper for the secretary to insert in the notes any
terms which expressed such agreement and a second resolution expressly providing for the pledge of
corporate assets was authorized.
5. Corporations.
Where corporate resolution provided that the secretary was authorized to secure loans as might be
necessary and required from time to time and upon such conditions as he should approve and resolution
authorized corporate note be in the usual form, officers were empowered to insert in the notes a provision
for attorney's fees in enforcing notes executed by the corporation.
6. Corporations.
In action on notes executed by corporation wherein corporation's interest in any land scrip and stock of
other corporations was pledged as security, evidence failed to establish that the directors in authorizing
execution of the notes were subject to the plaintiff's domination and control as officers and directors of a
corporation.
7. Judgment.
Denying a motion to vacate and set aside a judgment against defendant because of mistake, inadvertence
and excusable neglect in failing to plead the statute of limitations as a defense was a proper exercise of
discretion. NRCP 60(b).
75 Nev. 179, 181 (1959) Scott v. Cord
OPINION
In the court below respondent Cord sued Bedford Wilshire Company, a Nevada
corporation, on three promissory notes executed by the corporation to him, one dated
February 28, 1950 in the sum of $150,000, one dated September 20, 1950 in the sum of
$145,000, and one dated January 31, 1952 in the sum of $44,000. Each note recited that all of
the corporation's interest in any land scrip and in any stock of other corporations was pledged
as security for payment of the same. The prayer of the complaint asks for a sale of certain of
the pledged assets with the proceeds therefrom to be applied toward payment of said notes.
Appellant Scott and one Maggart intervened as interested stockholders claiming that the
meetings of the corporation's board of directors which authorized the execution of said notes
were illegal, because only two of the three directors were present, the third director, John P.
Thatcher, not having had any notice of said meetings. Scott further contends that even if the
resolution passed at the meeting held December 5, 1949 was valid and would authorize the
execution of the first two notes, it was legally insufficient to give the officers the power to
pledge any corporate assets as security.
Scott further alleges that although he, Cord, and Maggart agreed among themselves that
they would use their joint efforts to acquire additional land scrip for the benefit of all, that
Cord acquired in his own name scrip representing land in excess of 3,300 acres.
We are not concerned with Maggart's complaint in intervention because his appeal herein
was dismissed on stipulation.
For simplicity we shall hereafter refer to respondent Cord as Cord, Bedford Wilshire
Company as the corporation, and appellant Scott as Scott.
Cord in answering Scott's complaint in intervention counterclaimed for the sum of
$16,250, being one-half of the face value of two notes executed by Maggart and payable to
Cord and Scott, alleging that he had advanced to Maggart $32,500 for the two notes on
the promise by Scott that if the loan were made and if Scott were named as one of the
payees in the notes given therefor, he {Scott) would reimburse Cord one-half of said face
value.
75 Nev. 179, 182 (1959) Scott v. Cord
payable to Cord and Scott, alleging that he had advanced to Maggart $32,500 for the two
notes on the promise by Scott that if the loan were made and if Scott were named as one of
the payees in the notes given therefor, he (Scott) would reimburse Cord one-half of said face
value. It is further alleged that Maggart owes Cord and Scott the amount of said notes.
A pre-trial order approved by the interested parties determined the following facts:
In 1948 Maggart for a cash consideration transferred to Cord and Scott a 55 percent
interest in certain land scrip and land scrip enterprises of which Maggart was sole or part
owner. Thereafter on December 10, 1948 Cord, Scott, and Maggart entered into an agreement
by which Cord and Scott were to transfer said 55 percent interest to Bedford Wilshire
Company and Maggart was to transfer the 45 percent interest retained by him to said
company with the understanding that 55 percent of the company's stock should issue to Cord
and Scott and 45 percent to Maggart.
John P. Thatcher, Edward D. Neuhoff, and James P. Brice were elected directors of the
corporation and in consideration of the transfer to the corporation of the scrip interests, the
corporation issued to Cord 27,500 shares, to Scott 27,500 shares, and to Maggart 45,000
shares of its capital stock. Later Cord and Scott transferred their shares of stock to the First
National Bank of Nevada as voting trustee, under a written agreement whereby neither could
vote the stock unless both were in agreement.
The meetings of the board of directors authorizing the borrowing of the money and the
execution of the said notes and the pledge of assets were held pursuant to the provisions of
article II, section 6 of the bylaws
1
, and in accordance therewith, director Thatcher was not
informed of the place or time of the holding of said meetings other than the constructive
notice furnished by the bylaws.
____________________

1
Section 6. Regular Meetings.Regular meetings of the Board of Directors may be held without notice on
any day at 10:00 o'clock a.m., except Sundays and holidays, at the office of the corporation in the City of Reno,
State of Nevada, or at such other places and times as the directors shall determine, from time to time, by
resolution, or as they might properly designate.
75 Nev. 179, 183 (1959) Scott v. Cord
meetings other than the constructive notice furnished by the bylaws. Thatcher was not present
at said meetings, he did not waive notice thereof, nor did he demand any notice of such
meetings.
The court found from the evidence that the situation leading up to the execution of the
three notes was as follows:
1. Cord advanced to the corporation at least the sum of $339,000.
2. All of the stockholders were in agreement that Cord should have first claim on the
corporation's assets for any such advances.
3. The corporation accepted the benefits of such advances.
4. The corporate acts in authorizing the execution of the notes were actually within the
knowledge and were with the consent of all the stockholders including appellant Scott.
5. All of the stockholders gave implied authority to a quorum of the board of directors (i.
e., two directors) meeting in accordance with the said provisions of the bylaws relating to
regular directors' meetings to perform corporate acts without actual notice to the third director
of the time and place of such meetings.
From the stipulated facts and the evidence presented the trial court determined that the
various agreements entered into by and between Cord, Scott, and Maggart were not intended
to nor did they create the relationship of a joint venture, but rather a corporate relationship.
With such fact established as its premise, the lower court then found that there was an
agreement among Cord, Scott, and Maggart, being all of the stockholders of the corporation,
that Cord was to have secured promissory notes for his advances, that such advances were
made, that pursuant to such agreement of the stockholders the board of directors authorized
the issuance of secured promissory notes to Cord for such advances, at regular meetings duly
held, and that both the corporation and Scott were estopped from denying the validity of the
notes and pledges. The court further found that the acquisition by Cord of scrip in his own
name was a transaction personal to him, said scrip having been purchased by him for his
own account.
75 Nev. 179, 184 (1959) Scott v. Cord
name was a transaction personal to him, said scrip having been purchased by him for his own
account.
With respect to Cord's said counterclaim against Scott, the court found that the allegations
of the counterclaim were true and that Scott was indebted to Cord in the sum of $16,250
thereunder.
The trial court thereupon entered judgment in favor of Cord and against the corporation in
the sum of $339,000 plus attorney fees in the sum of $30,000, and ordered foreclosure of the
pledged assets
2
. Judgment was also entered in favor of Cord against Scott for $16,250 on
said counterclaim.
As to controverted factual matters there was competent evidence to sustain the trial court's
findings and with respect to the same we will not concern ourselves.
There remain, however, certain questions of law requiring determination.
[Headnotes 1, 2]
That the corporation had power to authorize the issuance of the notes in the form as
executed is not denied. It is appellant's contention, however, that the validity of the notes
depends solely upon proper corporate procedure, and that the directors at the two meetings
which authorized the execution of the notes acted improperly by failing to give actual notice
of such meetings to director Thatcher.
The evidence reveals that at every meeting of the board of directors only two of the three
directors had been present, that the minutes in each instance are silent as to actual notice to
the absent director, and that this situation existed at the meeting of September 19, 1951, held
after the alleged illegal meeting where the first two promissory notes to Cord were
authorized, when directors Thatcher and Neuhoff were present, with Thatcher acting as
chairman thereof, and at which director Brice was absent. No objection to this procedure was
ever made by any of the stockholders or directors until after the commencement of this
action, although such procedure was known to and carried on with the implied consent of all
of the directors and stockholders.
____________________

2
Counsel for appellant stated in his oral argument that said assets were sold for $2,500 at the foreclosure sale.
75 Nev. 179, 185 (1959) Scott v. Cord
implied consent of all of the directors and stockholders.
Under such circumstances neither the corporation nor the stockholders will be permitted to
attack the validity of the directors' meetings. Substantial authority supports this conclusion.
[Headnote 3]
* * * although directors or trustees act as a board at regularly called meetings of the
corporation, those they represent may be estopped to question the authority of their officers
when acting less formally, if there has been a custom or usage to act more informally (citing
cases). Superior Portland Cement v. Pacific Coast Cement Co., 33 Wash.2d 169, 205 P.2d
597, 621, rehearing denied.
In National Bank of Commerce of Seattle v. Puget Sound Biscuit Co., 61 Wash. 192, 112
P. 265, the court held that while corporate directors generally act as a board at regularly called
meetings of the corporation, those they represent may be estopped to question the authority of
their officers when acting less formally, if there has been a custom or usage to act more
informally.
The necessity for directors to act as a board and at a meeting is based upon the ground
that they are not authorized to act in any other way than by meeting and conferring, and not
on the ground they that cannot act in any other way; and the stockholders and the corporation,
therefore, may be estopped to deny the validity of their action. 2 Fletcher, Cyc. Corp. (Perm.
Ed.), sec. 394.
In Sharon Herald Co. v. Granger, 97 F.Supp. 295, 301 (W. D. Penn.), the court said: The
doctrine of permitting close corporations to act informally is recognized as an exception to
the general rule that directors must act as a board at duly convened meetings. The exception is
founded upon principles of equitable estoppel and is limited to instances in which the custom
or usage of the directors is to act separately or informally and not as a board.
In Simonson v. Helburn, 198 Misc. 430, 97 N.Y.S.2d 406, 413, where the corporate
bylaws provided that no play could be produced unless approved by a majority of the board,
and two of the three directors informally approved a play, the court said "* * * it has long
been recognized in New York that the directors of a close corporation, when few in
number, and in frequent contact with each other may act effectively without going
through the useless formality of convening as a board."
75 Nev. 179, 186 (1959) Scott v. Cord
the board, and two of the three directors informally approved a play, the court said * * * it
has long been recognized in New York that the directors of a close corporation, when few in
number, and in frequent contact with each other may act effectively without going through
the useless formality of convening as a board.
Having concluded that neither the corporation nor Scott can attack the validity of the board
meetings which purported to authorize the issuance of the three notes to Cord, we now
consider Scott's contention that even if such proceedings were valid, the act of the officers in
executing the particular notes exceeded the authority expressed in the resolutions.
At the meeting held on December 5, 1949, upon which is based the authority for the
execution of the first two notes, the following resolution was adopted:
Be It Resolved that the Secretary of the corporation, be and he is hereby authorized and
empowered to secure loans as may be necessary and required from time to time and upon
such terms and conditions as he shall approve, and that the evidence of any such indebtedness
or loans be signed by the President and Secretary of the corporation from time to time as may
be necessary and required upon such terms and conditions and in such form as shall be first
approved by the Secretary of the corporation.
The authority to execute the third note was based on the following resolution adopted at
the meeting held January 30, 1952:
Be It Resolved that this corporation make, execute, and deliver to E. L. Cord a demand
promissory note in the amount of Forty-Four Thousand Dollars ($44,000.00), to cover money
loaned to the corporation, said note to be in the usual form, and as collateral security therefor
that the corporation pledge all of its interest in any land scrip or certificates owned directly or
indirectly, and all corporate stocks owned by the company and other corporations; and
Be It Further Resolved that the President and Secretary of this corporation either acting
jointly or severally, be and they are hereby authorized to execute and deliver said note."
75 Nev. 179, 187 (1959) Scott v. Cord
Secretary of this corporation either acting jointly or severally, be and they are hereby
authorized to execute and deliver said note.
[Headnote 4]
Whether these resolutions would be broad enough in the absence of any agreement among
all the stockholders, to authorize the officers to pledge all of the assets of the corporation as
security for such loans, we do not have to decide. Under the facts of this case as found by the
trial court, it had been agreed by and between all of the stockholders that Cord was to have a
prior claim to the corporate assets for his advances, and such fact was known to Neuhoff, the
secretary. The first resolution empowered him to execute the evidences of indebtedness in
such form as he should approve. With his knowledge of this agreement of the stockholders it
was proper for him under the circumstances to insert in the notes any terms which expressed
such agreement. The second resolution expressly provides for the pledge of the corporate
assets.
[Headnote 5]
But even so appellant contends that under neither resolution were the officers empowered
to insert in any of the notes a provision for attorney fees, and consequently the allowance of
$30,000 attorney fees was error.
In the case of Defanti v. Allen Clark Co., 45 Nev. 120, 198 P. 549, this court held that the
terms of a resolution authorizing a mortgage should be as broad as the mortgage itself and
that when the resolution is silent as to attorney fees, a provision for attorney fees in the note
and mortgage executed pursuant to such a resolution is invalid.
Because of the nature of the resolutions in the present case, (the resolution of December 5,
1949 providing that the secretary of the corporation be and he is hereby authorized and
empowered to secure loans as may be necessary and required from time to time and upon
such terms and conditions as he shall approve, and the resolution of January 30, 1952
authorizing the note "to be in the usual form 3") we are not inclined to apply the rule so
expressed in the Defanti case, supra, to a situation where the authority to provide for
attorney fees can be implied from the particular wording of a resolution.
75 Nev. 179, 188 (1959) Scott v. Cord
note to be in the usual form
3
) we are not inclined to apply the rule so expressed in the
Defanti case, supra, to a situation where the authority to provide for attorney fees can be
implied from the particular wording of a resolution.
The reasonableness of the allowance is not questioned, because the parties had stipulated
that the court could determine what would be reasonable as attorney fees.
The other issues raised by appellant require brief comment.
[Headnote 6]
It was stipulated that director Dunn (successor to director Brice), director Neuhoff, and
director Brice, in so far as said directors were connected with any of the transactions involved
in this litigation, were related to Cord as follows: Dunn was an employee of Cord, Neuhoff
was an attorney at law on retainer from Cord, and Brice was an attorney at law employed by
Neuhoff in connection with various scrip matters. The evidence, however, fails to show that
said directors were subject to Cord's domination and control as officers and directors of the
corporation. At any rate there is nothing in the record to convince us to the contrary. Their
actions and resolutions of which Scott now complains were effected pursuant to the
agreement of all the stockholders as found by the trial court.
[Headnote 7]
Scott has assigned as error the action of the trial court in denying his motion to vacate and
set aside the judgment against him in the sum of $16,250. This motion was based on the
grounds of his mistake, inadvertence, surprise, and excusable neglect, in failing to plead the
statute of limitations as a defense. Evidence was introduced in support of and in opposition to
said motion. The court exercised its discretion in determining from the pleadings and
evidence before it on said motion the law and facts contrary to the contentions of Scott
which it had the power to do under Rule 60{b) NRCP.
____________________

3
It is to be noted that the words usual form very well could mean not only the form customarily used for
promissory notes today which contain provisions for attorney fees, but also the form theretofore used by the
corporation for its said notes of February 28, 1950 and September 20, 1950.
75 Nev. 179, 189 (1959) Scott v. Cord
motion the law and facts contrary to the contentions of Scott which it had the power to do
under Rule 60(b) NRCP. We find no abuse of such discretion.
For the reasons herein stated the judgment in favor of Cord and against the corporation,
the judgment in favor of Cord against Scott, and the order denying Scott's motion for new
trial are affirmed.
____________
75 Nev. 189, 189 (1959) Moore v. Moore
PAUL F. MOORE and MARY COE MOORE, Appellants, v. V. BENDA CHATHAM
MOORE, Respondent.
No. 4126
April 1, 1959 336 P.2d 1073
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Action, brought by woman divorced husband had subsequently married, for judgment
vacating order setting aside divorce decree. The lower court rendered summary judgment for
plaintiff, and defendants appealed. The Supreme Court, Badt, J., held that proceedings,
whether by motion in cause or by independent action, to have divorce decree obtained by
husband set aside on ground of his nonresidence, could be effectively had only by notice to
all parties who would be affected by relief sought; and that woman he had subsequently
married was such a party.
John P. Thatcher, of Reno, for Appellant Paul F. Moore.
Adams, Reed and Bowen, of Reno, for Appellant Mary Coe Moore.
Lloyd V. Smith, of Reno, for Respondent.
75 Nev. 189, 190 (1959) Moore v. Moore
1. Domicile.
Whether husband's temporary absences after coming to Nevada rebutted his testimony of residential
intent was a fact question. NRS 125.020.
2. Divorce.
Proceedings, whether by motion in cause or by independent action, to have divorce decree obtained by
husband set aside on ground of his nonresidence, could be effectively had only by notice to all parties who
would be affected by relief sought; and woman he had subsequently married was such a party. NRCP
60(b).
3. Divorce.
Remarriage of party does not of itself deprive court of power to vacate divorce decree. NRCP 60(b).
4. Costs.
In action brought by woman divorced husband had subsequently married, for judgment vacating order
setting aside divorce decree, there was no authority to allow plaintiff attorney fee.
OPINION
This appeal attacks a summary judgment of the court below, in favor of respondent and
against appellants, which set aside a prior order of that court vacating an earlier divorce
decree granted to Paul F. Moore v. Mary Coe Moore. It is our conclusion that the judgment
from which the appeal is taken must be affirmed. For convenience, the parties will be referred
to by their given names.
Paul obtained a decree of divorce from Mary in the district court of Washoe County on
October 5, 1955, and on the following day married Benda. In 1957 new attorneys were
substituted for both Paul and Mary, and on May 14, 1957, Mary's attorney called the court's
attention to the transcript of the testimony in the divorce action indicating a questionable
residence to support the divorce decree and the court told him that upon the filing of a
satisfactory stipulation, the court would sign an order setting aside the decree.
On June 28, 1957, such stipulation, signed by the new attorneys for Paul and Mary, was
filed, together with respective letters of attorney executed by Paul and Mary in the State of
Massachusetts some days earlier and together with an affidavit executed by Paul in
Massachusetts swearing that his former testimony as to his residential intent was false.
75 Nev. 189, 191 (1959) Moore v. Moore
respective letters of attorney executed by Paul and Mary in the State of Massachusetts some
days earlier and together with an affidavit executed by Paul in Massachusetts swearing that
his former testimony as to his residential intent was false. Thereupon, on June 28, 1957, the
court, without notice to Benda, entered its order vacating the divorce decree. At the time such
order was made, Paul and Benda were still living together as husband and wife in
Massachusetts.
On November 19, 1957, Benda, learning of the entry of the order setting aside the decree
divorcing Mary and Paul, and which in effect nullified Benda's marriage to Paul, filed her
complaint against Paul and Mary, alleging fraud and praying for a judgment vacating the
order setting aside the divorce decree. Paul and Mary answered through separate counsel. On
March 13, 1958, the court filed a decision granting Benda's motion for summary judgment
and setting aside the order vacating the divorce decree and restoring such decree. Findings,
conclusions and judgment followed.
In its written decision granting Benda's motion for a summary judgment, the court said:
Had there been a full and complete hearing, in which all interested parties had been afforded
their day in court,' I warrant that the order herein vacated would never have been made or
entered. (Emphasis supplied.) It is established by the affidavit of Mary's attorney that at the
time he first called the matter to the court's attention on May 14, 1957, he did inform the
judge of the district court of the fact of Paul's remarriage. It is quite apparent, however, from
the court's statement above quoted that it did not have such information in mind at the time it
vacated the divorce decree, or it would not have vacated the order without notice to Benda or
without affording her an opportunity to be heard.
Counsel for Paul and counsel for Mary joined in the briefs for the appellants and both
argued the case orally on behalf of the appellants. Appellants attack the trial court's findings
to the effect that Paul was a bona fide resident of Washoe County, Nevada, at the time he
commenced his action for a divorce from Mary, and that the court had jurisdiction of the
subject matter of the divorce action and of the parties.
75 Nev. 189, 192 (1959) Moore v. Moore
the court had jurisdiction of the subject matter of the divorce action and of the parties. They
contend that, on the contrary, it appears from the face of the record that neither Paul's
residence in the state nor his residential intent was sufficient to give the court jurisdiction to
decree a divorce.
1
They, accordingly, assert that the divorce decree was void on the face of
the record.
[Headnotes 1-3]
This contention cannot be supported. Paul alleged in his divorce complaint that he was and
had been for more than six weeks prior to the commencement of the action a bona fide
resident of Washoe County, Nevada, actually and corporeally present and residing in said
county during all of said period. He testified to the establishment of his residence in the
county and that it was his intention to make this state his home, and that from the time of
establishing such residence, he had no home anywhere other than in this state. He then
testified to several absences because of business, but showed that the aggregate of the periods
of his corporeal presence within the state before the verification and filing of his complaint
was more than six weeks. The court found that the allegations of his complaint were true and,
as above noted, that he was such resident. In contending that the decree was void on the face
of the record, appellants assert in effect that Paul's temporary absences after coming to
Nevada fully rebut and contradict his testimony of his residential intent. Both his residence
and his intent, however, were factual matters for the court's determination to like extent as
any other matters of fact. Covington v. Second Judicial District Court, 56 Nev. 313, 50 P.2d
517; Drespel v. Drespel, 56 Nev. 368, 45 P.2d 792, 56 Nev. 377, 54 P.2d 226; Grant v. Grant,
38 Nev. 185, 147 P. 451.
The seeming inconsistency between Paul's avowed residential intent on the one hand and
the fact of his absences from the state on the other presented a factual problem which it was
the function of the trial court to resolve.
____________________

1
* * * [N]o court shall have jurisdiction to grant a divorce unless either the plaintiff or defendant shall have
been resident of the state for a period of not less than 6 weeks preceding the commencement of the action. NRS
125.020.
75 Nev. 189, 193 (1959) Moore v. Moore
problem which it was the function of the trial court to resolve. If the residence in fact be
insufficient to confer jurisdiction over the marital res, such would have to be determined in a
review of the manner in which the trial court had exercised its authority to resolve the factual
problem confronting it. Under these circumstances, the divorce decree was not void on the
face of the record, but at the most voidable.
[A]nd the rule in such cases is, that if there be a total defect of evidence to prove the
essential fact, and the court find it without proof, the action of the court is void; but when the
proof exhibited has a legal tendency to show a case of jurisdiction, then, although the proof
may be slight and inconclusive, the action of the court will be valid until it is set aside by a
direct proceeding for that purpose. Nor is the distinction unsubstantial, as in the one case the
court acts without authority, and the action of the court is void; but in the other the court only
errs in judgment upon a question properly before the court for adjudication, and of course the
order or decree of the court is only voidable. [citing cases] New Lamp Chimney Co. v.
Ansonia Brass & Copper Co., 91 U.S. 656, 660; 23 L.Ed. 336. The foregoing case has been
cited with approval on many occasions and we may consider the rule well settled. Accord:
Pena v. Bourland, 72 F.Supp. 290, 294; and Commonwealth ex rel. Howard v. Howard, 138
Pa. Super. 505, 10 A.2d 779.
This is not to say that on direct attack in a proper proceeding it could not be determined
that Paul's residence was insufficient to confer jurisdiction for divorce. However, as the
divorce decree was voidable only, proceedings to set it aside, whether by motion in the cause,
2
or by an independent action, could be effectively had only by notice to all parties who
would be affected by the relief sought.
____________________

2
Respondent also sustains the judgment vacating the order to set aside the decree because the order setting
aside the decree was not made within six months thereafter. NRCP 60(b). This rule requires that motions to
relieve a party from a final judgment on the ground of mistake, inadvertence, surprise or excusable neglect or
fraud, misrepresentation or other misconduct of an adverse party which would have theretofore justified a court
in sustaining a collateral attack upon the judgment, must be made not more than six months after such judgment
or order. A motion to set aside the judgment on the ground that it is void, however, is not required to be made
75 Nev. 189, 194 (1959) Moore v. Moore
or by an independent action, could be effectively had only by notice to all parties who would
be affected by the relief sought. In Zeig v. Zeig, 65 Nev. 464, 482, 198 P.2d 724, 732, this
court said, Obviously, the court could not then make any valid determination of the motion
to vacate, for the further reason that such motion had not been set for hearing * * *. It clearly
appears that neither side had, properly speaking, their day in court, and that the court was
entirely without jurisdiction to make, and could not under such circumstances make, a valid
determination of the motion to vacate the judgment or decree of divorce, and its attempt to do
so was error. See annotation 12 A.L.R.2d 153, Vacating or setting aside divorce decree
after remarriage of party. It is recognized that remarriage of a party does not of itself deprive
the court of the power to vacate the divorce decree. This we held in Smith v. Smith, 68 Nev.
10, 226 P.2d 279. The A.L.R. annotation refers to Bowman v. Bowman, 97 Cal.App. 613,
275 P. 1023, and Carlisle v. Carlisle, 96 Mich. 128, 55 N.W. 673 (which cases we also cited
in Smith v. Smith, supra), to the effect that whether or not the second spouse of one of the
divorced parties is a necessary party to a proceeding to vacate the decree, he is entitled to
notice and without such notice an order vacating the decree will be set aside. See Carpenter v.
Carpenter, 244 N.C. 286, 93 S.E.2d 617. In Bowman v. Bowman, supra, the court said [97
Cal.App. 613, 275 P. 1028]:
We determine that, irrespective of whether appellant was a necessary or proper party to
the proceeding to vacate the final decree, she was entitled to notice of the application, as one
whose rights as a wife have been injuriously affected by the order vacating the final decree of
divorce, and that she is entitled to complain of the fraud practiced upon the court and upon
herself, and, by her cross-complaint in equity, have the said order set aside and annulled."
____________________
within six months. Appellants say that the setting aside of the judgment was not made under Rule 60(b); that
they made no motion at all; that the order was made of the court's own motion; that in any event, as the reason
for setting aside the decree was that the same was void, it is not limited by the six months' rule. As the judgment
from which the appeal is taken must be sustained for the reasons herein appearing, it is unnecessary to pursue
this question.
75 Nev. 189, 195 (1959) Moore v. Moore
of the fraud practiced upon the court and upon herself, and, by her cross-complaint in equity,
have the said order set aside and annulled.
We have noted that not only did Benda have no notice but that she was actually living with
Paul at the time that he, with the assistance of Mary, was preparing and taking proceedings to
reinstate his marriage with Mary and thus annul his marriage to Benda. Under the
circumstances set forth and the other facts appearing in the record, there was no error in the
judgment which vacated the order setting aside the divorce decree which in effect annulled
the marriage to Benda.
The findings of the trial court suggest a determination that the decree was neither void nor
voidable, but was valid. We do not go so far in our affirmance. We but hold that the decree
not being void, but at most voidable, the proceedings to set it aside without notice to Benda
were ineffectual. This in effect leaves the parties in the same position they occupied at the
time that Paul and Mary sought to set aside their divorce decree. This is the same position in
which the district court left the parties in Smith v. Smith, and which we approved. The
judgment in this respect must then be affirmed.
[Headnote 4]
In entering judgment in favor of Benda the court also ordered that she be allowed an
attorney fee of $7,000. No statute of this state and no decision of this court authorizes such
judgment or order. The judgment must, therefore, be modified by eliminating the provision
for payment of attorney fees.
It is ordered that the judgment of the district court be modified by striking therefrom the
order for the payment to respondent of $7,000 attorney fees, and that as so modified, the
judgment is affirmed.
____________
75 Nev. 196, 196 (1959) Shuler v. Kraft
RAY SHULER, Appellant, v. OZZIE KRAFT and CYNTHIA KRAFT, Husband and Wife;
and OZZIE KRAFT, dba Ozzie Kraft Swimming Pools, Respondents.
No. 4129
April 3, 1959 337 P.2d 277
Department No. 3.
Action by salesman against former employers for sum allegedly due as commission upon a
sale. The lower court entered judgment for employers and salesman appealed. The Supreme
Court, Merrill, C. J., held that where salesman employed under oral contract which provided
that he should receive a stated percentage of gross sales price of all swimming pools sold by
him, consulted County Fair and Recreation Board, City Chamber of Commerce and architect,
secured copies of plans and specifications of pool intended to be constructed for Board and
assisted employers in preparing estimates on basis of which employers were prepared to bid
at figure of $67,000, but employers who were unable to qualify for the necessary bonds,
abandoned plan to submit bid, and thereafter member of construction company, upon his own
initiative, consulted employer, employer and construction company submitted bid in sum of
$62,771, and bid was accepted, salesman was not an effective cause of employers'
participation in contract and was not entitled to commission.
Judgment affirmed.
Milton W. Keefer, of Las Vegas, for Appellant.
George Rudiak, of Las Vegas, for Respondents.
Master and Servant.
Where salesman employed under oral contract, which provided that he should receive a stated percentage
of gross sales price of all swimming pools sold by him, consulted County Fair and Recreation Board, City
Chamber of Commerce and architect, secured copies of plans and specifications of pool intended to be
constructed for Board and assisted employers in preparing estimates on basis of which employers were
prepared to bid at figure of $67,000, but employers who were unable to qualify for the
necessary bonds, abandoned plan to submit bid, and thereafter member of
construction company, upon his own initiative consulted employers, construction
company and employers together submitted bid in sum of $62,771, and bid was
accepted, salesman was not an effective cause of employers' participation in contract
and was not entitled to commission.
bid at figure of $67,000, but employers who were unable to qualify for the necessary bonds, abandoned
plan to submit bid, and thereafter member of construction company, upon his own initiative consulted
employers, construction company and employers together submitted bid in sum of $62,771, and bid was
accepted, salesman was not an effective cause of employers' participation in contract and was not entitled
to commission.
OPINION
This is an action brought by appellant as plaintiff to recover a sum allegedly due him as a
commission upon a sale. The court below, sitting without jury, rendered judgment for the
defendant and the plaintiff has appealed. The issue upon this appeal is whether the facts
establish that appellant was the procuring or effective cause of the sale in question and thus
entitled to a commission upon such sale.
Respondents, located in Las Vegas, are engaged in the business of constructing swimming
pools. In 1957 they employed appellant as a salesman. The contract of employment was oral
and was not specific in any respect beyond providing that appellant would receive a
commission of seven and a half percent of the gross sales price of all pools sold by him.
Prior to July 31, 1957 under this agreement appellant negotiated the sale of nine pools. On
that date respondents paid him in full for all commissions then due him. On September 9,
1957 his employment was terminated by written notice from respondents. The present action
concerns the sale of a pool in Boulder City by contract awarded September 10, 1957 by the
Clark County Fair and Recreation Board.
Respondents contend in part that once appellant's contract of employment had been
terminated he is entitled to no commissions for sales later consummated. Appellant in
opposition contends that the circumstances indicate that the termination was not in good faith
and that his right continues to recover commissions otherwise due him. This issue we need
not determine.
Respondents' principal contention is that appellant was not the procuring or effective cause
of the sale in question and for this reason is not entitled to a commission upon it. The trial
court made no findings upon this precise point. Implicit in its findings in the light of its
opinion rendered from the bench, however, is a determination that appellant was not the
procuring cause of the sale.
It is to be noted that the sale here involved was not the usual negotiated sale such as the
contract of employment would seem to have contemplated. The sale resulted from the
acceptance of the contractor's bid on a public works project. It is not contended by
respondents that the contract of employment excludes commissions on such contracts as this.
The question then is whether appellant can be said to have sold the pool to the county board
under the facts before us.
The factors relevant to a right to a commission in such a case as this may well be different
from those in the case of a negotiated sale. The agent has not produced a ready, able and
willing purchaser. The sale has resulted solely from the fact that the bid presented was a
successful bid and was accepted. No authorities have been presented to us to aid us in
determining what the relevant factors in such a case should be. It would seem, however, that
the question should be whether appellant has shown himself to have been responsible for the
making of the bid which was accepted and thus to have been the effective cause of the
contract which was awarded. A study of the record has impelled us to the conclusion that he
has not, and that judgment must be affirmed for this reason.
The record presents evidence to the following effect: In June 1957 the parties learned that
the Clark County Fair and Recreation Board intended to construct a pool and change house at
Boulder City and that bids were about to be entertained for this project. Appellant consulted
the board chairman, the Boulder City chamber of commerce, and the architect. He took
respondent Ozzie Kraft to the proposed location, secured copies of the plans and
specifications and assisted Kraft in preparing estimates, upon the basis of which Kraft
was prepared to bid the job at a figure of $67,000.
the plans and specifications and assisted Kraft in preparing estimates, upon the basis of which
Kraft was prepared to bid the job at a figure of $67,000.
In the latter part of August Kraft learned that due to his financial condition he was unable
to qualify for the necessary bonds. He thereupon abandoned his plan to submit a bid.
About a week later Jay Tobler of the Tobler and Oliver Construction Company of Boulder
City, knowing none of the parties to this suit, upon his own initiative consulted the architect
about the job. He was primarily interested in the construction of the change house. The
architect suggested that he see Kraft as an experienced pool contractor and consider joining
with him in bidding on the job. Tobler saw Kraft, then making his acquaintance for the first
time, and reinterested him in the project. Tobler and Kraft together computed the cost of the
job. Whether to any extent they utilized computations or other work of the appellant does not
appear in the record. It was their plan that respondents should bid on the job as prime
contractor with Tobler and Oliver acting as subcontractor.
On September 10, 1957, the day of the bid, they were again advised that respondents could
not qualify for the necessary bonds. Tobler and Oliver, however, could qualify. It was then
agreed between them that Tobler and Oliver should submit the bid as prime contractor with
Kraft acting as superintendent of the pool construction at a salary plus one-third of the profit
on the job. The bid proposal was submitted by Tobler and Oliver in the sum of $62,771. It
was accompanied by a proposal bond executed by Tobler and Oliver as principals. The bid
was accepted, contract executed, and the work performed. The commission which appellant
seeks is seven and one-half percent of $62,771.
Under these facts appellant cannot claim to have been responsible for the making of the
successful bid or to have been the effective cause of the contract awarded. Nor can it be said
that appellant was the effective cause of respondents' participation in the contract. Effective
cause has been defined as "a cause originating a series of events which, without break in
their continuity, result in accomplishment of the prime objective of employment." J. & B.
cause has been defined as a cause originating a series of events which, without break in their
continuity, result in accomplishment of the prime objective of employment. J. & B. Motors,
Inc. v. Margolis, 75 Ariz. 392, 257 P.2d 588, 592, 38 A.L.R.2d 946.
Respondents' participation was due entirely to Tobler's initiative. The series of events
initiated by appellant had ended prior to Tobler's appearance on the scene. It was Tobler who
initiated a new series of events which culminated in the making of the successful bid: a bid
more than $3,000 lower than that contemplated by appellant.
Affirmed.
____________
75 Nev. 200, 200 (1959) State v. Second Judicial District Court
THE STATE OF NEVADA, on Relation of Its Department of Highways, Petitioner, v.
SECOND JUDICIAL DISTRICT COURT of the State of Nevada,
in and for the County of Washoe, Respondent.
No. 4190
April 7, 1959 337 P.2d 274
On petition for writ of prohibition.
The State of Nevada, on the relation of the Department of Highways, brought prohibition
proceedings against the Second Judicial District Court of the State of Nevada, in and for the
County of Washoe, to restrain the court from proceeding to enforce its order requiring the
State, as a condition of remaining in possession of condemned land pending appeal by the
State from allegedly excessive award, to deposit in court the amount of the award. The
Supreme Court, Merrill, C. J., held that the State was required by statute to make such a
deposit which could be delivered by court to condemnee.
Writ denied and proceedings dismissed.
William E. Freedman, Deputy Attorney General, for Petitioner.
Ernest S. Brown and William L. Hammersmith, of Reno, for Respondent.
1. Eminent Domain.
Though compensation need not first be made, but need only be secured under constitutional provision
that private property shall not be taken for public use without just compensation having first been made, or
secured, payment should not be unduly delayed in those cases where condemnee has already lost
possession and use of his property. Const. art. 1, sec. 8.
2. Eminent Domain.
Where state was in possession of condemned land under order of immediate occupancy, and the State
appealed from compensation award, on ground that award was excessive, the state, as a condition to
remaining in possession pending its appeal, was required by statute to deposit in court the amount of the
award for delivery to the condemnee. NRS 37.100, 37.170; Const. art. 1, sec. 8.
Where the state, which is in possession of condemned land under order of immediate occupancy, appeals
from compensation award on ground that award is excessive, the deposit in court by the state of the amount
of the award as required by statute as a condition of remaining in possession of the land pending appeal,
does not amount to voluntary satisfaction of the judgment and does not render the appeal subject to
dismissal as moot. NRS 37.100, 37.170; Const. art. 1, sec. 8.
OPINION
This proceeding involves the condemnation of land by the State. The State is in possession
of the premises under order of immediate occupancy. It has appealed from the award of
compensation, contending that the award is excessive. The question here presented is whether
the State, as a condition to remaining in possession pending its appeal, must deposit in court
the amount of the award.
The suit for condemnation is brought by the State through its department of highways, and
involves certain lands in Washoe County. After taking possession of those lands under an
order for immediate occupancy, the State secured a decree of condemnation from the
respondent court.
of those lands under an order for immediate occupancy, the State secured a decree of
condemnation from the respondent court. Its appeal from that portion of the decree awarding
compensation to the condemnees is now pending before this court as case No. 4172. That
appeal has already been before us on a preliminary matter. We ruled that execution would not
lie against property of the State and that a writ of execution issued out of the court below
must be quashed. State ex rel. Department of Highways v. Olsen, 75 Nev. 75, 334 P.2d 847.
Following that decision, upon motion of the condemnees respondent court has entered an
order pursuant to NRS 37.170 requiring the State, pending its appeal, to deposit in court the
amount of the condemnation award.
The State now seeks a writ of prohibition restraining respondent court from proceeding to
enforce its order of deposit. The State contends that where a condemnor is in possession
under an order of immediate occupancy, NRS 37.170 does not apply.
That section at the time of the order in question provided,
1. At any time after the entry of judgment, or pending an appeal from the judgment to the
supreme court, whenever the plaintiff shall have paid into court for the defendant the full
amount of the judgment, and such further sum as may be required by the court as a fund to
pay any further damages and costs that may be recovered in the proceedings, as well as all
damages that may be sustained by the defendant, if for any cause the property shall not be
finally taken for public use, the district court in which the proceeding was tried may, upon
notice of not less than 10 days, authorize the plaintiff, if already in possession, to continue
therein, and if not, then to take possession of and use the property during the pendency of and
until the final conclusion of the litigation, and may, if necessary, stay all actions and
proceedings against the plaintiff on account thereof.
2. The defendant, who is entitled to the money paid into court for him upon any
judgment, shall be entitled to demand and receive the same at any time thereafter upon
obtaining an order therefor from the court.
into court for him upon any judgment, shall be entitled to demand and receive the same at any
time thereafter upon obtaining an order therefor from the court. The court or judge thereof
shall, upon application being made by such defendant, order and direct that the money so paid
into court for him be delivered to him upon his filing a satisfaction of the judgment, or upon
his filing a receipt therefor, and an abandonment of all defenses to the action or proceeding,
except as to the amount of damages that he may be entitled to in the event that a new trial
shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment
by such defendant of all defenses interposed by him, excepting his claim for greater
compensation.
Immediate occupancy is authorized by NRS 37.100 which, at the time of the order in
question, provided in part as follows:
1. The plaintiff may move the court or a judge thereof, at any time after the
commencement of suit, * * * for an order permitting the plaintiff to occupy the premises
sought to be condemned, pending the action, * * *.
2. The court or a judge thereof shall take proof, by affidavit or otherwise, of the value of
the premises sought to be condemned and of the damages which will accrue from the
condemnation, and of the reasons for requiring a speedy occupation, and shall grant or refuse
the motion according to the equity of the case and the relative damages which may accrue to
the parties.
3. If the motion is granted, the court or judge shall require the plaintiff to execute and file
in court a bond to the defendant, with sureties, to be approved by the court or judge in a penal
sum to be fixed by the court or judge, not less than double the value of the premises sought to
be condemned and the damages which will ensue from condemnation and occupation, as the
same may appear to the court and judge on the hearing * * *. * * * The amounts fixed shall
be for the purpose of the motion only, and shall not be admissible in evidence on final
hearing.
5. The provisions of this section requiring the execution and filing of a bond shall not
apply in any action or proceeding in which the State of Nevada is the plaintiff, but the
public faith and credit of the State of Nevada is hereby pledged as security in lieu of the
bond."
execution and filing of a bond shall not apply in any action or proceeding in which the State
of Nevada is the plaintiff, but the public faith and credit of the State of Nevada is hereby
pledged as security in lieu of the bond.
Our problem is one of statutory construction: to effect a reasonable reconciliation of these
two sections, both having to do with a condemnor's right to possession of the condemned
premises pending final determination of all disputes relating to the particular condemnation.
The State contends that its right to possession is fixed by NRS 37.100 and that its right
under that section continues pending the actionthat is, until final disposition of the
litigation upon appeal. It contends that NRS 37.170 should be construed as applying only in
cases where the appeal is taken by the condemnee from what he regards as an inadequate
award.
The State's proposed reconciliation of the two sections, then, is to make their applicability
depend upon which party is appealing. Thus, if a plaintiff is appealing, his right to possession
pendente lite is fixed by NRS 37.100; while if the defendant is appealing, the plaintiff's right
to possession is fixed by NRS 37.170.
On the other hand, respondent contends that NRS 37.100 should apply only pending the
trial of the action; that NRS 37.170 should apply to all appeals whether taken by the
condemnor or condemnee.
The language of the two sections favors respondent's construction. NRS 37.170 expressly
contemplates that it shall apply in cases where the plaintiff is already in possession. NRS
37.100 does not appear to contemplate that motions thereunder would be made after
judgment. On the contrary, by the means provided for determining value, the section appears
to contemplate that no determination by judgment shall yet have been made. No provision is
made for adjustment of security to conform to judgment.
We may note that either proposed construction would seem to be available under our
constitutional provision: nor shall private property be taken for public use without just
compensation having first been made or secured * * *."
without just compensation having first been made or secured * * *. Nev. Const. Art. I,
sec. 8.
[Headnote 1]
However, we believe the sense and spirit of the constitutional requirement favor
respondent's construction. Although compensation need not first be made, but need only be
secured, payment should not be unduly delayed in those cases where the condemnee has
already lost the possession and use of his property. The assurance of ultimate payment plus
interest may not be sufficient to meet the immediate needs of a condemnee either to his
property or to its cash equivalent. The power not only to take possession of another's
property, but also to postpone indefinitely the payment of just compensation for it, is a power
which may well have an oppressive effect. It might well, through duress of circumstances,
compel the acceptance by a condemnee of compensation felt not to be just.
[Headnote 2]
We conclude that NRS 37.170 should be construed to require deposit by the State as
ordered by respondent court.
[Headnote 3]
The State contends that this construction in practical effect deprives it of its right to appeal
in all cases where it has already gone into possession. It points out that NRS 37.170 not only
provides for deposit by the condemnor but for the payment to the condemnee of such deposit.
Such payment, the State contends, amounts to a voluntary satisfaction of judgment which
renders the appeal subject to dismissal as moot, citing Mt. Shasta Power Corp. v. Dennis, 66
Cal.App. 186, 225 P. 877.
Such is not our view of the law. The deposit provided by NRS 37.170 is a condition to the
condemnor's right to maintain an appeal while remaining in possession. It is not an
acceptance of the judgment rendered, but is the meeting of a condition by which that
judgment may be disputed. The deposit in the hands of the condemnee is thus as much
subject to the final disposition of the case as is property obtained by a judgment creditor
through execution pending appeal. In such cases the judgment debtor is entitled to restitution
of so much as may ultimately be determined to be excessive.
as may ultimately be determined to be excessive. Ex Parte Walter Brothers, 89 Ala. 237, 7
So. 400, 18 Am.St. Rep. 103; Ward v. Sherman, 155 Cal. 287, 100 P. 864; Drury v. Franke,
247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917; see Anno. 101 A.L.R. 1148.
Under a statute similar to ours, the Arizona supreme court in a recent case has held that
deposit pending appeal does not render the appeal moot. It stated, True, the statute does not
explicitly provide for recovery by the State from the condemnee of any amount deemed
excessive upon appeal. But, assuming that an excessive award might be found in an
appropriate case, the interpretation of the statute for which appellees contend would mean
that, whenever the State sought use of property before conclusion of an appeal, as provided
for by the statute, the condemnee would gain a fixed right, not to just compensation,' but, if
awarded, to excessive, unjust compensationa result hardly consistent with the legislature's
enactment and beyond the just compensation' which the Constitution requires. State ex rel.
Morrison v. Jay Six Cattle Company, 85 Ariz. 220, 335 P.2d 799, 802.
The State contends that in any event this construction places upon the State an undue
burden: that of seeking to get back from a condemnee that which he should never have had
and may already have squandered.
This is the burden which must be borne by every judgment debtor who appeals in absence
of supersedeas. We do not regard such burden as unjust when balanced against the
condemnee's right to prompt compensation for property already taken.
We affirm respondent court in its entry of the order in question. Writ denied and
proceedings dismissed.
____________
75 Nev. 207, 207 (1959) Jefferson v. Joiner
PERCY L. JEFFERSON, aka P. L. JEFFERSON, Appellant, v. JAMES IRVING JOINER,
SHARON DYAN JOINER, and VALORIE JOINER, Infants, by BOBBIE JOINER,
Their Guardian Ad Litem, and BOBBIE JOINER, Respondents.
No. 4131
April 10, 1959 337 P.2d 622
Department No. 3.
Action for wrongful death. The trial court entered judgment for widow and surviving
children and defendant appealed. The Supreme Court, McNamee, J., held that awards to
widow and three surviving minor children totaling $25,000 for death of deceased who had
been a mental patient incapable of earning a living and who was on probational release from
hospital at time of death, was excessive.
Harry E. Claiborne, of Las Vegas, for Appellant.
Robert Callister, of Las Vegas, for Respondents.
1. Death.
In wrongful death action by widow and three surviving minor children of deceased, evidence sustained
finding that death of decedent, who had used a knife on defendant while being ejected from defendant's
nightclub, was the result of a willful, intentional and wanton act on part of defendant.
2. Death.
Where deceased at time of his death was unable to earn living because of his mental condition, and there
was no record from which it could be determined if decedent would have ever recovered his mental
faculties or what his earning capacity was as a sane man, and record tended to show that financial condition
of widow and the three minor children had actually improved after his death because of increased pension
benefits, any award for pecuniary damages in excess of a nominal amount was error.
3. Death.
$25,000 pecuniary damage award to widow and three minor children of 24-year-old deceased who was
incapable of earning any money because of his mental condition and was receiving a pension was
excessive.
OPINION
This action is brought to recover damages for the wrongful death of Walter Joiner. The
respondents, plaintiffs below, are the surviving children and the widow of decedent.
Trial was by the court without a jury and judgment was entered in favor of each minor in
the sum of $5,000 and in favor of the widow in the sum of $10,000, a total of $25,000 against
the defendant.
Appeal is from said judgment and from the order refusing a new trial.
Decedent was 24 years old at the time of his death. He had married his wife December 14,
1951. The three children, co-plaintiffs herein, were, at the time of the trial, aged 6, 3, and 2
years.
After the marriage the couple lived in Las Vegas until February 1953 when decedent
entered the service and moved to California. His wife joined him there two months later and
remained with him in California until his discharge from the service in 1955. They then
returned to Nevada. Shortly thereafter and during the same calendar year deceased became
mentally ill and was committed to a hospital in California where he remained, except for
occasional weekends, until shortly before his death. At the time of his death he had been in
Las Vegas for 30 days of a 90-day probational release from the hospital.
On August 1, 1956 decedent had been several times in and out of a night club in Las
Vegas known as the Brown Derby. He had been ejected forcibly by the proprietor, defendant
herein, at least twice for being intoxicated and obnoxious, and during one of their encounters,
he tore defendant's shirt. When he returned the last time he severely injured defendant with a
knife while being ejected. Thereupon defendant shot and killed decedent.
[Headnote 1]
The court found that death of decedent was the result of the willful, intentional, and
wanton act of the defendant.
of the willful, intentional, and wanton act of the defendant. While we might have reached a
different conclusion in deciding this controverted issue, there is sufficient evidence to sustain
this finding of the court.
We are thus concerned only with the matter of damages.
Plaintiffs prayed for both pecuniary and exemplary damages, which they were authorized
to do under NRS 12.090. The court in its oral decision said: Now damages in this case is a
difficult problem. It is true from the evidence that the man might have been or was mentally
deranged and what he would contribute to his family in the future is uncertain, or what they
may have been deprived of as a result of his death we will never know; he might have been
shortly restored to health and mental competency and certainly the probability that he would
have been affected for a long time, if not for the rest of his life, his ability to earn or his
capacity to provide for his family might have been affected by that for a long time or for the
rest of his life, we don't know.
My finding is that the plaintiff, Bobbie Joiner, the widow of the decedent is entitled to
and shall have and recover the sum of ten thousand dollars; that each of the children shall
have and recover from the defendant five thousand dollars each.
Thereafter it caused to be entered judgment in accordance with said decision without
specifying whether the several awards were for pecuniary or exemplary damages or whether
they included both.
Because of the mental condition of decedent, he had no income from earnings but at the
time of his death he was drawing a pension of $150 per month and his wife was receiving $80
per month for the support of herself and the three children. Ever since decedent's death his
widow has received death benefits from social security and the Federal Government in the
sum of $195 per month for her support and for the support of the children, and such sum will
continue until the children become of age. The record is silent as to the amount of any
contribution decedent made to his family prior to his commitment, the decedent's life
expectancy, and the prognosis of his mental condition.
to his commitment, the decedent's life expectancy, and the prognosis of his mental condition.
With respect to his pension, the widow testified that the hospital kept the $150 payments
which decedent received while he was in the hospital, but when he got out the payment
thereafter was made to him and he in turn gave the money to her.
The only evidence relative to services rendered to his family is the following testimony of
his widow:
Well, he was a normal husband, he loved the children very much and we would oftenI
mean he would do a lot of things around the house and he was good at working around the
house and he would often go shopping and he played with the kids a lot and tell them little
stories and he often bought things for them all the time. * * * Such as toys and then he would
buy them something if it was not any more than just a little toy.
It is apparent from the foregoing that decedent's family received only $80 a month for their
support from the time of his commitment until his death, plus the $150 pension money which
accrued while he was out of the hospital for the 30-day period prior to his death.
In Wells, Inc. v. Shoemake, 64 Nev. 57, 74, 177 P.2d 451, 460, a wrongful death case, this
court said:
In determining whether the award of damages is excessive or not, the court should
consider whether the award is fair and reasonable, and in the exercise of sound discretion,
under the facts and circumstances of the particular case; and the mere fact that the verdict is a
large one is not conclusive that it is the result of caprice, passion, prejudice, sympathy or
other consideration not found in the evidence; nor is the fact that juries in other similar cases
have fixed a much lower amount as damages controlling on the question of excessiveness. A
calculation based on decedent's earning capacity for his life expectancy furnishes a basis for
an estimate to be considered, and to this should be added the proved value of services, if any,
of decedent to his beneficiaries, which they might reasonably have received from him and
which can only be supplied by the services of others for compensation."
from him and which can only be supplied by the services of others for compensation.
As stated before there is no evidence in the record upon which to calculate deceased's
earning capacity as a sane man. There is no evidence from which to determine if decedent
ever would have recovered mentally; and lastly there is no evidence of proved value of
services, if any, of decedent to his beneficiaries. On the other hand the record tends to show
that the financial condition of the beneficiaries has improved since and as a result of the death
of decedent.
[Headnote 2]
Under these circumstances it would be error if the judgment for damages contained an
award for pecuniary damages in excess of nominal damages. 25 C.J.S. Death, sec. 96, p.
1238.
The only possible justification for the judgment, then, would be as exemplary damages
based upon purely nominal pecuniary damages. It is contended by the appellant that even as
exemplary damages the judgment would be excessive. This question we need not determine.
In our view it is not possible, in the light of the record, to read the judgment as an award of
exemplary damages. That part of the decision of the trial judge quoted above indicates that he
was concerned only or substantially with the problem of pecuniary damages. Nowhere in the
record can we find an expressed intention on the part of the judge to award or take into
consideration exemplary damages. The fact that the award to the widow was twice the award
to each minor child would indicate that it was pecuniary and not exemplary damages with
which the court was concerned. If, however, it was the intention of the trial court to award
exemplary damages, the disproportion between nominal pecuniary damages and the total
judgment is so great that an intention to make such an exemplary award must, under these
circumstances, expressly appear, since it cannot reasonably be presumed.
[Headnote 3]
We conclude that we cannot view this judgment upon the record before us as constituting
an award of exemplary damages. As an award of pecuniary damages it is clearly excessive.
Judgment reversed and the case remanded for a new trial.
____________
75 Nev. 212, 212 (1959) Kennecott Copper Corp. v. Reyes
KENNECOTT COPPER CORPORATION, Appellant, v.
NICOLAS REYES, CONCHA REYES, Respondents.
No. 4134
April 10, 1959 337 P.2d 624
Appeal from the Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Action for death of compressor truck driver in slide occurring in his employer's open pit
mining operation. The lower court rendered judgment for driver's parents and employer
appealed. The Supreme Court, Badt, J., held that even if employer were negligent or grossly
negligent in permitting compressor truck driver to work in employer's open pit mining
operation because employer had foreseen and expected that at some time in the future a slide
would occur, slide was an accident within Industrial Insurance Act and parents of driver, who
was buried and killed in slide, were restricted to compensation as might be awarded under
Act and were not entitled to maintain common-law action against employer where both driver
and employer were covered by and subject to terms and conditions of Act.
Reversed.
Gray and Horton, of Ely, for Appellant.
John Sanchez and Peter Echeverria, of Reno, for Respondents.
Workmen's Compensation.
Even if employer were negligent or grossly negligent in permitting compressor truck driver to work in
employer's open pit mining operation because employer had foreseen and expected that some time in the
future a slide would occur, slide was an accident within Industrial Insurance Act and parents of driver,
who was buried and killed in slide, were restricted to such compensation as might be awarded under Act
and were not entitled to maintain common-law death action against employer where both driver and
employer were covered by and subject to terms and conditions of Act. NRS 616.020, 616.370,
616.615.
OPINION
Neives Nickie Reyes was buried and killed in a slide occurring in what was known as the
Liberty Pit, a part of appellant's open pit mining operation at Ruth, Nevada. The deceased's
father and mother, respondents herein, filed their complaint against appellant alleging that the
deceased, a compressor truck driver, had been directed to work in a place that was not
reasonably safe, that appellant had not warned him of the hazards, had taken no precautions,
and was guilty of wanton and reckless conduct by reason whereof decedent's death had
resulted. Plaintiffs also alleged that by reason of defendant's recklessness and wantonness,
they were entitled to exemplary damages. The jury returned a verdict in favor of the plaintiffs
and against defendant for special damages for funeral expenses in the sum of $833,
compensatory damages in the amount of $10,000, and punitive damages in the amount of
$10,000.
Plaintiff and defendant were both covered by and subject to the terms and conditions of the
Nevada Industrial Insurance Act. Appellant contended throughout all of the proceedings in
the trial court that the claims of respondents for compensation growing out of the death of
their son were restricted to such compensation as might be awarded under the Industrial
Insurance Act to the exclusion of any remedy by way of a common-law action against
appellant. NRS 616.370; McColl v. Scherer, 73 Nev. 226, 315 P.2d 807. It was and is the
contention of the respondents that appellant, its officers, agents, and employees had
been aware for more than a week prior to the slide or cave-in of a dangerous situation;
that a spalling had been in evidence indicating the imminence of a slide with its danger to
employees working below for that entire period, and that its actions in ordering the
decedent to continue his work below the threatened slide, without any warning to him,
and without taking any steps for his safety constituted reckless, willful, and wanton
misconduct.
contention of the respondents that appellant, its officers, agents, and employees had been
aware for more than a week prior to the slide or cave-in of a dangerous situation; that a
spalling had been in evidence indicating the imminence of a slide with its danger to
employees working below for that entire period, and that its actions in ordering the decedent
to continue his work below the threatened slide, without any warning to him, and without
taking any steps for his safety constituted reckless, willful, and wanton misconduct. Their
main contention, however, pinpointed by the oral argument, is that the occurrence causing
decedent's death was not an accident and was not within the purview of, and was not
covered by the provisions of the Nevada Industrial Insurance Act; that, in other words,
decedent's death was not compensable under the terms of said act.
Respondents first refer to NRS 616.615, which provides for death benefits if an injury by
accident arising out of and in the course of employment, causes the death of an employee.
They then refer to NRS 616.020 defining accident as follows: Accident' shall be
construed to mean an unexpected or unforeseen event happening suddenly and violently with
or without human fault, and producing at the time objective symptoms of an injury.
(Emphasis supplied.) Referring then to provisions of the act excluding casual employees,
persons engaged in certain theatrical performances or in household domestic service or
agricultural labor, and certain employments in interstate commerce, respondents insist that in
like manner the very terms of the act exclude all injuries, whether or not the same arise out of
and in the course of employment which do not come within the statutory definition of
accident; that if the slide that killed the decedent was not an unexpected or unforeseen
event, it was excluded from the operation of the Industrial Insurance Act, was not
compensable under the act, and that respondents were not deprived of their common-law
remedy.
Respondents quote at length from the record from which it appeared that various officers
and employees of appellant, having authority over the pit operations, testified when called as
adverse witnesses by respondents that they were aware for some days preceding the
slide that some spalling action was evident, that a slide was expected, that rocks were
coming down, that there was a dangerous condition, that cracks were observable, that
the conditions were such that a man was posted to watch the same, that if the spalling
continued, it was likely that the area below would be hazardous, and similar testimony.
testified when called as adverse witnesses by respondents that they were aware for some days
preceding the slide that some spalling action was evident, that a slide was expected, that rocks
were coming down, that there was a dangerous condition, that cracks were observable, that
the conditions were such that a man was posted to watch the same, that if the spalling
continued, it was likely that the area below would be hazardous, and similar testimony.
Although much of the purport of this testimony is limited and qualified by other testimony
of the same witnesses, we may assume for the sake of argument that the appellant knew that a
dangerous condition existed, that they foresaw and expected that a slide would occur at some
time in the future. They had no knowledge as to when the slide would or might occur. It is not
contended that appellant had any deliberate intent to kill or injure the decedent, or any other
employees of appellant. We may assume further that the continuance of the work under the
circumstances was negligence on the part of appellant. To fix the degree of negligence is not
necessary. If the occurrence was an accident as defined, compensation under the act would
follow whether the event was with or without human fault.
Nothing in the statutory definition of an accident and nothing elsewhere in the act
indicates an exclusion from its compensatory provisions of any accident by reason of any
varying of the employer's degree of fault. Nowhere in the act appears any distinction between
accidents resulting from the employer's negligence, his gross negligence, his wanton
negligence or his recklessness. Any injury to an employee arising out of and in the scope of
his employment is as compensable, under the provisions of the act, under one degree of
negligence as under another.
Respondents' contention that the sudden and violent event that resulted in the decedent's
death was not an accident within the statutory definition because it was foreseen and expected
by appellant, must be rejected. The mere fact that appellant had foreseen and expected that at
some time in the future a slide would occur, though coupled with negligence, even gross
negligence, in permitting the operation to continue in view of lack of knowledge as to
when the slide would occur, or even in view of its possible imminence, does not permit
the conclusion that the event was not an accident.
though coupled with negligence, even gross negligence, in permitting the operation to
continue in view of lack of knowledge as to when the slide would occur, or even in view of
its possible imminence, does not permit the conclusion that the event was not an accident.
In Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78, 83, the contention was made,
as it is made here, that the occurrence was not in reality an accident, as it was readily
foreseeable by the employer in the light of the preventable peril to the employee which the
employer knew existed, but of whose existence the employee had no knowledge or warning.
The Kansas court rejected such restricted definition of accident and its language answers
most of the contentions of respondent. The court said:
Whether the facts alleged in the petition show negligence only or whether they show
wantonness on the part of the employer may be debatable. But even if the acts or conduct
alleged do show wantonness, we find no authority either in the statute or in our decisions
construing the statute that would justify us in saying that the injury was not compensable
under the Workmen's Compensation Act. Considering the whole subject broadly, the
legislature has made certain exceptions such as agricultural pursuits, 44-505, interstate
commerce, 44-506, and others, but has not included willful misconduct' or wantonness' of
the employer among the exceptions. Nor is there any distinction between gross negligence'
and any other degree of negligence, as far as applicability of the Act is concerned. See 71 C.
J. 1485. If so compensable, an action at common law will not lie. To hold otherwise would
open a by-pass around the Act and permit attempted recovery in common law actions which
the Act was intended to supersede. If the plaintiff here had established the same facts in a
proceeding to secure compensation under the Act, can there be any doubt that he would have
been entitled to an award? If so entitled, it follows, under our decisions, that such relief is
exclusive.
Judgment reversed. The case is remanded with instructions to enter a judgment for the
defendant.
____________
75 Nev. 217, 217 (1959) Ebert v. Western States Refining Co.
L. A. EBERT and LOU EVA EBERT, His Wife, Appellants, v. WESTERN STATES
REFINING COMPANY, a Corporation, Respondent.
No. 4137
April 17, 1959 337 P.2d 1075
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action for specific performance of agreement to convey realty. The trial court entered
judgment for plaintiff, and the defendants appealed. The Supreme Court, McNamee, J., held
that written agreement in form of exchange of letters, providing for lease of property for
five-year period and stating that at the end of the five year period by giving us 60 day notice
the corporate tenant should have the right to purchase, and containing two subsequent
references to an option to purchase, conferred upon tenant unconditional option to purchase
rather than option to purchase conditional upon the landlords' consent, notwithstanding use of
word us.
Affirmed.
(Petition for rehearing denied April 29, 1959.)
D. W. Priest, of Reno, for Appellants.
Williams and Mann, of Elko, for Respondent.
1. Landlord and Tenant.
Written agreement in form of exchange of letters, providing for lease of property for five-year period and
stating that at the end of the five year period by giving us 60 day notice the corporate tenant
should have the right to purchase, and containing two subsequent references to "an"
option to purchase, conferred upon tenant an unconditional option to purchase rather
than option to purchase conditional upon the landlords' consent, notwithstanding use
of word "us."
corporate tenant should have the right to purchase, and containing two subsequent references to an option
to purchase, conferred upon tenant an unconditional option to purchase rather than option to purchase
conditional upon the landlords' consent, notwithstanding use of word us.
Where lease gave tenant, at end of five-year rental period, the option to purchase by giving 60-day notice
to landlords, and tenant gave notice of intention to exercise option at a time when rent for the last two
months of the term had not yet become due, and landlords made it apparent to tenant that landlords would
not convey voluntarily, and tenant was at all times ready, willing and able to pay the last two months' rent,
the fact that the last two months' rent was not paid when due did not destroy tenant's right to conveyance.
OPINION
This appeal is from a judgment and decree which reforms and specifically enforces a
written agreement to convey real property.
The written agreement is in the form of two letters and is the result of prior oral
discussions between the appellant, L. A. Ebert, hereinafter called Ebert, and agents of
respondent corporation, hereinafter called the corporation.
On June 3, 1952 the following letter was written by respondent to said appellant:
Dear Mr. Ebert:
This letter is to confirm our understanding until a formal contract can be drawn regarding
the property located at Elko, Nevada known as Oil City.
It is our understanding of our agreement that we will lease the property from you for a
period of five years at a monthly rental of $400.00 per month, that at the end of the five year
period by giving us 60 day notice we shall have the right to purchase the property involved
for the sum of $16,000.00. In the meantime it is our intention to remodel and re-construct the
building by adding additional storage and several new pump islands. That in the event we do
not desire to exercise the option, that is the option to purchase, all property constructed or
located on the premises shall become the property of the lessor.
exercise the option, that is the option to purchase, all property constructed or located on the
premises shall become the property of the lessor.
As soon as I have obtained from you the exact legal description I will draw a formal
contract which shall provide for the execution by you and your wife and which shall be to the
effect that in the event the option is exercised to purchase the property you will furnish title to
the entire property free and clear of all encumbrances.
I believe that this sets forth our understanding of the matter and this letter will suffice as
our working agreement until a more formal contract can be executed.
Yours very truly,
Western States Refining Company
/S/ W. S. Wagstaff
On June 4, 1952 Ebert answered as follows:
Mr. W. S. Wagstaff
Western States Refining Co.,
North Salt Lake, Utah
Dear Stan:
I have your letter of June 3rd, and your letter confirms exactly what we agreed to, except I
believe the Company should take care of all taxes, and such Insurance that will protect us,
that you deem proper, otherwise I guess that covers everything.
This is the legal description of the property, is as follows: Lots 11, 12 and 13 of Block
47R of Sunset Heights Sub-division of the First Addition to the City of Elko (formerly Town
of Elko) as laid down and delineated in the official plat of said Town (now said City) on file
in the office of the County Recorder of said County.
Enclosed please find two drawings that the County Surveyor made up after a regular
tussle by me and two days effort.
When you incorporate my wife's name, it is, Lou Eva Ebert.
My Insurance lapses soon, I believe August 17th, 1952.
[Headnote 1]
The chief contention of the parties concerns the meaning of the phrase that at the end of
the five year period by giving us 60 day notice we shall have the right to purchase (emphasis
added), appearing in said June 3 letter.
The evidence shows that it was the intention of the parties prior to the exchange of these
letters that plaintiff corporation would buy the property on which a service station was being
operated for the sum of $40,000 under an agreement in the form of a lease and option with
rental payments of $400 a month for a period of five years commencing August 1, 1952; that
at the end of said five-year period the purchaser would have paid $24,000 in rents, and the
balance due on the purchase price would then be $16,000, which the purchaser could pay if it
desired a deed for the property.
After the exchange of said letters the corporation went into possession of the property,
expended over $17,000 in improvements and paid all of the rent, except for the last two
months of the term, to wit, for the months of June and July 1957.
In June 1953 the corporation sent to Ebert a formal lease containing provisions for a term
of five years with an option to the lessee to purchase at the end of said period for the sum of
$16,000 upon lessee giving notice of its intention so to do at least 60 days prior to the
expiration of the lease. This formal lease was never executed by Ebert. In February 1957 the
corporation gave Ebert a written notice of its exercise of the option and offered to pay
forthwith the sum of $16,000 to Ebert's credit into any bank he should designate. This notice
was ignored by Ebert. Ebert's conduct made it apparent to the corporation that Ebert, would
resist the corporation's demands that he and his wife convey the property to it and that such
resistance would be based upon the ground that said letter of June 3, 1952, in using the words
by giving us 60 day notice, we shall have the right to purchase, required the consent of the
lessor (Ebert) before the lessee had the right to exercise the option.
W. S. Wagstaff, the general manager and president of the corporation, testified that he had
dictated the letter of June 3, 1952 to his secretary in the presence of Ebert and that as dictated
he had said a 60 day notice which was the understanding of the parties, but that the
transcriber had inadvertently written us for a; that neither he nor Ebert had noticed the
inadvertence at that time; and that it was not called to the corporation's attention until after
February of 1957. This testimony was contradicted by Ebert. The trial court, believing the
testimony of Wagstaff, ordered reformation of the letter of June 3 to read a instead of us
and thereupon decreed specific performance as prayed for.
Appellant's counsel devotes a substantial part of his briefs and argument contending that
this action of the court in ordering reformation was erroneous.
It is apparent to this court that the letter in its original form intended to and did refer to an
unconditional option to purchase rather than to an option to purchase conditional upon the
seller's consent. The sound of the spoken words give us 60 day notice is so similar in sound
to the words give a 60 day notice that it is not difficult for us to recognize the fact that a
substitution of the one for the other could easily occur on transcription. Furthermore, unless
an option to purchase was intended, these words pertaining to an option would be
meaningless and surplusage. That an option to purchase was intended is also apparent from
the two subsequent references in the letter to an option wherein the option is expressly
referred to as an option to purchase. A reformation of the instrument therefore was
unnecessary and the court action in this regard in no manner could have prejudiced the
appellants.
[Headnote 2]
Appellants next contend that even if the agreement refers to an option to purchase, the
failure to pay the last two months' rent precluded the corporation from exercising the option.
In this connection it must be recognized that in February 1957, when the corporation gave
notice of its intention to exercise the option, the rent for the last two months of the term
had not yet become due and payable.
gave notice of its intention to exercise the option, the rent for the last two months of the term
had not yet become due and payable.
The fact that these two monthly payments were thereafter not paid in June and July 1957
when they became due did not destroy the corporation's right to a conveyance when, as the
trial court found, it was apparent to the corporation that Ebert would not convey voluntarily
and that the corporation was at all times ready, willing, and able to pay the $800 rent
remaining due and unpaid and the $16,000 remaining to be paid on the purchase price. See
Mosso v. Lee, 53 Nev. 176, 295 P. 776; Irvine v. Hawkins, 20 Nev. 384, 22 P. 240;
Restatement, Contracts, sec. 306, sec. 374 (1932).
Affirmed.
____________
75 Nev. 222, 222 (1959) Fausone v. Fausone
MILDRED K. FAUSONE, Appellant, v.
PETER J. FAUSONE, Respondent.
No. 4138
April 21, 1959 338 P.2d 68
Action by husband for divorce on ground of three years' separation from wife, who was 56
years old, who was suffering from severe degenerative arthritis of the left ankle and who had
no provision or prospects for employment and had only an eighth grade education and had not
worked during her marriage and was in debt and had no sources of income other than charity
of friends and relatives. From a judgment of the trial court granting husband a divorce and
denying wife alimony, the wife appealed. The Supreme Court, Badt, J., held that trial court
erred in refusing to award alimony to wife, who had been married some 19 years at time
of trial.
J., held that trial court erred in refusing to award alimony to wife, who had been married
some 19 years at time of trial.
Affirmed in part. Reversed in part.
Joseph O. McDaniel, of Elko, for Appellant.
Williams and Mann, of Elko, for Respondent.
1. Divorce.
In action by husband for divorce on ground of separation for three consecutive years without cohabitation
and for extreme cruelty wherein wife filed a counterclaim for separate maintenance on ground of extreme
cruelty and for decree of divorce on ground of desertion, court did not err in failing to apply doctrine of
comparative rectitude and in granting husband a divorce on ground of three years' separation and in
refusing to make findings on the other issues. NRS 125.010, 125.120.
2. Divorce.
In action by husband for divorce on ground of three years, separation from wife, who was 56 years old
and who was suffering from severe degenerative arthritis of the left ankle, and who had no provision or
prospects for employment and had only an eighth grade education and had not worked during her marriage
and was in debt and had no sources of income other than charity of friends and relatives, trial court erred in
refusing to award alimony to wife, who had been married some 19 years at time of trial. NRS 125.010,
125.120.
3. Divorce.
Supreme Court cannot in the first instance fix the amount properly to be allowed to wife for her support
after divorce.
OPINION
This is the wife's appeal from a judgment awarding the husband a divorce and refusing to
award any alimony to her.
The husband's complaint for divorce alleged three years' separation as his first ground, and
extreme cruelty under a second cause of action. The appellant wife answered denying both
counts of the complaint and counterclaimed for separate maintenance on the ground of
extreme cruelty of the plaintiff and for a decree of divorce on the ground of his desertion,
and asked for alimony of $150 a month.
ground of extreme cruelty of the plaintiff and for a decree of divorce on the ground of his
desertion, and asked for alimony of $150 a month.
As to the grounds of the divorce decree the court found only: That during said marriage,
and for more than three consecutive years last past, the plaintiff and defendant have lived
separate and apart without cohabitation. From this finding it concluded that plaintiff was
entitled to a divorce on the ground stated. It made no findings on the husband's allegations of
cruelty or on the wife's allegations of cruelty and desertion. At the conclusion of the trial and
the submission of the case the court stated from the bench: We may have the record further
show that the decree be entered for the plaintiff and against the defendant on the ground of
three years' separation. All other grounds denied, relief requested by the defendant is denied.
In denying alimony the court said: There is no reason in the world why a man should
support a woman, unless she has something obligating her such as with the care and support
of children, why he should have to support her any more than I should support him because
he needs it. If he has imposed obligations on her as a result of her marriage, she has suffered
an illness, or become disabled during her life with him, then she is entitled to alimony. I can
see no other reason. A woman is not entitled to alimony just because she has been his wife.
[Headnote 1]
Appellant assigns error in two respects: first, that the evidence clearly shows that she was
entitled to a divorce on the ground of her husband's extreme cruelty to her, and that in any
event she was the least at fault, and, secondly, that the court abused its discretion in refusing
to grant the wife any alimony.
(1) The legislature of this state in 1931 added to the grounds for divorce separation of the
parties without cohabitation for a period of five years. In 1939 this was amended by reducing
the period of separation to three years. Our present statute is NRS 125.010, reading as
follows: Divorce from the bonds of matrimony may be obtained for any of the following
causes: * * * 9.
be obtained for any of the following causes: * * * 9. When the husband and wife have lived
separate and apart for 3 consecutive years without cohabitation the court may, in its
discretion, grant an absolute decree of divorce at the suit of either party. Subparagraph 3 of
this section permits divorce for willful desertion for a period of one year, and subparagraph 6
permits divorce for extreme cruelty.
The theory of comparative rectitude was adopted in 1931 (and amended in 1957, by
adding the condition expressed in the last clause) in the following words now appearing as
NRS 125.120, In any action for divorce when it shall appear to the court that both husband
and wife have been guilty of a wrong or wrongs which may constitute grounds for a divorce,
the court shall not for this reason deny a divorce, but in its discretion may grant a divorce to
the party least in fault, if both parties seek a divorce, otherwise to the party seeking the
divorce.
Appellant contends that it was error for the court to fail to apply the doctrine of
comparative rectitude as expressed in NRS 125.120 in awarding the plaintiff husband a
divorce on the ground of three years' separation. She has submitted no authorities in point that
sustain this contention. The decisions of this state all indicate the contrary. In Kohlsaat v.
Kohlsaat, 62 Nev. 485, 155 P.2d 474, 475, the husband was granted a decree on the ground of
three years' separation. The wife alleged plaintiff's desertion, extreme cruelty and adultery,
and asserted that he was most at fault, and evidence was given at the trial in support of the
wife's assertions. Such evidence was received by the court for the purpose of permitting it to
take the same into consideration in the exercise of its discretion pursuant to the sanction
given such procedure by this court in the cases of Herrick v. Herrick, 55 Nev. 59, 25 P.2d
378, and Jeffers v. Jeffers, 55 Nev. 201, 29 P.2d 351. This court there said: In other words,
the position of appellant, as it appears to us, is that in an action based upon three years
separation, if the defendant in that action establishes to the satisfaction of the court that the
plaintiff had been guilty of desertion, extreme cruelty or adultery, and had been most at
fault, then the trial court is bound to exercise its discretion in favor of the defendant.
plaintiff had been guilty of desertion, extreme cruelty or adultery, and had been most at fault,
then the trial court is bound to exercise its discretion in favor of the defendant. Such is not the
law, and appellant concedes that the case of George v. George, 56 Nev. 12, 41 P.2d 1059, 97
A.L.R. 983, lays down a contrary rule. She urges, however, that the rule announced in that
case is too harsh and should not be allowed to stand. Such an argument does not impress us.
The holding in the case of George v. George, supra, is sound, and to hold otherwise would
confine the operation of the three-year cause of action to those who are least at fault. If
comparative rectitude were to be the determining factor, then the enactment of the three-year
separation statute would have been an idle gesture. Cases based on the three-year separation
statute often come before a trial court, where the conduct of the plaintiff has been such as not
to commend itself to the court, but the court may determine that the interests of society
outweigh the convenience or desire of a contesting spouse, and thus be impelled to separate
the parties.
Appellant complains of the court's failure to make findings with reference to the other
issues raised by both parties. The same complaint was made in the Kohlsaat case, but the
suggestion that this was error was there rejected by this court, which held that since the main
consideration for the granting of the decree was the finding that the three years' separation
had occurred and that in all probability the spouses could not live together in such a manner
as to be for their best interests and the best interest of society, proposed findings on other
issues were based on subordinate facts, and the failure to make findings thereon was not a
cause for reversal.
The present situation makes even a stronger case than Kohlsaat. There this court ruled that
it was proper to grant the decree for three years' separation even if the defendant establishes
to the satisfaction of the court that the plaintiff had been guilty of desertion, extreme cruelty,
or adultery. The trial court in this case expressed dissatisfaction with the wife's testimony,
the feeling that she had not been frank with the court, and the court's conclusion that the
wife's own actions had driven the husband from his home to seek other companionship.
the feeling that she had not been frank with the court, and the court's conclusion that the
wife's own actions had driven the husband from his home to seek other companionship. The
evidence did not compel a finding of either cruelty or desertion on the part of the plaintiff
husband, nor did it, on the other hand, compel a finding of cruelty on the part of the wife.
Our conclusion upon the first assignment is that there was no error in the court's exercise
of its discretion in granting respondent a decree of divorce on the ground of three years'
separation of the parties and in refusing to make findings on the other issues. This is not to
say that in no conceivable case could a court exercise its discretion by denying a divorce upon
this ground.
[Headnote 2]
(2) We feel that the court was in error in its refusal to award alimony to appellant. The
parties were married in Michigan in 1939 and continued to reside there. In 1953 and 1954
marital difficulties arose. While these apparently grew out of the husband's attention to
another woman, the trial court was of the opinion that this situation was in turn caused by the
wife's attitude toward the husband. The parties separated in January of 1954 and for a period
of approximately a year the husband voluntarily sent the wife sums for her support of $50 to
$75 every two weeks. In January 1955 the husband sued for divorce in Michigan and the
Michigan court awarded temporary alimony to the wife in the sum of $135 a month. This
amount the husband paid for about two years. In September of 1957 the Michigan court
denied the husband's prayer for divorce and in November of that year the husband moved to
Elko and on January 15, 1958 filed his complaint there for a divorce. The wife's motion for
allowances was denied, possibly for the reason that the husband delivered to the wife's
attorney a deed conveying to appellant the premises that had been occupied by the parties as
their home in Michigan valued at some $5,000. That home is a rebuilt log structure now
requiring repairs to the roof, and repairs to the water system (damaged by freezing of the
pipes), which repairs will cost some $375.
freezing of the pipes), which repairs will cost some $375. At time of trial the wife was 56
years of age, the husband 48 years. The wife is in general poor health and suffers from severe
degenerative arthritis of the left ankle and arthritis of the left wrist. She has no provision or
prospects for employment and has only an eighth grade education. She had not worked during
marriage, is presently in debt, and has no sources of income other than charity of friends and
relatives. She owns a 1955 Chevrolet car subject to monthly payments of $42.40, which a
niece had been paying for her. The husband had been employed in Michigan as a radio sports
announcer and advertising salesman in which he earned some $4,500 a year or more. At the
trial it developed that he expected to return to similar work, although he was then earning $8
a day as a handy man or kitchen employee. Under such a situation the necessities of the wife
for her support and the ability of the husband to contribute a reasonable sum definitely
appear. While we agree with the court's conclusion that a woman is not entitled to alimony
just because she has been his wife, we cannot agree with the court's other conclusion that she
is not entitled to support unless she has something obligating her such as with the care and
support of children or obligations imposed on her as a result of her marriage such as
illness or becoming disabled during her life with him. At the time of the separation the
parties had been married some 15 years, at the time of the trial some 19 years.
The community home above referred to is situate in the country seven miles from the
nearest shopping center, with no transportation available other than by private car. Under
these circumstances we cannot say that the ownership of a three-year-old Chevrolet for the
transportation of a woman of the age of 56 years suffering from severe degenerative arthritis
of the left ankle must be characterized as an extravagance, as stated by the trial court.
[Headnote 3]
This court cannot in the first instance fix the amount properly to be allowed for her
support.
The judgment of divorce in favor of respondent is affirmed. Those portions of the
judgment and the orders following judgment which denied alimony to appellant are reversed,
and the case is hereby remanded to the district court with instructions to amend the judgment
by providing a reasonable amount for the wife's support. Appellant will recover her costs in
this court.
____________
75 Nev. 229, 229 (1959) Lockett v. Lockett
CURLEY LOCKETT, Appellant, v.
EDNA MAE LOCKETT, Respondent.
No. 4140
April 22, 1959 338 P.2d 77
Department No. 2.
Action by husband for divorce. From that portion of the decree in the lower court which
disposes of community property of the parties, the husband appealed. The Supreme Court,
Per Curiam, held that the evidence did not establish an abuse of discretion in awarding
two-thirds of the community estate to the wife and that where it was apparent that the court
meant to award an automobile to the husband, the decree would be modified to that effect.
Decree modified.
George Rudiak and Elmer M. Gunderson, of Las Vegas, for Appellant.
William G. Ruymann, of Las Vegas, for Respondent.
1. Divorce.
In divorce action, where husband contended that the court in awarding two-thirds of the community estate
to the wife did not give due consideration to the statutory factors, the record failed to establish that the trial
court did not properly consider all pertinent factors in disposing of community property of the parties.
NRS 125.150.
Claim that the trial court improperly disregarded the court rule in setting a matter for trial, was not
reviewable where the record did not disclose that any objection ever was made to the trial setting or to the
hearing of the trial at the time set and the appellant apparently proceeded to trial without protest so that any
deficiency of notice was waived. District Court Rules, Rule II, subd. 5.
3. Divorce.
In action for divorce where automobile alleged to be community property was not disposed of in the
written decree but it was apparent that the court meant to award such item to the husband, modification of
the decree to that effect would be proper.
OPINION
Per Curiam:
The husband in a divorce action appeals from that portion of the divorce decree which
disposes of the community property of the parties. He contends that the decree made a
disproportionate award of property to the wife and in this respect amounted to an abuse of
discretion.
NRS 125.150 provides in part, In granting a divorce the court * * * shall make such
disposition of the community property of the parties as shall appear just and equitable, having
regard to the respective merits of the parties and to the condition in which they will be left by
such divorce, and to the party through whom the property was acquired, and to the burdens, if
any, imposed upon it, for the benefit of the children.
[Headnote 1]
The husband contends that the court awarded two-thirds of the community estate to the
wife and one-third to the husband; that in so doing the court did not give due consideration
to the factors specified in the quoted section.
not give due consideration to the factors specified in the quoted section.
Deficiencies in the record defeat this contention. The trial was not reported. The parties
stipulated in effect that the record might be supplied by an agreed statement of facts
supplemented by district court order settling and establishing such facts as were not agreed to.
The trial court refused to settle any facts upon the ground that its recollection was indistinct.
From the facts agreed to and minute entries there is nothing to establish that the trial court did
not properly consider all pertinent factors in disposing of the community property of the
parties. The record, therefore, fails to show any abuse of discretion in this regard.
[Headnote 2]
Appellant further contends that the trial court improperly disregarded Rule II(5) of the
district court rules in setting this matter for trial. That rule provides, Civil cases at issue upon
questions of fact may be set for trial on the issues of fact on any law day, five days' previous
written notice of such application having been given by the moving party to the opposite
party or parties. * * *
The record in its unsatisfactory state does not disclose that any objection ever was made to
the trial setting, or to the hearing of the trial at the time set. Appellant apparently proceeded to
trial without protest and any deficiency of notice, accordingly, was waived.
[Headnote 3]
Appellant contends finally that the court neglected to make a complete disposition of the
community property of the parties. A Pontiac automobile, alleged in the wife's complaint to
be community property (and conceded to be such by the husband) was not disposed of in the
written decree. It is clear from the minute order of the court, following trial, however, that the
court meant to award this item of property to the appellant husband. The fact that the written
decree was silent in this respect would appear to be mere oversight.
Under the circumstances a modification of the decree would seem to be proper, and a remand
for action by the trial court would seem to be unnecessary and an undue complication of
proceedings.
It Is Ordered that the decree in this matter be modified to provide that the 1956 Pontiac
automobile alleged in respondent's complaint to be community property of the parties be
awarded to appellant husband. As so modified, decree affirmed with costs to respondent.
____________
75 Nev. 232, 232 (1959) Nev. Management Co. v. Jack
NEVADA MANAGEMENT COMPANY, a Nevada Corporation,
Appellant, v. ALTON A. JACK, Respondent.
No. 4141
April 23, 1959 338 P.2d 71
Suit for judgment declaring plaintiff owner of certain logs, for a determination of storage
charges due, if any, and for certain injunctive relief. The lower court entered an order granting
plaintiff a preliminary injunction and defendant appealed. The Supreme Court, McNamee, J.,
held that complaint alleging that plaintiff was owner of certain logs stored on premises
occupied by defendant and that defendant sold the logs at a public sale to itself in partial
satisfaction of its claim against plaintiff based on unpaid storage on the logs, that the value of
the logs exceeded the amount for which they were sold, and that the sheriff had not yet given
the defendant a bill of sale for the logs, stated a cause of action for a declaratory judgment, for
or against plaintiff's contention of ownership.
Affirmed.
Stewart, Horton and Campbell, of Reno, for Appellant.
Leonard T. Howard, of Reno, for Respondent.
1. Declaratory Judgment.
Complaint alleging that plaintiff was owner of certain logs stored on premises occupied by defendant and
that defendant sold the logs at a public sale to itself in partial satisfaction of its claim against plaintiff based
on unpaid storage on the logs, that the value of the logs exceeded the amount for which they were sold, and
that the sheriff had not yet given the defendant a bill of sale for the logs, stated a cause of action for a
declaratory judgment for or against plaintiff's contention of ownership.
Under the Rules of Civil Procedure, fact that a plaintiff could have availed himself of other remedies in
the nature of trover and replevin did not defeat his right to sue for a declaratory judgment in a case where
declaratory relief was proper. NRCP 57.
An injunction is a proper provisional remedy in an action for a declaratory judgment.
A prayer for equitable relief may be coupled with a suit for declaratory judgment where the two remedies
are ancillary to each other.
Where plaintiff in an action for a declaratory judgment as to his ownership of certain logs sought
injunctive relief to maintain the status quo of the logs until there was a determination of the rights of the
parties with respect thereto, such injunctive relief was incidental to the declaratory relief, and was properly
coupled with prayer for a declaratory judgment.
OPINION
Jack (respondent herein) filed suit for declaratory judgment alleging that he was the owner
of certain logs located in Truckee, California, on premises occupied by defendant (appellant
company); that the company on February 26, 1958 by letter had demanded that plaintiff
remove the logs by March 1, 1958 or in the alternative pay it $100 a day storage; that Jack
received this letter February 27; that there were 200,000 board feet of logs covered by
several feet of snow and it was practically impossible to remove them on such short
notice; that oral negotiations to remove the logs failed, due to the amount the company
claimed for storage already accrued; that Jack thereupon on May 20, 195S had given
written notice to the company that he was willing to remove the logs if allowed so to do;
that the company, however, after published notice sold the logs at public sale to itself for
$1,500 in partial satisfaction of its claim against plaintiff of $S,600 {storage for S6 days at
$100 a day); that the value of the logs is $4,000; that the balance of the company's claim
against plaintiff is $7,104.S5; that sheriff had not yet given the company a bill of sale for
the logs; that unless the company is restrained, the company will cause the logs to be
sold, encumbered, or otherwise hypothecated so as to deprive respondent of his right and
title to said property.
board feet of logs covered by several feet of snow and it was practically impossible to remove
them on such short notice; that oral negotiations to remove the logs failed, due to the amount
the company claimed for storage already accrued; that Jack thereupon on May 20, 1958 had
given written notice to the company that he was willing to remove the logs if allowed so to
do; that the company, however, after published notice sold the logs at public sale to itself for
$1,500 in partial satisfaction of its claim against plaintiff of $8,600 (storage for 86 days at
$100 a day); that the value of the logs is $4,000; that the balance of the company's claim
against plaintiff is $7,104.85; that sheriff had not yet given the company a bill of sale for the
logs; that unless the company is restrained, the company will cause the logs to be sold,
encumbered, or otherwise hypothecated so as to deprive respondent of his right and title to
said property.
Prayer is for an injunction and for a declaratory judgment declaring that plaintiff has no
legal obligation to pay storage or in the alternative that the court assess reasonable damages
for storage.
A temporary restraining order was issued without notice upon plaintiff depositing a $4,000
bond restraining the company from hypothecating or changing form or nature of the logs or
from taking any steps to complete any claimed sale of the same.
Thereafter upon notice and hearing, a preliminary injunction was issued and the bond
increased to $8,000.
Appeal is from the order granting the preliminary injunction.
We are here concerned only with that part of the preliminary injunction which enjoins the
company from transferring, encumbering, in any respect hypothecating, or changing the
form or nature of the logs, and from taking any steps to complete any claimed sale by
reason of storage or rent of the logs.
Three issues are presented for determination:
[Headnote 1]
1. Is the complaint sufficient to sustain a judgment for declaratory relief? While the
prayer of the complaint would suggest that the rights to be adjudicated were restricted to
the matter of storage charges, the real dispute between the parties as appears from the
briefs and oral argument concerns the ownership of the logs.
While the prayer of the complaint would suggest that the rights to be adjudicated were
restricted to the matter of storage charges, the real dispute between the parties as appears
from the briefs and oral argument concerns the ownership of the logs.
In the case of Kress v. Corey, 65 Nev. 1, 189 P.2d 352, 364 (1948), the requirements for
declaratory relief were summarized as follows: (1) there must exist a justiciable controversy;
that is to say, a controversy in which a claim of right is asserted against one who has an
interest in contesting it; (2) the controversy must be between persons whose interests are
adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy,
that is to say, a legally protectible interest; and (4) the issue involved in the controversy must
be ripe for judicial determination.
We have no hesitation in holding that the respondent has presented the facts and
conditions necessary to give him his statutory right to have the court determine by declaratory
judgment for or against his contention of ownership.
It was a defect of the judicial procedure which developed under the common law that the
doors of the courts were invitingly opened to a plaintiff whose legal rights had already been
violated, but were rigidly closed upon a party who did not wish to violate the rights of another
nor to have his own rights violated, thus compelling him, where a controversy arose with his
fellow, to run the risk of a violation of his fellow's rights or to wait until the anticipated
wrong had been done to himself before an adjudication of their differences could be obtained.
Thus was a penalty placed upon the party who wished to act lawfully and in good faith which
the statute providing for declaratory relief has gone far to remove. We feel that the courts
should construe the statute with reasonable liberality so that, * * * it may not lose a large part
of the value which, upon its enactment was supposed to attach to it.' Tolle v. Struve, 124
Cal.App. 263, 12 P.2d 61, 63.
[Headnote 2]
Since the decision of Kress v. Corey, supra, which cited with approval Tolle v. Struve,
supra, the applicability of our declaratory judgment statutes has been extended by the
Nevada Rules of Civil Procedure, effective January 1, 1953, and under these rules the fact
that respondent could have availed himself of other remedies in the nature of trover and
replevin does not defeat his right to sue for declaratory judgment in cases where
declaratory relief is proper.
cited with approval Tolle v. Struve, supra, the applicability of our declaratory judgment
statutes has been extended by the Nevada Rules of Civil Procedure, effective January 1, 1953,
and under these rules the fact that respondent could have availed himself of other remedies in
the nature of trover and replevin does not defeat his right to sue for declaratory judgment in
cases where declaratory relief is proper. NRCP 57.
[Headnote 3]
2. Is an injunction a proper provisional remedy in a procedure for obtaining a declaratory
judgment?
This question has already been answered affirmatively by this court in Kress v. Corey,
supra, and in Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103, where we held that injunctive
relief may properly be coupled with a prayer for a declaratory judgment.
[Headnotes 4, 5]
3. If a suit for declaratory judgment can be coupled with a prayer for equitable relief, were
the two ancillary to each other in the present case?
Appellant contends that the injunction is not incidental to the declaratory relief sought. He
states that by incidental he means in aid of the declaratory relief sought. Possibly there
would be some merit to his contention if the only declaratory relief sought was with reference
to storage charges. His general prayer, however, is for such other relief as * * * seems
proper, and as hereinabove stated, the real dispute concerns the ownership of the logs. It is
apparent, therefore, that the injunctive relief is in aid of the declaratory judgment sought,
because respondent had the right to seek an order which would maintain the status quo of the
logs until there is a determination of the rights of the parties with respect thereto.
Affirmed.
____________
75 Nev. 237, 237 (1959) Engebretson v. Engebretson
OSCAR C. ENGEBRETSON, Appellant, v.
ETHELYN E. ENGEBRETSON, Respondent.
No. 4142
April 28, 1959 338 P.2d 75
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge,
Department No. 1.
Wife brought suit for divorce. The lower court entered judgment of divorce, and the
husband appealed from that part of the judgment which awarded accumulated alimony,
pendente lite, under an earlier order for payment of $100 per month. The Supreme Court,
McNamee, J., held that statute providing that in any suit for divorce court may, in its
discretion, require husband to pay such sums as may be necessary for wife's support during
pendency of such suit, does not limit awards for temporary alimony to those cases where wife
is destitute or practically so, but contemplates such awards when facts, circumstances, and
situations of parties are such that, in fairness to wife, she should be given financial assistance
for her support during pendency of action, and that award of temporary alimony to wife, who
had no income sufficient for her support, at time when husband was in control of all
income-producing community property of parties was a proper exercise of trial court's
discretion under statute, even though wife had separate property, which could have been
hypothecated by her for her temporary support.
Affirmed.
See also, 73 Nev. 19, 21, 307 P.2d 115, 311 P.2d 412.
Royal A. Stewart, Richard W. Horton, Richard G. Campbell and Raymond B. Free, of
Reno, for Appellant.
Diehl and Recanzone, of Fallon, for Respondent.
1. Divorce.
Statute providing that in any suit for divorce court may, in its discretion, require husband to pay such
sums as may be necessary for wife's support during pendency of such suit, does not limit awards for
temporary alimony to those cases where wife is destitute or practically so, but contemplates
such awards when facts, circumstances, and situations of parties are such that, in
fairness to wife, she should be given financial assistance for her support during
pendency of action.
wife is destitute or practically so, but contemplates such awards when facts, circumstances, and situations
of parties are such that, in fairness to wife, she should be given financial assistance for her support during
pendency of action. NRS 125.040.
2. Divorce.
Under statute providing that in any suit for divorce court may, in its discretion, require husband to pay
such sums as may be necessary for wife's support during pendency of such suit, temporary alimony will not
be denied because wife possesses separate estate, where income therefrom is not sufficient for her support,
and she need not resort to the corpus of her estate before calling on that of her husband. NRS 125.040.
3. Divorce.
Right to temporary alimony rests largely in discretion of court. NRS 125.040.
4. Divorce.
Award of temporary alimony to wife, who had no income sufficient for her support, at time when
husband was in control of all income-producing community property of parties was a proper exercise of
trial court's discretion under statute, even though wife had separate property, which could have been
hypothecated by her for her temporary support. NRS 125.040.
OPINION
This is an appeal from that part of the judgment of divorce which awards $2,150
accumulated alimony, pendente lite, under an earlier order for the payment of $100 per
month.
A similar appeal in this matter was attempted before, but this court dismissed the same as
premature. Engebretson v. Engebretson, 73 Nev. 19, 307 P.2d 115.
A transcript of the evidence received by the trial court at the hearing on the motion is
contained in the record on appeal and there is no material conflict.
This evidence shows that the wife owned as her separate property and was in possession of
the following:
(a) Texas Company stock worth more than $2,200 with an income of $120 a year.
(b) A bank account in the sum of $280.89, which was the balance remaining out of a
$1,000 unsecured bank loan.
(c) An 8/42nd interest in the Fallon Garage, plus a credit in her drawing account with said
garage of $5,564, which she was not then able to draw on.
(d) Residential real property of the value of $10,000, unencumbered, producing no income.
In addition to the foregoing she had in her possession a 1955 Bel Air sedan which was
community property registered in her husband's name.
There was other property of the parties consisting of a ranch (and certain produce thereon),
which had been the family home and which is alleged to be community property, although
held by the parties in joint tenancy. This ranch was in the possession of the husband and
constituted his sole source of income. At the time of the court's order there were at the ranch
70 tons of salable hay of the value of $1,750.
NRS 125.040 provides that in any suit for divorce the court may, in its discretion, * * *
require the husband to pay such sums as may be necessary * * * for the wife's support * * *
during the pendency of such suit.
Appellant husband contends that under this statute an allowance for temporary alimony is
based on the necessity of the wife, and that the evidence clearly shows that the wife is not in
necessitous circumstances.
Respondent wife contends that the law does not require her to finance her divorce case
from her own separate funds while the husband pays for his litigation out of the joint or
community properties of the parties.
It seems strange that never before have we been called upon to interpret this statute with
reference to temporary support in connection with a case in which the facts disclose that the
wife has some means of her own.
In Black v. Black, 47 Nev. 346, 221 P. 239, 240, we stated, The rule requiring the
husband to pay the wife sufficient to enable her to maintain herself and meet the expenses of
her suit or defense is based on necessity to prevent a failure of justice, and will not be
required unless it appears that the wife is destitute of the means to be employed for such
purpose."
unless it appears that the wife is destitute of the means to be employed for such purpose.
This case, however, concerned the allowance of attorney fees on appeal only and did not
determine any rights with respect to temporary alimony.
[Headnote 1]
In our opinion, the statute does not limit awards for temporary alimony to those cases
where the wife is destitute or practically so. It contemplates such awards when the facts,
circumstances, and situation of the parties are such that in fairness to the wife she should be
given financial assistance for her support during the pendency of the action.
[Headnote 2]
Temporary alimony will not be denied because the wife possesses a separate estate where
the income therefrom is not sufficient for her support, and she need not resort to the corpus of
her estate before calling on that of her husband. 27 C.J.S., sec. 208, p. 898. Accord: Nelson,
Divorce and Annulment, sec. 12.27, n. 54, 55; Keezer, Marriage and Divorce, 3d Ed. 1946,
secs. 591, 604; 17 Am.Jur. Divorce and Separation, sec. 623. See note, 15 A.L.R. 781.
Appellant concedes frankly that this is the rule in California.
1
He insists, however, that
Nevada has adopted a contrary rule as established by the cases of Lake v. Lake, 16 Nev. 363;
Effinger v. Effinger, 48 Nev. 205, 228 P. 615, 239 P. 801; Fleming v. Fleming, 58 Nev. 179;
72 P.2d 1110; Baker v. Baker, 59 Nev. 163, 87 P.2d 800, 96 P.2d 200; Cunningham v.
Cunningham, 60 Nev. 191, 102 P.2d 94, 105 P.2d 398; Black v. Black, supra.
As pointed out above, the statement in Black v. Black, supra, with reference to the wife's
maintenance, was dictum. In all of the other cases mentioned, the condition of necessitous
circumstances as alone justifying an allowance had reference only to suit money and not
to temporary alimony, and they do not support appellant's contention.
____________________

1
Mauldin v. Mauldin, Cal.App., 275 P.2d 113; Loeb v. Loeb, 84 Cal.App.2d 141, 190 P.2d 246, 248;
Bernheimer v. Bernheimer, 103 Cal.App.2d 643, 230 P.2d 17; Farrar v. Farrar, 45 Cal.App. 584, 586, 188 P.
289.
tion of necessitous circumstances as alone justifying an allowance had reference only to suit
money and not to temporary alimony, and they do not support appellant's contention.
[Headnote 3]
The right to temporary alimony rests largely in the discretion of the courts. 25 C.J.S., p.
890, n. 1; 19 C.J. 206, n. 69.
[Headnote 4]
We feel that the award of temporary alimony to the wife in this case who had no income
sufficient for her support at a time when the husband was in control of all of the
income-producing community property of the parties was a proper exercise of the trial court's
discretion even though the wife had separate property which could have been hypothecated by
her for her temporary support.
Merrill, C. J. and Badt, J., concur.
____________
75 Nev. 241, 241 (1959) Walker v. Shrake
CLYDE WALKER, LARRY C. ATKINSON, HAROLD BURGESS, BUCK EVANS,
GILBERT W. EKLUND, JOSEPH FOX, DALE GRAEMES, CHESTER E. HUFFMAN,
JULIUS ILCHIK, Jr., M. O. INGLE, CALVIN J. LICHTENWALTER and FRED
KOEHLER, Appellants, v. ROBERT W. SHRAKE, CHARLES L. MARTIN and OLLIE
MAE MARTIN, and RAYMOND LATOUR, Respondents.
No. 4145
May 12, 1959 339 P.2d 124
Department No. 3.
Action for declaratory judgment by all parties claiming interest in lands of maker of note
which was secured by mortgage on 5 percent of land to payees.
by mortgage on 5 percent of land to payees. The trial court rendered judgment in favor of
maker; payees, and vendee to whom maker sold 25 percent interest in land free and clear of
all assignments, and assignee of 1 percent interest in land and assignees of part of proceeds to
result from sale of maker's interest as security for maker's obligations, appeal. The Supreme
Court, McNamee, J., held that where payees obtained judgment on note secured by mortgage
of 5 percent of land, obligation to payees became merged in judgment, and satisfaction of
judgment by maker's giving of second promissory note for twice amount of judgment in
consideration for promise that payees would not take out execution on judgment but would
file satisfaction of judgment destroyed security incidental to first note.
Reversed in part and remanded with directions.
Robert E. Jones, of Las Vegas, Paul D. Laxalt, of Carson City, and Peter E. Giannini, of
Los Angeles, California, for Appellants.
George E. Franklin, Jr., of Las Vegas, and Guild, Busey & Guild, of Reno, for
Respondents Charles L. Martin and Ollie Mae Martin.
Charles L. Garner, of Las Vegas, for Respondent Raymond Latour.
1. Novation.
Where payees obtained judgment against maker of note on January 6, 1956 and on February 15, 1956,
entered into written contract under which maker and guarantor executed note for twice the amount of
judgment in consideration of payees' promise that payees would not take out execution under judgment but
would file satisfaction thereof, execution of contract and delivery of second note were intended to and did
substitute new obligation for judgment debt, thereby satisfying judgment in fact if not of record by
novation.
2. Execution.
A sale under judgment that has been satisfied is void and conveys no title even though judgment has not
been satisfied of record.
3. Judgment; Mortgages; Novation.
Where payees of note secured by mortgage obtained judgment on note, obligation under note became
merged in judgment, and satisfaction of judgment by maker's giving of second note for twice the amount of
judgment in consideration for promise that payees would not take out execution of judgment but would file
satisfaction thereof, destroyed security incidental to first note.
In declaratory judgment action wherein everyone was party who claimed interest in land owned by maker
of note which was secured by mortgage on five percent of land, every party could contest validity of
execution sale, at which payees, who had obtained judgment on note, purchased land.
5. Public Lands.
Applicant, who pursuant to written contract, caused application to be made for acquisition from federal
government of certain lands had equitable interest in the lands.
6. Liens.
Where owner of equitable interest in land assigned part of such interest and part of proceeds to result
from sale of such interest as security for his obligations, equitable liens were created on land itself.
7. Public Lands.
Where applicant for acquisition from federal government of certain lands had sold 25 percent of his
interest in land to vendee in consideration of $10 and applicant was later under stipulated judgment
awarded 17 1/2 percent interest in land as his share, vendee was owner of 25 percent of 17 1/2 percent
interest, free and clear of claim by party, who had before the sale been assigned 1 percent of the applicant's
interest but had never recorded promissory note on which assignment was written, and of claims of other
parties who had after the sale been assigned proceeds to result from sale of applicant's interest as security
for his obligations to them.
8. Public Lands.
Where applicant for acquisition from federal government of certain lands assigned on back of promissory
note part of such interest in land and assigned part of proceeds to result from sale of such interest as
security for his obligations, and applicant was later under stipulated judgment awarded 17 1/2 percent
interest as his share, 25 percent of which he had sold free and clear of assignments, as to remaining 75
percent assignees had lien on land for payment of amount of secured obligations.
9. Public Lands.
Where owner of equitable interest in land assigned between 1950 and 1955 part of such interest and part
of proceeds to result from sale of such interest as security for his obligations, but there had been total
failure of satisfaction for obligations, reasonable time had elapsed since creation of liens by assignments,
and foreclosure would be ordered.
10. Liens.
Upon foreclosure sale of owner's interest in land, if proceeds would be insufficient to satisfy all liens, in
absence of agreements to prorate, priorities of lienholders would be established as of date of recordation of
each instrument creating lien, but if proceeds would be sufficient to satisfy all liens, owner would be
entitled to such proceeds as would remain undistributed.
OPINION
Complaint was filed by appellants for partition of certain real estate. Thereafter all the
parties stipulated that the action would be deemed an action for declaratory relief and
amended pleadings were filed to accomplish such purpose.
1

There is no dispute as to any of the facts; they are admitted as alleged in the amended
complaint and the trial court made its findings in accordance therewith.
Respondent Shrake and others, pursuant to written contract, caused application to be made
for the acquisition from the federal government of certain lands in which he was later under a
stipulated judgment (dated May 18, 1955) in a separate action, awarded a 17 1/2 percent
interest as his share.
Before the date of said judgment he entered into the following separate transactions with
the several appellants and respondents:
1. Burgess: Shrake assigned to Burgess 1 percent of his interest in the land to be acquired.
This was written on the back of Shrake's note to Burgess dated April 14, 1950 for $1,800 plus
interest. This instrument was never recorded.
2. Martin and Martin: Shrake by an acknowledged instrument in writing dated July 12,
1950 and recorded February 19, 1951 assigned to the Martins 5 percent of his interest in said
land as security for his note to them of said date in the sum of $15,000.
3. Latour: Shrake by an acknowledged instrument in writing dated August 3, 1953 and
recorded September 2S, 1953 assigned to Latour 25 percent of his interest in said land "in
consideration of $10.00."
____________________

1
Counsel for the Martins, although served with a copy of the amended complaint, failed to file any pleading
thereto.
writing dated August 3, 1953 and recorded September 28, 1953 assigned to Latour 25 percent
of his interest in said land in consideration of $10.00. This was not a mortgage but an actual
sale.
4. Koehler, Huffman, Graemes, Lichtenwalter, Eklund, Atkinson: Shrake by
acknowledged instruments in writing each dated October 13, 1953 and each recorded October
16, 1953 (except the Huffman instrument was recorded October 15, 1953) assigned to:
Koehler $3,000 plus interest, Huffman $25,000, Graemes $7,000, Lichtenwalter $500,
Eklund $4,350, Atkinson $3,600of the moneys to become due him out of his share of said
lands.
5. Fox, Ilchik, Ingle: Shrake by acknowledged instruments in writing each dated and
recorded October 16, 1953 assigned to: Ingle $1,000, Fox $4,100 plus interest, Ilchik $1,600
of said moneys.
6. Evans, Walker: Shrake by acknowledged instruments in writing each dated January 31,
1955 and recorded February 2, 1955 assigned to: Evans $6,792.47, Walker $1,000 of said
moneys.
2

On March 3, 1955 the Martins, not having been paid, sued Shrake relative to the said
assignment of July 12, 1950. Judgment of dismissal was entered on the ground that the
assignment was in legal effect a mortgage and the only remedy for relief was foreclosure
under NRS 40.430. Thereafter the Martins, still disregarding the provisions of NRS 40.430,
filed a new action, being an ordinary complaint on the promissory note of July 12, 1950. No
mention was made in the complaint that the note was secured by an assignment (mortgage) of
equal date. The answer without alleging any defense merely denied the reasonableness of the
prayed-for attorney fees. The case was submitted to the court on the pleadings, and the court
entered judgment on January 6, 1956 for the amount of the note, interest, attorney fees, and
costs which totaled $22,741.10.
On February 15, 1956 the Martins entered into a written contract with Shrake and William
J. Moore under which Shrake with Moore as guarantor executed a promissory note for
twice the amount of said judgment {$45,4S2.20) payable $22,741.10 on the 15th day of
August 1956 and a like payment on the 15th day of February 1957 in consideration of the
promise of Martins that they would not take out execution under said judgment and
would file satisfaction of judgment.
____________________

2
Walker's instrument in addition to the $1,000 assignment assigned to Walker 2 percent of my right title or
interest in and to [the said lands] whichever sum is greater.
under which Shrake with Moore as guarantor executed a promissory note for twice the
amount of said judgment ($45,482.20) payable $22,741.10 on the 15th day of August 1956
and a like payment on the 15th day of February 1957 in consideration of the promise of
Martins that they would not take out execution under said judgment and would file
satisfaction of judgment. Although the said note for $45,482.20 was executed and delivered
to the Martins, they failed to enter satisfaction of the said judgment for $22,741.10. It is the
contention of the Martins that under this agreement they were not required to enter
satisfaction of the judgment until the note of February 15, 1956 was paid in full. On the other
hand the appellants contend that the Martins were obligated to enter satisfaction upon the
execution and delivery of the said note. After the first payment due under the $45,482.20 note
was not made, the Martins declared the whole amount due and on October 5, 1956
commenced action against Shrake and Moore on this note. This action is still pending.
On April 22, 1957 the Martins caused to be issued a writ of execution under said judgment
of $22,741.10, a levy was made on all of Shrake's 17 1/2 percent interest in and to the said
lands obtained from the federal government and the Martins purchased this interest at the
sheriff's sale for $24,840, the amount of their judgment, interest thereon, and costs of sale.
The appellants contend that the execution sale was invalid for the reason that it was based
on a judgment that had been satisfied (in effect if not of record).
[Headnote 1]
It is apparent to us and we so hold that the execution of the agreement of February 15,
1956 and the execution and delivery of the promissory note of $45,482.20 guaranteed by
William J. Moore of even date, were simultaneous acts and were intended by the parties to
and did substitute the new obligation for the judgment debt, thereby satisfying the judgment
in fact if not of record. Williams v. Crusader Discount Corp., 75 Nev. 67, 334 P.2d 843. The
fact that such was the intention of the Martins is illustrated by their commencing action on
the new obligation against Shrake and Moore some two months after the default in
payment thereunder.
of the Martins is illustrated by their commencing action on the new obligation against Shrake
and Moore some two months after the default in payment thereunder.
[Headnote 2]
A sale under a judgment that has been satisfied is void and conveys no title even though
the judgment has not been satisfied of record. Pope v. Benster, 42 Neb. 304, 60 N.W. 561, 47
Am.St.Rep. 703; Mayor and Council of City of Millen v. Clark, 193 Ga. 132, 17 S.E.2d 742.
While in some jurisdictions, especially in the earlier decisions, the rule is laid down that a
bona fide purchaser without notice will acquire a good title, even though the execution is paid
off or the judgment satisfied before sale, where the satisfaction does not appear of record at
the time of or before the sale, the doctrine of the more numerous and more recent decisions is
that the satisfaction of the judgment prior to an execution sale will render such sale void, and
the purchaser will take no title thereunder, even though he bought in good faith and without
notice. In any event, no title passes if the purchaser had actual or constructive notice. 33
C.J.S., sec. 285, p. 568. Accord: 21 Am.Jur., Executions, sec. 505.
Some of those cases seeming to hold contrary have protected the purchaser for value
without knowledge of the satisfaction of the judgment. The Martins of course would not
come within such limitation of the rule.
[Headnote 3]
Inasmuch as the Martin judgment was satisfied by novation as aforesaid and the judgment
had been based on a note secured by a portion of Shrake's interest in the said lands, the
obligation under the note became merged in the judgment, and the satisfaction of the
judgment destroyed the security incidental to said obligation.
[Headnote 4]
This being an action for declaratory relief, and all the parties who claim an interest in the
said lands being parties hereto either as appellants or respondents, the contention that only
Shrake could contest the validity of the execution sale is without merit.3
contention that only Shrake could contest the validity of the execution sale is without merit.
3

We thus conclude that the Martins have no interest in the said lands, having lost their lien
by novation and having acquired no interest through the void sale under execution.
We now come to a determination of the legal effect of the various assignments from
Shrake to appellants, which according to the Martins is the sole issue involved in this appeal.
The appellants contend that the assignments were meant to create a charge against the said
lands and with this contention respondents Shrake and Latour concur. The Martins'
contention is to the contrary. Because we have determined that the Martins have no interest in
the said lands, it would be unnecessary to determine this issue were it not for the fact that the
appellants are entitled to a determination in this action of the nature and extent of their
several interests.
[Headnotes 5, 6]
At the times Shrake executed the various instruments to the appellants, he had only an
equitable interest in the said lands. Assignments of a part of such interest or of the proceeds
to result from a sale of the same as security for assignor's obligations created equitable liens
against the land itself. McColgan v. Bank of California, 208 Cal. 329, 281 P. 381, 65 A.L.R.
1075; Tinsley v. Durfey, 99 Ill.App. 239, p. 242-3. All of the interested parties are in accord
with this conclusion, and there is no reason to pursue the matter further. The nature and
extent of the rights of appellants, and of respondents Latour and Shrake are therefore as
hereinafter set forth.
[Headnote 7]
Latour is the owner of 25 percent of Shrake's 17 1/2 percent interest in said land free and
clear of any claim of any of the parties hereto.
____________________

3
Shrake did contest the validity of the execution sale in the lower court. Shrake, although a party to the
proceedings, is not represented by counsel on this appeal.
[Headnote 8]
As against the remaining 75 percent of Shrake's interest in said land, liens in favor of the
appellants are determined as follows:
Huffman for the payment of $25,000.
Graemes for the payment of $7,000.
Lichtenwalter for the payment of $500.
Atkinson for the payment of $3,600.
Eklund for the payment of $4,350.
Koehler for the payment of $3,000 together with interest at 6 percent per annum from
November 1946.
Ilchik for the payment of $1,600.
Ingle for the payment of $1,000.
Burgess for the payment of $1,800 together with interest at 6 percent per annum from
April 14, 1950.
Fox for the payment of $4,100 together with interest at 6 percent per annum from January
5, 1950.
Evans for the payment of $6,792.47.
Walker for the payment of $1,000, or 2 percent of the sale price, whichever is greater.
[Headnote 9]
Appellants in their oral arguments have asked that a decree of foreclosure be ordered as to
the said 75 percent of Shrake's interest. The appellants in advancing their various amounts to
Shrake assumed from Shrake's representations to them that the said lands would be sold
within a reasonable time. A reasonable time having elapsed since the creation of appellants'
liens, and there being a total failure of satisfaction thereof, we believe that a foreclosure as
requested can properly be ordered herein under the general prayer of the amended complaint.
[Headnote 10]
If upon the sale of said 75 percent of Shrake's interest the proceeds therefrom are
insufficient to satisfy all of said liens, in the absence of an agreement among the appellants to
prorate the proceeds, the priorities of each appellant shall be established as of the date of
recordation of each particular instrument, with the rights of appellant Burgess to be inferior to
those of the other appellants.
After satisfaction of the liens of all the appellants in full, respondent Shrake would be
entitled to such proceeds as remain undistributed.
Insofar as the judgment below is inconsistent with the views herein expressed, the
judgment is reversed, and the case is remanded to the lower court with instructions to enter a
judgment pursuant to the determination herein, said judgment to include an order of
foreclosure as aforesaid.
Costs to appellants and respondent Latour to be assessed against respondents Martins.
____________
75 Nev. 250, 250 (1959) Northam Range Ass'n v. Casey
NORTHAM RANGE ASSOCIATION, a Non-profit Corporation, Appellant, v. JOHN J.
CASEY, MICHAEL P. CASEY, and WILLIAM H. CASEY, Respondents.
No. 4096
May 14, 1959 339 P.2d 384
Appeal from judgment of the First Judicial District Court, Churchill County; Frank B.
Gregory, Judge, Department No. 1.
Action by ranchers' association to recover damages for trespass resulting when
respondents placed herds of cattle upon grazing lands to which association allegedly had
exclusive grazing rights. The lower court entered judgment for respondents and association
appealed. The Supreme Court, Merrill, C. J., held that where irrigation district having
custodial authority over public lands in district granted association exclusive grazing rights on
certain land and permitted erection of fences which were to be taken down at the termination
of lease, and grazing rights could be terminated by either party upon 60-day notice, irrigation
district could not destroy exclusive character of lease by its subsequent unilateral act in
granting grazing permit to respondents for a portion of the same land.
in granting grazing permit to respondents for a portion of the same land.
James W. Johnson, Jr., of Reno, for Appellant.
Diehl and Recanzone, of Fallon, for Respondents.
1. Public Lands.
Where irrigation district had custodial authority over public lands within the district and granted to
ranchers' association exclusive grazing rights on certain lands within district which could be terminated
upon 60-day notice by either party and association was given permission to erect fences which were to be
taken down at the end of lease, district could not by its subsequent unilateral act in granting another rancher
permit to graze cattle on certain portions of land covered by grazing permit to association destroy exclusive
character of grazing permit.
2. Public Lands.
Where irrigation district had custodial authority over public lands within district and granted ranchers'
association exclusive grazing rights on certain lands and authorized association to erect fences which were
to be removed at the termination of lease, lease could not be construed as exclusive only in the event that
leased lands were fenced by the association, since fencing was permissive and not expressed as a
requirement or essential condition.
Where ranchers' association having exclusive grazing permit on certain lands over which irrigation
district had custodial authority brought action for trespass against other ranchers by reason of their placing
of herds of cattle on such lands, and other ranchers claimed that cattle present on land resulted from natural
drifting of cattle upon unfenced land, and no findings were made upon this point, the case would be
remanded to trial court for further findings.
OPINION
This action is brought by appellant association to recover damages for trespass resulting, it
is alleged, when respondents placed herds of cattle upon the grazing lands of appellant
located in Churchill County.
The trial court, sitting without jury, concluded that appellant had failed to show that it was
entitled to exclusive possession of the lands in question.
exclusive possession of the lands in question. Judgment for respondents was rendered upon
this ground, and this appeal is from that judgment. Appellant contends that the record
establishes beyond question its exclusive right to possession of the grazing lands involved.
This is the sole question presented by the appeal.
Appellant's right to possession is derived from a lease granted by the Truckee-Carson
Irrigation District. That district is a public corporation, an irrigation district encompassing
lands in Churchill County. The United States has granted the district custodial authority over
all public lands within the district's boundaries.
Appellant association is composed of ranchers whose home properties lie within the
Northam and Swingle bench areas of the irrigation district.
The district has exercised its custodial authority over the grazing lands within its
boundaries in two ways: (1) By the issuance of grazing permits. These appear to have been
limited to a specified number of livestock within a specified area and for a limited time
within a single grazing season from April 1 to October 31 of the same year. They were not
necessarily exclusive, and it would appear that any number of permittees might run stock
upon the same area. (2) By leases to individuals and organizations for a period of years. It is
asserted that these so-called leases (including the one here involved) were actually nothing
more than licenses. The distinction is not material to the issue before us which is whether the
grazing privileges thereby granted were exclusive. The district has referred to these grants as
leases and although the label is questionable we shall, in this opinion, follow the district's
example.
The problems encountered by the district with reference to its management of grazing
lands were the subject of a letter from the district written July 7, 1956 to district members. It
was pointed out in that letter that the unfenced custodial lands were a source of trouble
between users; that, in a few instances, leases had been negotiated, in which cases the lessee
provided his own protection by fencing or other means; that as to the bulk of its lands,
where disputes had occurred, the district had been unsuccessful in negotiating leases;
that negotiations had failed in such cases because of the inability of the individual users
to band themselves together into organizations.
bulk of its lands, where disputes had occurred, the district had been unsuccessful in
negotiating leases; that negotiations had failed in such cases because of the inability of the
individual users to band themselves together into organizations.
It is thus apparent that the district was seeking to encourage its members to band
themselves into organizations in order that leases might be granted to such organizations
which would then provide their own protection in their use of the leased areas. It was hoped
that disputes resulting from the common use of unfenced grazing lands might thereby be
eliminated.
On December 7, 1955 a meeting of the board of directors of the district was held for the
purpose of discussing a lease of the Swingle bench and Northam areas to the ranchers located
in those areas. Respondent John Casey, whose property adjoined the Northam area, was
present, and objected to the lease being granted. From the record it would appear, however,
that it was the understanding reached at that meeting that should these ranchers form an
organization a lease would be granted to that organization. Appellant association was then
organized and a lease was granted March 7, 1956.
The alleged trespass subsequently occurred.
The lease provides that the district does hereby grant and lease to the association the
exclusive regulation and control of grazing and grazing rights within the leased area. Rental
was fixed at 25 cents per animal unit month, as determined by a representative of the district.
The lessee was authorized to construct fences or other structures, buildings or barriers and
to remove the same after the termination of the lease. The lease might be terminated by either
party, upon 60 days' notice.
On August 7, 1956, after the alleged trespass had been brought to the attention of the
district, a grazing permit was issued by the district to respondent William Casey, permitting
grazing within certain areas of the district including the Swingle bench area. Although issued
on August 7, 1956 the permit purported to be effective as of April 1, 1956.
The trial court ruled that the lease to the appellant association did not grant exclusive
grazing rights to the lessee. From its opinion it would appear that the court recognized an
attempt or intent on the part of the district to grant exclusive rights by this instrument. The
court felt, however, that the exclusive nature of these rights had been destroyed by the district
itself through its subsequently granting the grazing permit to respondent William Casey.
[Headnote 1]
The trial court's ruling we must hold to be error. The exclusive character of the lease could
not be destroyed by the district's subsequent unilateral act. By agreement it had parted with its
right to nullify the grant of exclusive grazing rights by any unilateral act other than 60 days'
notice of termination.
[Headnote 2]
Respondents contend that the lease should be construed as exclusive only in the event that
the leased lands were fenced by the lessees (which they were not). We cannot so construe the
instrument. Fencing was permissive and was not expressed as a requirement or an essential
condition.
At the time of the alleged trespass, then, appellant district was possessed of the exclusive
rights to grazing upon the lands covered by the lease.
[Headnote 3]
Respondents' principal contention upon trial below and upon this appeal is that the facts
demonstrate that no trespass had been committed but that the presence of their cattle upon the
lands of the appellant resulted from the natural drifting of cattle upon unfenced land. No
findings were made upon this point, and the evidence is in dispute. The determination, then,
remains for the trial court.
____________
75 Nev. 255, 255 (1959) Close v. Flanary
In the Matter of the Estate of S. PETERSON, Also Known as SVANTE PETERSON, Also
Known as SWANEY PETERSON, Deceased.
MILDRED JANE CLOSE, Appellant, v. R. S. FLANARY, Executor, R. S. FLANARY,
JUANITA D. FLANARY, FRANCES ATKINSON, VERN HURSH, NEVADA CHAPTER
OF THE NATIONAL FOUNDATION FOR INFANTILE PARALYSIS, ABSENT HEIRS,
and JULIA ERSKINE, Respondents.
No. 4143
May 15, 1959 339 P.2d 379
Proceeding on petition for revocation of probate of an alleged last will of decedent. The
lower court entered judgment sustaining the will and contestant appealed. The Supreme
Court, Badt, J., held that where decedent caused will under which contestant was named as
beneficiary to be withdrawn from a safe deposit box and to be left with his attorney and then
had his attorney draw a new will, and then had the prior will destroyed, and approximately
two hours later proceeded to a bank where contested will was executed, revocation of prior
will could not be deemed an act independent of execution of contested will, and in view of
fact that contestant's interest involved factual issues concerning competency, mental capacity,
lack of fraud or undue influence, contestant, by statute, was entitled to a jury trial, and denial
of a jury trial could not be supported on theory that it was proper to try preliminary issue of
contestant's interest without a jury.
Reversed.
See also 73 Nev. 194, 314 P.2d 379.
Nada Novakovich, of Reno, for Appellant.
Lohse and Fry, of Reno, for Respondents R. S. Flanary and Juanita Flanary.
Bible and McDonald, of Reno, for Respondent Nevada Chapter of the National
Foundation for Infantile Paralysis.
Stanley H. Brown, of Reno, for Respondents Frances Atkinson and Vern Hursh.
Harold O. Taber, of Reno, for Absent Heirs.
Wills.
Where decedent caused will under which contestant was named as beneficiary to be withdrawn from a
safe deposit box and to be left with his attorney, and then had his attorney draw a new will, and then had
the prior will destroyed, and approximately two hours later proceeded to a bank where contested will was
executed, revocation of prior will could not be deemed an act independent of execution of contested will,
and in view of fact that contestant's interest involved factual issues concerning competency, mental
capacity, lack of fraud or undue influence, contestant, by statute, was entitled to a jury trial, and denial of a
jury trial could not be supported on theory that it was proper to try preliminary issue of contestant's interest
without a jury. NRS 137.010, 137.020, 137.080, 137.100.
OPINION
This is an appeal from an order and judgment dismissing a petition for revocation of
probate of the alleged last will of decedent, made at the conclusion of a preliminary trial to
determine the status of the petitioner as an interested person. Petitioner, sole beneficiary
under an earlier will, which the proponents of the later will contend had been revoked, had
objected to the motions for separate trial of this issue of whether petitioner was an interested
person and, after the overruling of such objection, demanded a jury trial, which demand was
rejected by the court.
Although the appellant's brief contains 33 assignments of error, each of which she asserts
entitles her to a reversal, we need consider only one, as we are satisfied that the court erred in
denying trial by jury, under specific statutory provisions, of the issues raised.
NRS 137.010 provides for the contesting of a will by any person interested. NRS
137.020 provides: Any issue of fact involving the competency of the decedent to make a last
will and testament, the freedom of the decedent at the time of the execution of the will from
duress, menace, fraud or undue influence, the due execution and attestation of the will, or any
other question substantially affecting the validity of the will, shall be tried by the court unless
one of the parties demands a jury. * * * With reference to a petition, after probate, for the
revocation of such probate, NRS 137.080 and 137.100 require that proceedings be had
thereunder as in the case of a contest before probate.
Mildred Jane Close, the appellant herein, in her petition for revocation of probate, alleged
that under a will of the decedent dated May 4, 1953, and which was duly executed, attested
and subscribed according to law, when the testator was of sound and disposing mind, she was
the sole beneficiary and was named as executrix; that under the will of May 27, 1955,
revocation of whose probate was sought, Raymond S. Flanary, Juanita D. Flanary, his wife,
Frances Atkinson, Vern Hursh, Nevada Chapter of the National Foundation for Infantile
Paralysis, Charles Peterson and Julia Erskine were named as the legatees of the estate valued
at $130,000, and that Raymond S. Flanary was named as executor; that the will of 1955 was
not the last will and testament of the decedent; that the same is invalid; that the decedent was
not, at the time of the execution of said 1955 will of sound mind and memory, but was by
reason of extreme age and protracted sickness mentally incapacitated; that said will of 1955
was not executed, attested and subscribed in conformity with the requirements of the laws of
the State of Nevada; that the signature to said 1955 will is not the signature of the decedent
and was not signed by the decedent or by some person in his presence or by his express
direction; that the purported signature is a forgery and was forged by the said Raymond S.
Flanary; that said will was not attested by at least two competent witnesses subscribing their
names thereto in the presence of said decedent; that said will was procured by fraud and the
undue influence of Raymond S.
that said will was procured by fraud and the undue influence of Raymond S. Flanary; that the
decedent at the time was blind and had been blind for approximately 25 years prior to his
death; that at the time of the purported execution of the 1955 will, decedent was 83 years of
age; that Flanary was the attorney at law for the decedent at the time and bore a confidential
and fiduciary relationship and the relationship of attorney and client with him at the time; that
said Flanary prepared, typed, wrote and drew the purported will; that he actively participated
in its execution, suggested its phraseology and drew the will upon his legal paper bearing his
name and address; that under such will he was bequeathed the sum of $10,000 and his wife
Juanita D. Flanary the sum of $5,000; that such bequests were unnatural and unreasonable
and to which the said legatees had no natural claim, and that they were not the natural objects
of the decedent's bounty; that the entire will comprised four typewritten pages, the purported
signature of the testator appearing only on page 2, the remaining pages being taken up with
the attestation clauses; that the bequests to Flanary and his wife appear on page 2; that
Flanary had substituted said page 2 after the purported execution, attestation and subscription
by the subscribing witnesses; that Flanary prepared, drew, signed, and substituted such page 2
subsequently to the purported attestation and subscription by the subscribing witnesses; that
the bequests to the other legatees therein named were unnatural, unreasonable, and unjust and
that such beneficiaries were not the natural objects of the testator's bounty and had no natural
claim to his estate; that on May 11, 1955, which was 16 days before the execution of the 1955
will, Flanary entered safe deposit box No. 1808 in the Nevada Bank of Commerce, in Reno,
Nevada, which box was in the name of decedent and the appellant Mildred Jane Close, from
which he removed the will of 1953 (it appearing later that at such time he was accompanied
by the decedent); that Flanary thereafter destroyed the 1953 will but had a copy in his
possession (Flanary testified that he destroyed it in his office on May 27, 1955 at the
direction of the decedent).
destroyed it in his office on May 27, 1955 at the direction of the decedent).
The proponents of the will of 1955 admitted many allegations of the petition for
revocation of the probate of that will, including the allegations concerning the execution of
the 1953 will naming appellant as sole beneficiary. They denied all of the allegations as to
lack of mental capacity, fraud, undue influence and forgery and denied the allegations that it
was not executed, subscribed and attested in conformity with the law. They admitted the
allegations of the testator's blindness, his age of approximately 83 years, the attorney-client
relations between the testator and Flanary, the drafting and typing of the 1955 will by Flanary
upon his stationery and the description of the bequests contained in the 1955 will. As
affirmative defenses, they alleged that appellant was not an interested person in that the 1953
will had been revoked by being torn up and destroyed, and that appellant was estopped to
assert lack of testamentary capacity in the testator.
Both the proponents of the will of 1955 and the absent heirs
1
filed motions for a separate
trial upon the issue of the status of appellant as an interested party entitling her to contest the
validity of the 1955 will. These motions were granted over the appellant's opposition.
Respondent R. S. Flanary resigned as executor, filed his accounting, and renounced his
$10,000 legacy.
Under the issues as developed under this situation, the court, as noted, rejected appellant's
demand for jury trial, tried the preliminary issue of plaintiff's status as an interested party
before itself without a jury and found that on May 27, 1955, at Flanary's office, Flanary, at the
testator's direction, destroyed the will of May 4, 1953, and on the same date decedent
executed the 1955 will before the attesting witnesses, and that at the time he was mentally
competent and of sound mind and had the mental ability and capacity to revoke the 1953 will.
The court specifically found: The evidence received by the court relative to the execution of
the May 27, 1955 will was admitted for the sole purpose and so considered by the court of
determining the issue of whether or not there was a fraudulent destruction of the will
dated May 4, 1953."
____________________

1
The absent heirs in their pleadings attacked both wills.
will was admitted for the sole purpose and so considered by the court of determining the issue
of whether or not there was a fraudulent destruction of the will dated May 4, 1953. The court
specifically found that there was no evidence which would support the contestant's allegations
of forgery and substitution and that the evidence was clear and convincing, that the legacy
contained in said will to Raymond S. Flanary was freely and voluntarily made by decedent.
The court specifically found that the presumption of fraud and undue influence had been
completely rebutted.
As a conclusion of law the court found that the 1953 will had been revoked and that
contestant was, therefore, not an interested person within the meaning of NRS 137.080, nor
entitled to contest the 1955 will. Such findings and conclusions resulted from the
consideration of testimony and exhibits now evidenced by seven large volumes. In other
words, in order to determine interest, the court received and considered evidence relative to
testator's competency, to fraud, and to undue influence existing at the time of the execution of
the later will, which issues under NRS 137.020 should have been determined by a jury.
This record, including much expert testimony by experts in the field of questioned
documents on both sides of the controversy, covered all the issues as above developed. These
would be the precise issues to be tried in the main litigation touching upon the competency of
the decedent to revoke the will of 1953, to execute the will of 1955 and his freedom at the
time from duress, menace, fraud or undue influence, as well as the issue of due execution and
attestation of the will and other questions substantially affecting the validity of the will, as to
all of which issues specific right to a jury trial is accorded by statute.
Appellant's brief analyzes the evidence at length and attacks the court's findings of
competency, mental capacity, lack of fraud and undue influence on the ground that they are
not supported by the evidence. A consideration of this assignment is, fortunately,
unnecessary.
Respondents support the court's denial of a jury trial upon the general theory that it was
proper to try the preliminary issue of appellant's interest without a jury.
upon the general theory that it was proper to try the preliminary issue of appellant's interest
without a jury. They rely on statements contained in In re Land's Estate, 166 Cal. 538, 137 P.
246. In that case the contestant received the identical legacy of $5,000 both in the first will
and in the second will in issue, and so did not stand to win or lose by the admission of either
one to probate. However, we may for the purpose of argument concede that under many
situations the court could properly determine the contestant's interest in a preliminary trial
without a jury. This is not such a situation. We refer again to the statutory provisions under
which a party has a right to a jury trial. Directly in point is In re Simmons' Estate, 166 Minn.
65, 207 N.W. 189, 191, where the court said:
The execution of the 1916 will and the destruction of its 1911 predecessor were so near a
unitary transaction that it is impossible to divide them for the purpose of judicial
consideration of their inducement. The conclusion is inescapable that whatever motive
resulted in the 1916 will also and concurrently caused the destruction of that of 1911. In
company with respondent, the testatrix first executed the new will, and within a few minutes,
half an hour at the most, without having left the presence of respondent, she destroyed the old
will as already indicated. There was but one transaction, indivisible as to inducement and
purpose. Obviously, if such a single issue is divided, the answer to one branch as a matter of
simple sense and logic must also be the answer to the other. Inasmuch, therefore, as the
verdict on the one submitted to the jury is controlling, it would be inconsistent with orderly
and logical procedure to permit an opposite decision of the other by the court.
Orr v. Love, 225 Ark. 505, 283 S.W.2d 667, 673. The court here approves the following
rule quoted from 57 Am.Jur., Wills, sec. 461, p. 323, which in turn cites Simmons' Estate,
supra:
When a testator in destroying his will acts under fraudulent and undue influence, the will
is considered not to have been revoked, and may be admitted to probate on establishing facts
showing the existence and due execution of the will and its destruction by reason of such
improper influence.
execution of the will and its destruction by reason of such improper influence. The execution
of a will and the destruction of a former will may be so closely connected in point of time as
to constitute one transaction, indivisible as to inducement and purpose, so as to render
inescapable the conclusion that undue influence sufficient to invalidate the later will rendered
the destruction of the former will ineffective as a revocation.
It may not be amiss, at this point, to make brief reference to the testimony of respondent
Raymond S. Flanary, which constitutes the sole evidence, in connection with the destruction
of the 1953 will and leading up to the execution of the 1955 will. From such testimony it
appears that the testator a few days prior to the events of May 27, 1955 had caused the 1953
will to be withdrawn from his safe deposit box and to be left with Mr. Flanary at the latter's
office; that on May 27, 1955 Flanary had drawn a new will pursuant to the testator's
instructions, the testator called at his office, the 1953 will was destroyed by his instructions,
whereupon they immediately, in Flanary's car, left Flanary's office in Sparks and proceeded to
the bank in Reno where the 1955 will was executed. The elapsed time was less than two
hours. There is no support for the contention of respondents that the destruction of the old
will and its resulting revocation were entirely separate and independent from the execution of
the new will. In fact they concede that had the revocation of the old will been accomplished
simply by the revoking clause actually contained in the new will, a situation would have
arisen under which the testator's mental capacity and freedom from undue influence would
have been an issue for trial by jury, and not for trial as a preliminary issue before the court
without a jury. Under the circumstances recited by Mr. Flanary himself and under the
authorities above cited, we must reject the contention that the revocation of the 1953 will was
an act independent of the execution of the 1955 will.
In thus narrowing the extent of our holding to the conclusion that the revocation of the
earlier will and the execution of the later will constituted but one transaction, indivisible as
to inducement and purpose" {Orr v. Love, supra) and that they were to all intents and
purposes "a unitary transaction" {Simmons' Estate, supra), we do not as a consequence
dispute the correctness of the rule stated In re Witt's Estate, 19S Cal.
transaction, indivisible as to inducement and purpose (Orr v. Love, supra) and that they were
to all intents and purposes a unitary transaction (Simmons' Estate, supra), we do not as a
consequence dispute the correctness of the rule stated In re Witt's Estate, 198 Cal. 407, 245 P.
197, to wit, that where, regardless of whether or not the unitary nature of the two transactions
is present, the question of interest involved factual issues which the will contest itself
presents, the contestant is entitled to a jury trial of such issues.
Order dismissing petition reversed with costs and cause remanded for trial before a jury.
McNamee, J., concurs.
Merrill, C. J. (Concurring):
I concur in the decision, but disapprove what seems to me to be a confusion of the legal
consequences of two different situations:
(1) That in which the destruction of Will A and the execution of Will B are part of the
same transaction.
(2) That in which factual issues involved in the question of interest also relate to the
validity of the contested will.
In the first situation, if the destruction of Will A and the execution of Will B are part
of the same transaction, the destruction has no standing as an independent event. It is merged
in a single transaction with the execution of Will B, and the situation is as though no
destruction had occurred at all. This is not because of fraud or undue influence in the
revocation, or lack of capacity to revoke. It is simply because there was no independent
revocation. It is, then, as though the sole means of revocation of Will A was the execution
of Will B. It is conceded that were this the case, appellant's interest would be established as
a matter of law.
In the second situation, where we have identity of factual issues, interest has not been
established as a matter of law but remains a factual problem. There should be no preliminary
hearing to determine interest in such a case, however, for to do so would be to deprive the
contestant of a jury trial upon those very issues as to which the law expressly grants her
a jury trial.
in such a case, however, for to do so would be to deprive the contestant of a jury trial upon
those very issues as to which the law expressly grants her a jury trial. In re Witt's Estate, 198
Cal. 407, 245 P. 197. The existence of a unitary transaction is not necessary to the
application of this rule. On the contrary, it would seem to render the rule inapplicable, for in
such a case no factual issues remain for determination upon the question of interest.
I would base this decision upon the ground of identity of factual issues and the rule
applicable to such situation. Those facts which the majority has regarded as establishing a
unitary transaction I would hold simply to demonstrate the existence of identical issues and
the applicability of the rule against a separate trial upon the question of interest.
____________
75 Nev. 264, 264 (1959) La Potin v. La Potin
ROSE LA POTIN, Appellant, v. NATHAN W.
LA POTIN, Respondent.
No. 3978
May 15, 1959 339 P.2d 123
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, Department No. 2.
Action by wife to set aside divorce decree previously granted to husband on ground that
court was without jurisdiction. The trial court entered judgment for husband and wife
appealed. The Supreme Court held that where record was uncontradicted that process server
through mistake served wrong person and that wife was never served with process, divorce
court was without jurisdiction and the decree was void.
Reversed.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Divorce.
Where record in wife's action to set aside divorce decree previously granted to husband showed without
contradiction that process server had mistakenly served the wrong person and that wife was never served
with process, divorce court was without jurisdiction and decree was void.
2. Divorce.
Invalidity of divorce decree on ground of lack of jurisdiction of divorce court because of failure of party
to be served with process is the proper subject of an independent action to set it aside. NRCP 60(b).
OPINION
Per Curiam:
This action was brought by the wife on June 27, 1955 to set aside a divorce decree
theretofore on July 21, 1949 granted to the husband by the district court of Clark County.
The wife contends that the divorce decree was void for the reason that the court granting
the decree was without jurisdiction. That court had proceeded to exercise jurisdiction upon
the basis of an affidavit showing the wife to have been personally served with process in New
York. The present action is founded upon the proposition that the affidavit of service was
false and that the wife had never been served with process.
The court below granted judgment to the husband, the defendant in the present action and
plaintiff in the earlier action for divorce. The wife appeals from that judgment. The sole issue
upon appeal is whether the record establishes beyond question that the divorce court was
without jurisdiction through failure of service of process. If so, judgment for the husband in
the present action was without support and judgment must be entered for the wife.
The husband has filed no answering brief upon this appeal. The matter stands submitted
upon the opening brief of the wife.
The husband was represented by counsel in the court below and entered his appearance
through the filing of an answer to the complaint. By that answer, through lack of knowledge
or information, the husband placed in issue the lack of personal service of process upon
the wife in the prior action.
lack of knowledge or information, the husband placed in issue the lack of personal service of
process upon the wife in the prior action.
The evidence upon this issue is limited to two depositions: those of the wife and of the
process server. The depositions were taken upon the written interrogatories proposed by the
wife. There were no cross-interrogatories.
[Headnote 1]
These depositions positively assert that the process server, through misinformation,
mistakenly served the wrong person, and that the wife never was served with process.
Nothing appears to have been offered by the husband which would serve to impeach the
testimony thus presented. It stands uncontradicted and unimpeached. Upon this state of the
record we must accept these facts as established.
[Headnote 2]
It follows from well established principles of law that the divorce court was without
jurisdiction, and that the divorce decree was void. Perry v. Seventh Judicial District Court, 42
Nev. 284, 174 P. 1058. The invalidity of the divorce decree in such a case is the proper
subject of an independent action to set it aside. NRCP 60(b). See Moore v. Moore, 75 Nev.
189, 336 P.2d 1073; Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140 P.2d 953.
Reversed and remanded with instructions that judgment for the defendant below be set
aside and that judgment be entered for the plaintiff vacating and setting aside the divorce
decree of July 21, 1949.
____________
75 Nev. 267, 267 (1959) Nellis Housing Corp. v. State of Nev.
NELLIS HOUSING CORPORATION and NELLIS GARDENS COMPANY, Appellants, v.
STATE OF NEVADA, COUNTY OF CLARK, and NEVADA TAX COMMISSION,
Respondents.
No. 4120
May 22, 1959 339 P.2d 758
Appeal from judgment of the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, Department No. 1, upholding taxes as properly levied.
Proceeding by lessees of government land to recover taxes paid under protest upon
housing units constructed on such land by lessees. The lower court held that taxes were
proper and appeal was taken. The Supreme Court, Merrill, C. J., held that where leases of
government land pursuant to National Housing Act provided that all buildings and
improvements erected by lessees should become part of leased lands and public buildings of
government, and under agreed maintenance practices the units would be tenantable and have
useful value at expiration of lease term of 75 years, reversionary interest in land and full value
of interest in buildings and improvements was not attributable to lessees for purpose of ad
valorem taxes.
Reversed upon the ground that property taxed was not properly assessed, and
remanded with instructions that the trial court remand to the Clark County Board of
Equalization for proper assessment.
(Petition for rehearing denied June 22, 1959.)
Toy R. Gregory, of Las Vegas, for Appellants.
George M. Dickerson, District Attorney, Clark County, for Respondents.
1. Taxation.
A possessory interest in real property is subject to ad valorem tax and must be taxed. Const. art. X, sec. 1.
2. Taxation.
Proper basis for valuation of possessory interest in tax-exempt land is full cash value of leasehold and not
full cash value of land and buildings leased. Const. art. X, sec. 1; NRS 361.025, 361.225.
3. Taxation.
The full cash value of a leasehold for ad valorem taxation purposes is that price which leasehold would
bring to its owner, the lessee, if it were offered for sale on an open market under conditions in which
neither buyer nor seller could take advantage of the exigencies of the other. Const. art. X, sec. 1; NRS
361.025, 361.225.
4. Taxation.
Where leases of government land pursuant to National Housing Act provided that all buildings and
improvements erected by lessees should become part of leased lands and public buildings of government,
and under agreed maintenance practices the units would be tenantable and have useful value at expiration
of lease term of 75 years, reversionary interest in land and full value of interest in buildings and
improvements was not attributable to lessees for purpose of ad valorem taxes. National Housing Act, sec.
801, 12 U.S.C.A. sec. 1748; Const. art. X, sec. 1; NRS 361.025, 361.225.
5. Taxation.
Where error is committed in assessment of taxable property, that property shall not thereby escape
taxation, and proper remedy in such a case is to correct error to the end that property be correctly assessed.
NRS 361.420, subds. 4, 5.
6. Taxation.
Where procedure followed by tax assessor was such that neither trial court nor reviewing court could
determine the excess in valuation made by assessor, remedy was to remand matter to county board of
equalization for evaluation of property involved and such property did not escape taxation. NRS
361.420, subds. 4, 5; NRCP 54(c).
7. Taxation.
Although lease of housing units built on government land provided for replacement reserves to be
maintained by lessees to assure that all furnishings, fixtures and appliances were replaced when outworn,
personal property was subject to ad valorem tax to full value and was attributable to lessees' interests in
view of fact tax was upon existing property as it was depreciated and that as to items taxed no residual
value was to be expected at the expiration of the lease term. National Housing Act, sec. 801, 12 U.S.C.A.
sec. 1748; NRS 361.025, 361.225.
OPINION
This appeal concerns actions brought by these appellants to recover taxes paid under
protest. The taxes were levied for the year 1955-1956 upon possessory interests in land
located in Clark County.
in land located in Clark County. The land itself is owned by the United States and appellants
contend that they are improperly being taxed upon the tax-exempt interest of the United
States.
This contention was made by appellants before the board of equalization of Clark County,
Nevada. The action of the Clark County assessor was sustained by that board. An appeal was
then taken to the state board of equalization and the assessment was sustained by the state
board. This action was then brought. The court below upheld the taxes as proper and the
present appeal was taken.
Nellis Housing is lessee from the United States of a housing project consisting of 401 units
constructed in 1952. Nellis Gardens is lessee of a project consisting of 400 units constructed
in 1954. The lands, owned by the United States, constitute a part of the Nellis Air Force Base
in Clark County.
Both leases were executed under the provisions of Title 8 of the National Housing Act, (12
U.S.C.A., sec. 1748), known as the Wherry Act. Their purpose is to furnish inexpensive
housing for personnel stationed at the air base. The term of each lease is 75 years. The ground
rental payable to the United States under each lease is $100 a year.
Under the terms of the leases and collateral agreements relating thereto, the housing units
were constructed by lessees in accordance with plans and specifications furnished by the
United States. Replacement reserves are maintained by lessees out of rentals received, into
which specified sums are regularly deposited to assure that all furnishings, fixtures and
appliances are replaced when outworn. Maintenance of the housing units themselves is
assured by an annual inspection and report by the Federal Housing Administration.
Maintenance crews employed by lessees carry out all maintenance operations directed by the
reports.
It further appears that in connection with the housing projects a school was built and is
maintained without expense to the Clark County school district, although it is operated by
the district.
it is operated by the district. All streets were constructed and are maintained by lessees. Fire
and police protection is furnished by the air base.
The rentals charged by lessees are fixed by agreement with federal agencies. To the base
rental thus fixed is added a proration of all taxes assessed against the lessees.
The housing units are constructed of cinder block. Upon the trial below undisputed expert
testimony was introduced to the effect that this material is more durable and lasting than
brick; that the maintenance required of lessees is of a higher standard than that ordinarily
practiced; that under the agreed maintenance practices the units would be tenantable and have
useful value at the expiration of the lease term.
The leases provide, pursuant to the National Housing Act, that all buildings and
improvements erected by lessees shall become real estate and part of the leased lands and
public buildings of the United States.
The taxes in question were levied as ad valorem property taxes. The notice to Nellis
Housing shows the following assessment: real estate or possessory claims $94,235;
improvements $1,169,840; personal property $28,000; a total of $1,292,075. For Nellis
Gardens the respective figures were $91,650; $1,185,380; and $28,000; for a total of
$1,305,030. In both notices the property assessed was described as Imps. on leased land.
It is conceded that the interests of the lessees are subject to taxation. Upon this appeal we
are concerned with the propriety of the valuation of these taxable interests as made by the
Clark County assessor. His methods are not described in any detail.
From the testimony given by him in the trial below it appears that he proceeded to
ascertain the total value of the land, improvements and personalty and appraised the lessees'
interests at those figures. He stated, I treated it * * * just the same as if you owned it.
Whenever you have that long a lease I consider you own it * * *.
This statement was later elaborated as follows, This method of valuation was employed
because for all practical purposes under a lease of 75 years with buildings and
improvements thereon having a useful estimated life of not more than 35 years the entire
worth of said buildings and improvements is attributable to the lessee's interest and the
possibility of a reverter to the United States of the fee does not affect valuation of the
lessee's interest."
method of valuation was employed because for all practical purposes under a lease of 75
years with buildings and improvements thereon having a useful estimated life of not more
than 35 years the entire worth of said buildings and improvements is attributable to the
lessee's interest and the possibility of a reverter to the United States of the fee does not affect
valuation of the lessee's interest. It does not appear from the record how the life expectancy
of 35 years was estimated. There is no evidence that such was the expectancy.
It would appear from the testimony of the assessor that he did give consideration to the
fact that the streets in connection with the housing projects were constructed and maintained
by the lessees. He testified that because of this fact the valuation which otherwise would have
been placed upon the land (without improvements) was cut in half by him.
However, it is clear, notwithstanding such concessions, that the interest which was
appraised was the ownership interest. Our question is whether, under the circumstances of
this case, this was proper or whether, on the contrary, it constituted an arbitrary method of
arriving at the value of the taxable interest.
Respondents rely on certain decisions of the United States Supreme Court. In 1957,
speaking through Mr. Justice Black, that court in three cases handed down a series of
opinions dealing with the question whether an interest of the United States had indirectly and
improperly been taxed. United States and Borg-Warner Corporation v. Detroit, 355 U.S. 466,
78 S.Ct. 474, 2 L.Ed.2d 424; United States and Continental Motors Corporation v.
Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436; Detroit v. Murray Corporation of
America, 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441.
In each case the tax in question had been assessed upon property admittedly owned by the
United States. In each case the court upheld the tax as a use tax under a Michigan statute
providing that when tax-exempt property is used by a private party in a business conducted
for profit, the private party is subject to taxation to the same extent as though he owned the
property.
The cases are distinguishable upon this ground. In the case at bar we are concerned with an
ad valorem tax and not with a use tax under such a statute. This distinction is emphasized by
Mr. Justice Black in the Borg-Warner case, 355 U.S. 471, 78 S.Ct. 477, 2 L.Ed.2d 428, In
urging that the tax assessed here be struck down the appellants rely primarily on United States
v. Allegheny County, 322 U.S. 174, [64 S.Ct. 908, 88 L.Ed. 1209], but we do not think that
case is at all controlling. In Allegheny the Court ruled invalid a tax which the State did not
contend was anything other than the old and widely used ad valorem general property tax' to
the extent it was laid on government property in the hands of a private bailee.
Offutt Housing Company v. County of Sarpy, 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151,
involved the taxation of property leased for a term of 75 years under the Wherry Act. In this
respect it is similar to the case at bar. Also, there as here, the tax in question was an ad
valorem property tax. There as here the interest of the lessee was equated with the ownership
interest. The court upheld the tax.
This case illustrates the necessity for differentiating between those instances in which the
taxable interest is the ownership interest and those in which it is a possessory interest.
In the Offutt case it does not appear that the tax was levied upon a possessory interest in
land. It was not a leasehold which was being taxed. It would appear that the subject of
taxation was the physical plant itself: the buildings and improvements, but without reference
to the land upon which they stood. Those buildings and improvements were shown to have an
estimated useful life of but 35 years: less than half the leasehold period.
Under these circumstances the court concluded, [351 U.S. 262, 76 S.Ct. 819, 820, 100
L.Ed. 1160], In the circumstances of this case, then, the full value of the buildings and
improvements is attributable to the lessee's interest. Further it was stated, [351 U.S. 261, 76
S.Ct.
S.Ct. 819, 100 L.Ed. 1160], The government may have title' but only a paper title * * *.
The court thus in effect held that the circumstances were such that, as to the buildings and
improvements, all values of ownership were enjoyed by the lessee; that the lessee for
purposes of ad valorem taxation might be regarded as possessing title to the buildings and
improvements. The ownership interest, then, was taxable to the lessee and it was that interest
and not a possessory interest which was taxed.
Such is not the case before us. Here the land itself must be considered. It cannot here be
said that ownership of, or title to, the land, has vested in these lessees by virtue of their lease.
Their interests remain possessory interests only. Ill. Central R.R. Co. v. City of Louisville,
249 Ky. 219, 60 S.W.2d 603; see Anno. 55 A.L.R. 154. As to the land it is conceded that the
reversionary interest has value.
Even as to the buildings and improvements, if they could properly be considered
separately, the record indicates their useful life to be such that it cannot be said that their full
value is attributable to the interest of the lessees.
The court below, it is clear from the record, discounted the testimony relative to the useful
life of the buildings and improvements. It considered the situation as too speculative to be
susceptible of being satisfactorily established.
This may well be true. However, it serves to defeat rather than to establish the right to treat
the interests of these lessees as ownership rather than as possessory interests. If title, for
purposes of taxation, is to be divorced from legal ownership the justification should appear
clearly and not through resort to speculation.
[Headnote 1]
In the case at bar, then, we are faced with a case in which the taxable interest is a
possessory and not an ownership interest. Such an interest is taxable in this state and under
our constitution, Art. 10, sec. 1, must be taxed.
With reference to the basis for valuation NRS 361.225 provides, All property subject to
taxation shall be assessed at its full cash value. NRS 361.025 provides, Full cash value'
means the amount at which the property would be appraised if taken in payment of a just debt
due from a solvent debtor.
[Headnote 2]
Under these statutory provisions the proper basis for valuation of a possessory interest in
tax-exempt land is the full cash value of the leasehold and not the full cash value of the land
and buildings leased. This is pointed out in De Luz Homes v. County of San Diego, 45 Cal.2d
546, 290 P.2d 544, 555, where it is stated, In practice, assessors usually enter the entire
value of land and improvements on the tax roll without distinction between possessory and
reversionary interests, and since this practice results in a single amount reflecting both
interests on the roll, the constitutional mandate that all property be taxed is obeyed. * * * As
between reversioners and possessors payment of the tax is a private arrangement. * * * When,
however, the possessory interest is taxable and the reversion is exempt, only the possessory
interest is subject to assessment and taxation. * * * When there is a lease of land owned by
the state or a municipality, the reversion being exempt from taxation, the usufructuary interest
alone is subject to tax in proportion to its value; and in the absence of agreement to the
contrary, the tax necessarily falls upon the lessee.' Hammond Lumber Co. v. County of Los
Angeles, 104 Cal.App. 235, 240, 285 P. 896, 898.
In the De Luz case the California Supreme Court was dealing with the problem of the
proper basis for valuation of a possessory interest in tax-exempt land under the Wherry Act
and was faced with statutory provisions identical to those of Nevada which have been quoted.
The court stated, The standard of valuation prescribed by the Legislature is that, [A]ll
taxable property shall be assessed at its full cash value.' Rev. & Tax. Code, 401. Full cash
value,' as defined in section 110 of the Revenue and Taxation Code, means the amount at
which property would be taken in payment of a just debt from a solvent debtor.' It
provides, in other words, for an assessment at the price that property would bring to its
owner if it were offered for sale on an open market under conditions in which neither
buyer nor seller could take advantage of the exigencies of the other.
the amount at which property would be taken in payment of a just debt from a solvent debtor.'
It provides, in other words, for an assessment at the price that property would bring to its
owner if it were offered for sale on an open market under conditions in which neither buyer
nor seller could take advantage of the exigencies of the other. It is a measure of desirability
translated into money amounts, * * *, and might be called the market value of property for
use in its present condition. * * *
And later, Since nonexempt possessory interests in land and improvements, such as the
leasehold estates involved in the present actions, are taxable property, * * *, they too must be
assessed at full cash value.'
[Headnote 3]
The property subject to taxation with which we are concerned, then, is the leasehold. It is
the leasehold which must be assessed at its full cash value. The full cash value of the
leasehold is that price which the leasehold would bring to its owner, the lessee, if it were
offered for sale on an open market under conditions in which neither buyer nor seller could
take advantage of the exigencies of the other.
[Headnote 4]
The assessor has not proceeded to ascertain the price which the leasehold would bring. He
has proceeded instead to ascertain the price which the lands, buildings and improvements
themselves would bring. He has justified his method, not by proof of identity in values, but by
expressing his opinion that the property interests were identical. They are not identical, as we
have discussed. He has in effect, then, appraised Property A and arbitrarily assigned that
valuation to Property B.
We conclude that the taxable property here involved has not been properly assessed.
Under these circumstances appellants contend that the entire tax is void and that they are
entitled to recover the whole amount paid by them, relying upon Wright v. Cradlebaugh, 3
Nev. 341. While we feel that case to be distinguishable upon the facts, it is also
distinguishable upon the ground that subsequent statute law has removed its applicability
to the case at bar.
case to be distinguishable upon the facts, it is also distinguishable upon the ground that
subsequent statute law has removed its applicability to the case at bar.
NRS 361.420 provides for payment of taxes under protest and for the bringing of suit to
recover the sums so paid. Subsection 4 specifies the grounds of protest available to the
taxpayer, including, (b) That the property is exempt from taxation * * *. * * * (g) That the
assessment complained of is discriminatory in that it is not in accordance with a uniform and
equal rate of assessment and taxation, but is at a higher rate of the full cash value of the
property so assessed than that at which the other property in the state is assessed.
Subsection 5 provides, In all cases mentioned in this section, where the complaint is
based upon any grounds mentioned in subsection 4, the entire assessment shall not be
declared void, but shall only be void as to the excess in valuation.
[Headnote 5]
The legislative intent is clear that where error is committed in the assessment of taxable
property, that property shall not thereby escape taxation. The proper remedy in such a case is
to correct the error to the end that the property be correctly assessed.
Respondents, on the other hand, contend that this remedy is not available to appellants for
it is not the remedy they have sought by this action. Respondents point out that appellants
have never sought an excess in valuation; that they have made no proof as to the extent of any
excess and that the court below could not have entered judgment for any excess.
Appellants have indeed sought a judgment greater than was their right. Rule 54(c) NRCP,
however, provides, Except as to a party against whom judgment is entered by default, every
final judgment shall grant the relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded such relief in his pleadings.
[Headnote 6]
It is true that upon the proof presented at trial, neither the trial court nor this court could
determine the excess in valuation.
the excess in valuation. This is due, however, to the procedure followed by the assessor. As
we have heretofore noted he has not evaluated the leaseholds. He has evaluated the ownership
interest and has assigned that value to the leaseholds. By his failure to evaluate the leaseholds
he has made it impossible to ascertain the extent of any excess in valuation.
In De Luz Homes v. San Diego County, supra, it is stated, Assessors generally estimate
value by analyzing market data on sales of similar property, replacement costs, and income
from the property * * *, and since no one of these methods alone can be used to estimate the
value of all property, the assessor, subject to requirements of fairness and uniformity, may
exercise his discretion in using one or more of them * * *. [290 P.2d 544, 555.]
Until the assessor proceeds to exercise his administrative function in the selection of
methods for the valuation of the property subject to taxation, the courts are powerless to
determine any excess in valuation. The remedy at this point, then, is to remand the matter to
the Clark County Board of Equalization for evaluation of the leaseholds here involved.
Our opinion thus far has dealt with the land and improvements. In addition, upon each
lease, personal property was assessed at $28,000.
Appellants contend that since replacement of outworn property is assured by their
replacement reserve, there is residual value in the personal property as well as in the
improvements.
The tax, however, was upon the existing property as depreciated. It is clear that as to the
items taxed (as distinguished from their ultimate replacements) no residual value is to be
expected at the expiration of the lease term.
[Headnote 7]
As to the personal property, then, the case of Offutt Housing Co. v. County of Sarpy,
supra, may be said to apply. As to all items taxed it may be said that their full value is
attributable to the lessees' interests.
Whether this property should be separately taxed or should be taken into consideration in
connection with the leaseholds we do not here decide.
should be taken into consideration in connection with the leaseholds we do not here decide.
At this stage of the proceedings this question is left to the administrative determination of the
county board of equalization, subject to review as provided by law.
Judgments reversed with instructions that the trial court remand these proceedings to the
Clark County Board of Equalization for evaluation of the leaseholds as the property subject to
taxation.
Badt, J., and Breen, D. J., concur.
McNamee, J., having disqualified himself, the Governor designated Honorable Peter
Breen, Judge of the Fifth Judicial District Court, to sit in his place and stead.
____________
75 Nev. 278, 278 (1959) Macaulay v. Bryan
T. W. MACAULAY, Appellant, v. WILLIAM J.
BRYAN, Jr., Respondent.
No. 4146
May 25, 1959 339 P.2d 377
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge, Department No. 1.
Slander action. The lower court rendered summary judgment for defendant, and plaintiff
appealed. The Supreme Court, Merrill, C. J., held that when a race, business, profession or
nation is publicly slandered, and when a member of slandered group is present and known to
others present to be representative of group, personal humiliation is inevitable, but it is not
actionable; and held that mere fact that plaintiff was officer of group advocating highway
route different than one advocated by defendant, and that he was present at meeting where
defendant said, in effect, that persons belonging to plaintiff's association or sympathetic with
its aims had been guilty of forgery, theft of petitions and fraud, plaintiff could not recover
for slander.
guilty of forgery, theft of petitions and fraud, plaintiff could not recover for slander.
Judgment affirmed.
Ernest S. Brown, of Reno, for Appellant.
Goldwater, Taber & Hill, of Reno, for Respondent.
As a general rule, an individual may not recover for defamation of group or class of persons of which he
is member; and when group or class is large, defamatory matter must point to, or single out, plaintiff as
person involved.
When a race, business, profession or nation is publicly slandered, and when a member of slandered group
is present and known to others present to be representative of group, personal humiliation is inevitable, but
it is not actionable; and mere fact that plaintiff was officer of group advocating highway route different
than one advocated by defendant, and that he was present at meeting where defendant said, in effect, that
persons belonging to plaintiff's association or sympathetic with its aims had been guilty of forgery, theft of
petitions and fraud, plaintiff could not recover for slander.
OPINION
This appeal is taken from summary judgment in favor of the defendant. The action brought
by appellant as plaintiff is one for slander.
Judgment was based upon the proposition that the slanderous utterance did not have
reference to the plaintiff. Upon this appeal appellant contends that a listener might reasonably
have concluded that the utterance had reference to the appellant and that the question thus
should have gone to the jury.
The record upon which summary judgment was granted consisted of the appellant's
complaint and deposition.
The statement in question was made by respondent at a public hearing held in Sparks,
Nevada, before representatives of the federal Bureau of Public Roads in connection with the
location of an interstate highway through Sparks.
through Sparks. Appellant was an officer of a group known as the United Freeway
Association which advocated one route known as the rim route. Respondent was a member of
the Sparks Freeway Association which advocated a different route.
The statement in question, as set forth in appellant's complaint, was as follows: Now, as
further evidence that this situation exists in the Reno-Sparks area, I wish to call the attention
of the Bureau of Public Roads, the actions of the various freeway organizations. The United
Freeway Organization and/or persons who are sympathetic with them, (since I cannot say that
they were directed by the United Freeway Association since I have no direct knowledge of
that; but certainly they were done either by the Association themselves or persons who were
sympathetic with the Association), have been guilty of forgery of petitions, including the
Mayor of the City of Reno. This has already come out in the paper; this is no news to anyone.
They have also been guilty of changing names from sets of petition; one set to another, those
person or persons. They have also been guilty of keeping on their rolls persons who originally
favored the rim route and who no longer favor the rim route. They have also been guilty of
actual theft of petitions of the Sparks Freeway Association in Sparks, names running up to
four figures.
. . . I say this for this reason, and that is that these petitions have no monetary value
whatsoever so that the only persons who could have possibly been interested in obtaining
these petitions would be either the United Freeway Association or members, or person or
persons unknown who were sympathetic with their cause. They have also had persons
checked on their petitions; these names which have turned out to be names taken from
tombstones and from persons deceased, (I hope they're deceased if they have a tombstone),
and from persons who were not even contacted. And all this is the action of the United
Freeway Association.
. . . [A]s a matter of fact, it's gotten to be so bad now that there are very few people who
even wish to have their names associated with the United Freeway Association because of
the terrible reputation that they have made for themselves in the paper."
Association because of the terrible reputation that they have made for themselves in the
paper.
It is conceded for purposes of argument that the statement, charging forgery, theft of
petitions and fraud, is defamatory of the persons to whom it refers.
The statement makes no reference to any individual. Respondent in effect said, I don't
know who the guilty persons may be. Whoever they are, however, they belong to one of two
classes: either they are members of the United Freeway Association or are nonmembers who
are sympathetic with the association's aims.
From the deposition of appellant it appears that the United Freeway Association was
composed of 12,500 members and that in the opinion of appellant another 15,000 to 20,000
were in sympathy with the aims of the association.
[Headnote 1]
It is clear, under the law, that an individual may not, as a general rule, recover damages for
defamation of a group or class of persons of which he is a member. Louisville Times v.
Stivers, 252 Ky. 843, 68 S.W.2d 411, 97 A.L.R. 277; Noral v. Hearst Publications, 40
Cal.App.2d 348, 104 P.2d 860; see anno. 97 A.L.R. 281-292. When the group or class is large
the defamatory matter must point to, or single out, the plaintiff as the person involved. Hays
v. American Defense Soc., 252 N.Y. 266, 169 N.E. 380; accord Talbot v. Mack, 41 Nev. 245,
169 P. 25.
[Headnote 2]
It is alleged in the complaint that all persons present at the meeting knew that the
statement was made concerning the appellant. In support of this allegation the appellant in his
deposition states that he felt that respondent was talking about him personally. When pressed
for his reasons for such belief he stated, Because I was there representing the United
Freeway Association, and everyone there knew who I was. If others present were of the view
that the statements in any way involved appellant, presumably it was for the same reason. No
other reason is asserted.
Appellant has not shown himself to be personally slandered. He has simply identified
himself with the association. He asserts, in effect, that as far as those present were concerned,
he and the association were one and the same and that slander of one was slander of the other.
This is not sufficient.
Personal humiliation from group slander is not uncommon. When a race, business,
profession or nation is publicly slandered, and when a member of the slandered group is
present and known to others present to be representative of the group, personal humiliation is
inevitable. It is not actionable, however.
The gravamen of the slander in this case is the charge of forgery, theft and fraud. To be
actionable this charge must have been directed at this appellant personally. Such a singling
out cannot be found under any reasonable construction of the language used. The statement
itself expressly negatives such a construction. No listener, then, could reasonably draw such a
conclusion from the statement made.
This being the case, no issues remained for the jury, and summary judgment was proper.
Affirmed.
____________
75 Nev. 282, 282 (1959) Gaudin Motor Co. v. Prieth
GAUDIN MOTOR CO., Inc., Appellant, v.
RICHARD N. PRIETH, Respondent.
No. 4149
May 27, 1959 339 P.2d 764
Appeal from judgment of the Eighth Judicial District Court, Clark County; Ryland G.
Taylor, Judge, Department No. 3.
Action by defaulting buyer of automobile, under conditional sales contract, against
conditional seller, to recover surplus realized after automobile had been repossessed and
resold by seller for sum greater than balance due under contract.
recover surplus realized after automobile had been repossessed and resold by seller for sum
greater than balance due under contract. The lower court entered judgment for buyer, and
seller appealed. The Supreme Court, Merrill, C. J., held that under contract providing for
repossession upon buyer's default, with accompanying right to terminate buyer's rights and
retain automobile and all payments made thereon as rent and compensation for use of
automobile, but providing further that seller might resell automobile, in which case any
surplus proceeds, after deduction of balance due and expenses, should be paid over to buyer,
seller who, upon default of buyer, repossessed automobile and subsequently resold it for sum
exceeding amount due plus expenses, and who gave no notice of election to effect forfeiture
of buyer's equity, would be presumed to have resold for account of buyer.
Judgment affirmed.
See also 74 Nev. 301, 329 P.2d 1069.
Herman E. Fisher, Jr., of Las Vegas, for Respondent.
1. Sales.
Courts should enforce conditional sales contracts, where possible, in such manner as to accomplish their
purpose of providing adequate assurance of payment for vendor and ease of payment for vendee.
2. Sales.
Conditional seller's right to recover a deficiency upon resale after default is consistent with purpose of
conditional sale agreements to provide adequate assurance of payment for seller and ease of payment for
buyer, but it is not necessary to such purpose to permit seller to profit from buyer's default through
effecting forfeiture of buyer's equity.
3. Sales.
Under automobile conditional sales contract providing for repossession upon buyer's default, with
accompanying right to terminate buyer's rights and retain automobile and all payments made thereon as rent
and compensation for use of automobile, but providing further that seller might resell automobile, in which
case any balance received in excess of the amount due plus expenses should be paid over to buyer, seller
who, upon default of buyer, repossessed automobile and subsequently resold it for sum exceeding
amount due plus expenses, and who gave no notice of election to effect forfeiture of
buyer's equity, would be presumed to have resold for account of buyer.
sequently resold it for sum exceeding amount due plus expenses, and who gave no notice of election to
effect forfeiture of buyer's equity, would be presumed to have resold for account of buyer.
4. Sales.
Where, after bank repossessed automobile on buyer's default under a conditional sales contract assigned
bank by seller, bank returned automobile to seller, which secured appraisals thereof from other dealers and
itself submitted highest appraisal, and seller then paid bank balance due, charged such sum and expenses
against its appraisal, and entered balance as credit to buyer's account, transaction was not sale for account
of buyer, within contract provision for resale on default, but was in effect a rescission of assignment to
bank, and hence transaction did not preclude holding that subsequent sale by seller for greater amount was
resale for buyer's account.
OPINION
Respondent Prieth, defaulting purchaser of an automobile under a conditional sale
contract, has brought this action against Gaudin Motor Co. of Las Vegas, the conditional
vendor. The car had been repossessed and resold by Gaudin for a sum greater than the
balance due under the contract of sale. Prieth seeks to recover that surplus. Gaudin contends
that it is entitled to retain it. Judgment of the court below, sitting without jury, was for Prieth
and Gaudin has taken this appeal from that judgment.
The sale to Prieth was for the sum of $3,449.64. Prieth transferred the auto he then owned
for a trade-in credit of $1,000.64, paid $1,000 cash, leaving a balance owing, with carrying
charges, of $1,561.08. This balance he agreed to pay at $130.09 a month.
Prieth defaulted in his obligation. At the time of default he owed a balance of $1,129.74.
The car was repossessed and sold by Gaudin to another purchaser for the sum of $2,425. The
court below found this sum to exceed by $1,072.26 the balance due to Gaudin. It concluded
that under the terms of the contract of sale Prieth was entitled to this sum, and judgment in
Prieth's favor was entered in this amount.
The contract provided, * * * in the event Purchaser defaults on any payments due under
this contract * * * all sums payable hereunder, at option of Seller, shall be immediately due
and payable and Seller may thereupon sue Purchaser for the same * * *. Further upon such
default, Seller * * * may enter upon the premises where said property may be and remove
same. Such repossession shall terminate Purchaser's rights hereunder and Seller may retain
said property and all payments made prior thereto by Purchaser hereunder as rent and
compensation for the use of said property by Purchaser.
Gaudin contends that under this provision of the contract he is entitled to retain the whole
of the proceeds of resale.
Prieth, on the other hand, contends that this provision must be held invalid under the facts
of this case as contrary to public policy. He asserts that a forfeiture of his equity cannot be
justified as liquidated damages but amounts to a penalty. This question we need not decide.
The contract provides a further remedy to the seller. Seller may, but shall not be required
so to do, resell said property, so retaken, at public or private sale, without demand for
performance, with or without notice to the Purchaser * * *; Seller may bid at any such sale.
From proceeds of any such sale, Seller shall deduct all expenses for retaking, repairing and
selling such property including a reasonable attorney's fee. The balance thereof shall be
applied to the amount due; any surplus shall be paid over to Purchaser; in case of deficiency
Purchaser shall pay the same with interest at 7% per annum.
Prieth contends that from facts hereinafter set forth it would appear that Gaudin had
actually elected to pursue this latter remedy. For the purposes of our opinion, however, we
may assume that no election appears and that the conduct of Gaudin was wholly consistent
either with a termination of Prieth's rights or with a resale of the car for his account.
Under this equivocal state of facts, in absence of notice or evidence of election, which
provision of the contract shall be held to apply to the resale?
notice or evidence of election, which provision of the contract shall be held to apply to the
resale?
Gaudin contends that this question should be resolved in favor of the termination of the
purchaser's rights. It asserts that the contract itself provides that this shall be the effect of
repossession unless the seller shall elect otherwise. It suggests that this result is desirable as a
matter of policy, pointing out that in the bulk of repossession cases a deficiency rather than a
surplus is to be expected upon resale and that a presumption against a deficiency obligation
would protect the purchaser against an unscrupulous vendor in the majority of cases.
[Headnotes 1, 2]
We do not so view the matter of policy, however. The various means designed for sales of
chattels on credit have as common purposes adequate assurance of payment for the vendor
and ease of payment for the vendee. The conditional sale contract, as a useful commercial
instrument, seeks to accomplish these purposes by a method simpler than that of the sale with
mortgage back to the vendor. Courts, then, should enforce these contracts where possible, in
such a manner as to accomplish their purpose. G.M.A.C. v. Dickinson, 249 Ky. 422, 60
S.W.2d 967; accord 3 Williston on Sales, p. 231, sec. 579 d. The vendor's right to recover a
deficiency upon resale is consistent with this purpose. It is not necessary to such purpose,
however, to permit the vendor to profit from a purchaser's default through effecting a
forfeiture of the purchaser's equity.
[Headnote 3]
We conclude under the terms of this contract that in the face of an equivocal position by
the vendor and in absence of notice that the vendor elects to effect a forfeiture of the
purchaser's equity it will be presumed that resale is for the account of the purchaser.
[Headnote 4]
In the alternative Gaudin contends that a sale actually was had for the account of Prieth
prior to the resale to which we have referred.
which we have referred. In making this contention it has reference to the following additional
facts.
After execution of the contract of sale Gaudin assigned that contract to the First National
Bank of Nevada. The assignment provided that upon repossession by the bank it could either
recover the balance due from Gaudin or sell the car and recover the deficiency from Gaudin.
It was the bank which had repossessed the car from Prieth. Upon repossession the car was
taken directly to Gaudin's place of business. Gaudin secured written appraisals of the car from
two other Las Vegas dealers and submitted an appraisal itself in the sum of $1,900. Gaudin's
appraisal was the highest of the three. Gaudin then paid the bank the balance due on the
contract, charged this sum and certain expenses against the sum of $1,900 and entered the
balance in the sum of $594.81 as a credit to Prieth's account. This credit entry was not made
until after the resale in question and Prieth was not notified of this transaction or of this credit
until after the resale had taken place.
Gaudin refers to the appraisals as bids and to the appraisal transaction as a sale by the
bank to Gaudin. The appraisals were not bids. They contained no offer to purchase. The bank
did not handle or participate in the transaction. The trial court concluded that the transaction
was but a simulated sale and was not an actual, bona fide sale. We agree with this
construction of the transaction. The bank, then, had not sold to Gaudin but, pursuant to the
terms of the assignment, had simply returned the car and recovered from Gaudin the balance
due, and thus in effect had rescinded its assignment. Gaudin was thus returned to its position
as vendor under the contract and continued subject to its terms.
We conclude that in its resale of the car Gaudin must be held under its contract to have
resold for the account of Prieth. Prieth, then, is entitled to judgment for the excess produced
by that resale.
Affirmed.
____________
75 Nev. 288, 288 (1959) Tryba v. Fray
ICIA ELLEN TRYBA, Appellant, v. RICHARD E. FRAY, Individually and Doing Business
as FRAY WESTERN PLUMBING & HEATING CO., RITA BEEKS, Administrator of the
Estate of Bob Beeks, Deceased, and
SECURITY PROPERTIES CORPORATION, Respondents.
No. 4148
May 27, 1959 339 P.2d 753
Department No. 2.
Action by employee of tenant against landlord and landlord's contractor and subcontractor
for injuries received when she fell into excavation which had been dug by contractors inside
landlord's building in room which she entered and sought to pass through to get to room
where she worked. The lower court rendered judgment against employee on directed verdict,
and employee appealed. The Supreme Court, Badt, J., held that where employee was unable
to see because of darkness when she entered building and sought to pass through the room,
although she knew there was construction work going on in room, what she was entitled to
expect and what she should have anticipated under all circumstances were propositions upon
which reasonable minds might well differ and were for jury.
Reversed.
See also 74 Nev. 320, 330 P.2d 499.
Stewart, Horton and Campbell, of Reno, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondent Richard E. Fray.
Vargas, Dillon and Bartlett, and Alex A. Garroway, of Reno, for Respondent Bob Beeks.
Peter Echeverria, of Reno, for Respondent Security Properties Corporation.
75 Nev. 288, 289 (1959) Tryba v. Fray
1. Trial.
In action by employee of tenant against landlord and landlord's contractor and subcontractor for injuries
received when she fell into ditch which had been dug by contractors inside landlord's building, in room
through which she sought to pass to get to room where she worked, wherein motion was presented for
directed verdict against employee on ground of contributory negligence, employee's evidence and all
inferences reasonably to be drawn from it were to be deemed admitted and interpreted in light most
favorable to employee.
2. Negligence.
Darkness rule is but a specialized example of certain instances in which reasonable minds cannot be
said to differ upon standard of care to be exercised by a plaintiff in his own behalf.
3. Negligence.
Under darkness rule, contributory negligence as matter of law attaches where condition of darkness
renders use of plaintiff's eyesight ineffective when person comes into unfamiliar situation, but darkness
rule does not apply and, therefore, contributory negligence does not attach as matter of law when plaintiff
is entering familiar premises.
4. Landlord And Tenant; Negligence.
Where employee of tenant was unable to see because of darkness when she entered landlord's building
and sought to pass through room which she had traversed many times previously to get to room where she
worked but was injured when she fell into excavation dug by landlord's contractors, fact that she had not
pursued her usual and customary route through room did not supply requirement of unfamiliarity which
would make darkness rule apply, in determining liability of landlord and contractors for negligence.
and sought to pass through room which she had traversed many times previously to get to room where she
worked but was injured when she fell into excavation dug by landlord's contractors, fact that she knew
upon entering that construction work was going on in room did not supply requirement of unfamiliarity
which would make darkness rule apply in determining liability of landlord and contractors for negligence.
and sought to pass through room which she had traversed many times previously, by different route from
route she usually took to get to room where she worked, but she was injured when she fell into excavation
dug by landlord's contractors, and she had known construction work was going on in room, what she was
entitled to expect and what she should have anticipated under all circumstances were propositions
upon which reasonable minds might well differ, and those questions were for jury in
action by her against landlord and contractors.
75 Nev. 288, 290 (1959) Tryba v. Fray
all circumstances were propositions upon which reasonable minds might well differ, and those questions
were for jury in action by her against landlord and contractors.
OPINION
[Headnote 1]
This is an appeal taken by the plaintiff below from a judgment in favor of defendants
below resulting from a directed verdict to such effect. The directed verdict was ordered after
plaintiff had completed presentation of her evidence, on the ground that upon the facts it
appeared as a matter of law that the plaintiff was guilty of contributory negligence. On the
presentation of the motion for directed verdict plaintiff's evidence and all inferences
reasonably to be drawn from it were, of course, to be deemed admitted and interpreted in the
light most favorable to the plaintiff. Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d
1054. As hereinafter noted, the plaintiff's asserted contributory negligence arose out of
circumstances under which she was proceeding in complete darkness, and the directed verdict
for the defendants was the result of the establishment by the court, as a matter of law, of the
standard of care devolving upon the plaintiff under the circumstances. Our conclusion is that
the standard of care required of the plaintiff under the conditions hereinafter recited depended
upon factual issues subject to jury determination, and that it was therefore error to take the
case from the jury.
[Headnote 2]
The cases relied upon by both parties to this appeal deal almost exclusively with the
question of the plaintiff's alleged contributory negligence when plaintiff has proceeded in
darkness in an unfamiliar area and which have generally been referred to as the darkness
cases or the step in the dark cases, with a natural reference to a determination whether or
not the plaintiff's actions established contributory negligence as a matter of law under what a
number of the cases referred to as "the darkness rule" or "the step in the dark rule."
75 Nev. 288, 291 (1959) Tryba v. Fray
under what a number of the cases referred to as the darkness rule or the step in the dark
rule. In this opinion, for want of a better term, we use the expression the darkness rule,
while recognizing that such so-called rule is but a specialized example of certain instances
in which reasonable minds cannot be said to differ upon the standard of care to be exercised
by the plaintiff in his own behalf.
Appellant was employed by Nevada Transit Company, tenant of a building in Reno (the
premises in question) owned by respondent Security Properties Corporation, which engaged
respondent Fray to dig a ditch inside the building. Fray employed respondent Beeks.
Appellant's employment had commenced May 2, 1956 and continued to the time of her
injuries on December 6, 1956. That part of the premises involved comprised a room some 26
feet wide, extending back into a larger area. At the west end of the room was a stairway
leading up to the mezzanine floor where appellant worked. On the north side of this area was
a pair of sliding doors, for the admission of trucks, one of which would open in a westerly
and one in an easterly direction. A few feet to the east was a door facing east in a jog in the
building which would provide entry to the supply room or bus shop, which extended some 40
feet further north, and thence through another door and hallway back into the room where the
accident occurred. Both of the doors last mentioned were locked with padlocks to which
appellant had keys. It was necessary to cross this room (whether by a diagonal course, a
course along the north wall and sliding door, or a course leading south and then west) in order
to reach the stairs to the mezzanine. Any one of these courses would in all probability cross
the ditch herein described. On the morning in question the east sliding door was open about 2
1/2 feet and appellant made her entrance through this opening. This is the precise point inside
the building at which she would have arrived through the two locked doors some 16 or 17
feet to the east if she pursued that course. She had so entered several times in the past when
the sliding door was open, and depending on if the door was open."
75 Nev. 288, 292 (1959) Tryba v. Fray
was open. Whether she entered through the open sliding door or unlocked the two locked
doors to the east thereof, she would proceed across the room to the stairway leading to the
mezzanine.
When leaving her work at four o'clock on the afternoon of December 5, 1956, the day
before her injury, she took a route in a southerly direction from the stairway, proceeding some
12 or 15 feet southerly, to leave the outgoing mail at the service department, thence
approximately the same distance at right angles easterly, then some 20 feet northerly and out
of the building. For a number of days men had been at work constructing a sump some 25 feet
south of the sliding doors. When she left her work on December 5, she noticed men digging
at the sump but did not recall that men were working at the sliding doors. Sometime on the
afternoon of December 5 the workmen started digging a ditch from the sliding doors to the
sump. On leaving she observed no ditch by the door. She did not recall seeing any work being
done between the sump and the doors or seeing any broken concrete. During the day she had
heard the compressors and jack hammers working. The evidence is not conclusive as to
whether the ditch in the immediate area of the sliding doors was dug before or after
appellant's departure at four o'clock that evening.
On the morning of December 6 she approached the partly open sliding door. At the time of
her entry through this door she encountered a man departing through the doorway, who said
nothing to her. The sun was shining on the snow on the ground and appellant was so blinded
that she could not see past the doorway when she entered it. She walked into what appeared
to her as a pitch-black place and could not see where she was going. She took one step,
possibly more, and fell into a ditch that had been constructed extending from the sliding door
to the sump, and was injured by the fall. Material excavated from the ditch was piled along its
easterly bank except for a distance of some feet south of the sliding door, so that there was no
pile or mound to interrupt appellant's progress from her point of entry to the ditch itself.
75 Nev. 288, 293 (1959) Tryba v. Fray
of entry to the ditch itself. The ditch was unguarded and no warning signs were posted or
other warning given.
As noted, the court directed a verdict for the defendants upon the theory that appellant was
guilty of contributory negligence as a matter of law under the so-called darkness rule.
[Headnote 3]
That contributory negligence as a matter of law attaches where a condition of darkness
renders the use of plaintiff's eyesight ineffective is applicable only when a person comes into
an unfamiliar situation has been established as a recognized rule for a great many years.
Contributory negligence does not attach as a matter of law when the plaintiff is entering
familiar premises. Malmquist v. Leeds, 245 Minn. 130, 71 N.W.2d 863; Huus v. Ringo, 76
N.D. 763, 39 N.W.2d 505; Erickson v. McKay, 207 Wis. 497, 242 N.W. 133; See 35 Cal.Jur.
2d Negligence sec. 227; Annotation 163 A.L.R. 587.
In many of the cases cited in the A.L.R. annotation and in the other cases cited supra
where questions arose as to the applicability of the darkness rule, the court held that the
case was one for the jury. We note the language used in Piccolo v. Giant Mills, 21 N.J. Super.
383, 91 A.2d 265, 267, in which a tenant's employee fell into an unguarded elevator shaft by
stepping into it from a dark hallway:
Time does not permit and our present purpose does not require us here to move into view
the avalanche of decisions relative to the judicial propriety of submitting an issue of
contributory negligence or its affinity assumption of risk to the jury, or resolving its existence
as a matter of law. The subject is weather-beaten. Assuredly where reasonable differences of
honest opinion enter concerning the care exercised by the plaintiff and its contributory nature,
there the right of the court to dismiss is put to flight.
This is not a misadventure in which the plaintiff groped in the dark' or entered premises
with which he was unfamiliar. * * * Reference is made by both parties to Nevada Transfer
& Warehouse v. Peterson, 60 Nev. S7, S9 P.2d S, 99 P.2d 633, and Seavy v. I.X.L. Laundry,
60 Nev. 324
75 Nev. 288, 294 (1959) Tryba v. Fray
Reference is made by both parties to Nevada Transfer & Warehouse v. Peterson, 60 Nev.
87, 89 P.2d 8, 99 P.2d 633, and Seavy v. I.X.L. Laundry, 60 Nev. 324, 108 P.2d 853. Neither
of these cases can be said to be in point, although both involved application of the darkness
rule. It is unnecessary to discuss these cases. We may note, however, that in both cases the
plaintiff's contributory negligence was held to be a question of fact for the jury.
[Headnote 4]
Respondents contend that contributory negligence attached because the plaintiff did not
pursue her usual and customary route. It is our opinion that the contention is not well taken.
No rule requiring plaintiff to pursue a usual and customary route can supply the requirement
of the darkness rule that it apply only in the case of entering an unfamiliar area. In addition
to this we may note that it would appear that entry through the sliding doors appeared to be
the usual and customary route when one of the sliding doors was open, and further, that for
plaintiff to have entered through the two padlocked doors to which she had keys would have
entailed simply traversing a longer route to get to the precise point at which she entered
through the opened sliding door.
In Packard v. Kennedy, 4 Ill. App.2d 177, 124 N.E.2d 55, 60, the court said:
* * * [T]his is not a case where, as defendants suggest, plaintiff had two choices, one
dangerous and one safe, and deliberately chose the perilous course, for although reasonable
men might differ as to the wisdom of plaintiff's choice, clearly her conduct was not of such a
nature that all reasonable men would agree that she was palpably negligent, and therefore,
that issue was properly submitted to the jury.
[Headnote 5]
Respondent Beeks further supports such directed verdict in the following language:
[Appellant] attempts to distinguish her situation [from those in which the injured person
has proceeded in darkness in an unfamiliar area] because her employment for some time
previous to the accident acquainted her with the large room where the accident occurred
and she was familiar with the area and had traversed it many times.
75 Nev. 288, 295 (1959) Tryba v. Fray
injured person has proceeded in darkness in an unfamiliar area] because her employment for
some time previous to the accident acquainted her with the large room where the accident
occurred and she was familiar with the area and had traversed it many times. However, she
was not familiar with the condition created outside and inside that building [because], the
workmen who had been there several days before the accident and whose activities previous
to December 6th had so attracted her attention that she remarked to one workman whom she
met at the door just before she fell: Are you going to be horsing around here all day today?'
That remark shows that she knew that work was being done. Because she did not know its
exact nature or purpose and did not observe where the men were working, she had a duty to
herself to be on guard every time she entered or left the premises, to see where the work was
being done. Therefore, she was not familiar with the place at the time of the accident and had
previous notice of possible changes in the place with which she had been familiar before the
work began.
Respondents thus contend that knowledge that construction work is in progress in the
room entered renders the darkness rule applicable to cases involving familiar premises. No
authorities are cited for this proposition and we are not inclined so to extend the so-called
rule. Indeed, authority would seem to be contrary to such a proposition. See Malmquist v.
Leeds, 245 Minn. 130, 71 N.W.2d 863.
[Headnote 6]
In the case at bar it was necessary for plaintiff to enter and traverse the room in question in
order to arrive at her place of employment. What she was entitled to expect and what she
should have anticipated under all of the circumstances are propositions upon which
reasonable minds might well differ.
The so-called darkness rule, then, can have no application to the facts of this case, and
the question of contributory negligence should have remained a question for the jury.
75 Nev. 288, 296 (1959) Tryba v. Fray
Whether where darkness is the result of temporary blindness, application of the so-called
darkness rule is an unwarranted extension we do not here decide. In the light of our opinion
a consideration of this question becomes unnecessary.
Appellant assigns further error in the admission of certain evidence. Discussion of such
assignment is not necessary.
Reversed with costs and remanded for new trial.
Merrill, C. J.: I concur.
McNamee, J. (concurring):
I concur in the result, but the reasons for my conclusion follow.
The doctrine of assumption of risk although usually limited to controversies between
master and servant may also apply to preclude recovery in negligence cases. This doctrine has
been held applicable to the situation under the so-called darkness rule which provides that
where a person goes forward into an unfamiliar dark place, he does so at his own risk.
Wentink v. Traphagen, 138 Neb. 41, 291 N.W. 884; Bianchi v. South Park Presbyterian
Church, 123 N.J. Law 325, 8 A.2d 567, 124 A.L.R. 808.
The darkness rule, however, is more often considered in connection with the doctrine of
contributory negligence. See 65 C.J.S., sec. 121, p. 731. Whether a given state of facts
constitutes contributory negligence as a matter of law or whether it should go to the jury
depends entirely on the existing circumstances in each particular case. Here the negligence of
the respondents is conceded, and it is not necessary to consider further the doctrine of
assumption of risk.
The authorities seem to recognize the following broad general rules:
1. To proceed in the dark in a strange or unfamiliar place is negligence as a matter of law;
2. To proceed in the dark in a familiar place is not negligence as a matter of law;
3. To proceed in the dark in a familiar place but which has been subjected to unknown
changed conditions is not negligence as a matter of law;
75 Nev. 288, 297 (1959) Tryba v. Fray
which has been subjected to unknown changed conditions is not negligence as a matter of
law;
4. To proceed in the dark in a familiar place which has been subjected to known changed
conditions is negligence as a matter of law;
5. (As a necessary corollary resulting from 3 and 4:) To proceed in the dark in a familiar
place which has been subjected to changed conditions and it is questionable under the
evidence whether the changed conditions were known or should have been known or were
not known is a factual question for the jury and is not negligence as a matter of law. See 65
C.J.S. Negligence, sec. 254, p. 1154 and cases in Notes 18 and 19.
From the evidence in the record on appeal reasonable men could differ whether the
changed conditions were known or should have been known to appellant, and consequently it
was error to take this issue from the jury.
____________
75 Nev. 297, 297 (1959) Swartout v. Grover Collins Eng'rs
GLENN SWARTOUT, Appellant, v. GROVER COLLINS DRILLING MUD ENGINEERS
AND MATERIALS, a Corporation, CASEY & MONTGOMERY, INC., a Corporation, and
JAMES H. CASEY and ROBERT B. MONTGOMERY CO., Partnership Doing Business as
The Amazon Supply Company, Respondents.
No. 4153
May 28, 1959 339 P.2d 768
Department No. 1.
Action to recover for supplies, material and oil well-drilling services. The lower court
entered judgment for plaintiffs and defendant appealed. The Supreme Court, Badt, J., held
that there was sufficient evidence to sustain finding that defendant, while allegedly acting as
officer for corporation, contracted with plaintiffs with representation that he himself
would be personally liable for the bills.
officer for corporation, contracted with plaintiffs with representation that he himself would be
personally liable for the bills.
Affirmed.
Zenoff and Magleby, of Las Vegas, for Appellant.
G. William Coulthard, of Las Vegas, for Respondents.
1. Corporations.
Even if party contracting for materials and supplies and oil well-drilling services, was an officer of
corporation and plaintiffs knew of corporation and knew defendant was an agent thereof, such facts would
not diminish legal effect of defendant's express undertaking to pay or his express assertion of responsibility
for payment, as a result of which credit was extended.
2. Corporations.
In plaintiffs' action to recover from defendant for materials, supplies and oil well-drilling services,
evidence sustained trial court's finding that defendant, who was officer of corporation, personally
undertook to pay and assume responsibility for obligations incurred under contract.
OPINION
Appellant has appealed from judgment in favor of the respective respondents in varying
amounts for supplies, material, and well-drilling services. The only contention raised by
appellant is that the evidence discloses that he contracted the obligations as agent for Bonanza
Oil Company, a corporation, and not as a principal; that such fact was disclosed by the
evidence of respondents themselves and that the court erred in the first instance in denying
the motion made by appellant at the conclusion of respondents' case for an order of
involuntary dismissal, and, in the second place, in finding that appellant was personally
responsible as a principal.
In support of these assignments of error appellants call attention to certain portions of the
evidence referring to Bonanza Oil Company, including a proposed form of formal contract
drawn by Casey & Montgomery, Inc. in which Bonanza Oil Company was named as the
other contracting party, but which was never executed, to certain billings against
Bonanza Oil Company, and to a check signed by Glenn Swartout in the sum of $10,000
payable to Casey & Montgomery Drilling Cont.
Inc. in which Bonanza Oil Company was named as the other contracting party, but which was
never executed, to certain billings against Bonanza Oil Company, and to a check signed by
Glenn Swartout in the sum of $10,000 payable to Casey & Montgomery Drilling Cont. on the
face of which was noted, Advance for Bonanza. All of these items were explained by
respondents to the apparent satisfaction of the court, and the respondents in turn definitely
testified to conversations with appellant, whose general purport and effect was that he,
Swartout, was the person with whom the respondents were dealing as a principal. Grover
Collins testified: The first time that I saw [Mr. Swartout] was around the first of April when
I flew over to find out with whom I was doing business. My conversation was, Mr. Swartout,
with whom am I doing business here?' and he said: Well, basically I am drilling the well,
however I expect sometime to be able to promote money, after we get it down, but any
relations you have with me will be handled by me personally in regard to payment of any
bills.' When pressed on this point on cross examination, he testified: [Mr. Swartout] said,
You are doing business with me, but,' he said, I plan to sell some stock and promote after I
get this well down to a particular depth.' If he hadn't told me that I most certainly wouldn't
have done business with him.
At the conclusion of the trial the court said from the bench: In this case the court finds
Mr. Swartout has contended in court the claims are the obligation of the Bonanza Oil
Company; that as an officer of the company, and as an employee also, he was authorized to
obligate the company for the amounts of these claims * * *.
The evidence shows Swartout held himself out as principal to the plaintiffs and that
plaintiffs were dealing with him only and not with the company. He is now estopped because
of his conduct in this regard from denying the fact that he was acting as principal and would
be personally responsible for the obligations. This court could come to no other reasonable
conclusion. Nobody is going to deal with a corporation they know nothing about. The fact he
might also be acting as agent for an undisclosed principal, which he in fact was, evidently
from his testimony, does not negate his liability.
for an undisclosed principal, which he in fact was, evidently from his testimony, does not
negate his liability. It merely adds undisclosed liability.
This brief decision from the bench was carried out in the formal findings, conclusions, and
judgment.
[Headnote 1]
Appellant points to parts of the transcript as evidence of the fact that the respondents were
aware of Bonanza Oil Company, appellant's corporation, not only after respondents extended
credit but also at times when the credit was extended. We may assume this to be so. We may
even assume further, arguendo, that Bonanza Oil Company was a disclosed principal, that it
had authorized appellant to act, and that appellant's agency was known to respondents. Such
situation would not diminish the legal effect of appellant's express undertaking to pay or his
express assertion of his personal responsibility for payment, as a result of which the credit
was extended. His liability is predicated not upon his agency but upon his contract obligation.
Cumberland Portland Cement Co. v. Reconstruction Finance Corp., 140 F. Supp. 739,
affirmed Ralph Rogers & Co. v. R.F.C., 6 Cir., 232 F.2d 930; 3 C.J.S. Agency sec. 215(c).
In Siler v. Perkins, 126 Tenn. 380, 149 S.W. 1060, 1061, 47 L.R.A. (n.s.) 232, the court
said:
* * * [A]n agent who, acting within the scope of his authority, enters into contractual
relations for a disclosed principal, does not bind himself, in the absence of an express
agreement to do so,' yet it is also true that whether such an agent does by such a transaction
bind himself depends on the intention of the agent and the person dealing with him, and this
intention must be gathered from the facts and circumstances of each particular case. And it is
the disclosed intention that governs, and not some hidden intention of the agent; and so the
agent may become personally liable, although this be contrary to his actual intention, if he has
in fact bound himself according to the terms of the contract.
The above principle is recognized by many authorities. See U.S. Shipping Board Merchant
Fleet Corp. v. Hartwood, 281 U.S. 519, 50 S.Ct. 372, 74 L.Ed. 1011; Wartman v. Shockley,
154 Pa.
Wartman v. Shockley, 154 Pa. Super. 196, 35 A.2d 586; Currie v. Humble Oil & Refining
Co., Tex. Civ. App., 16 S.W.2d 867.
[Headnote 2]
Appellant, in his testimony before the trial court, without a jury, categorically denied that
he had made the statements attributed to him or that he had at any time stated that he
personally or as a principal was incurring the obligations or would be responsible for the bills.
It is apparent that the trial court rejected his testimony and accepted that of respondents. With
the court's findings resulting from such conflict in the evidence, this court will not interfere.
Merrill, C. J., and Bowen, D. J., concur.
(McNamee, J., being disqualified, the Governor designated Honorable Grant L. Bowen,
Judge of the Second Judicial District Court, to act in his place.)
____________
75 Nev. 301, 301 (1959) Nat'l Auto. & Cas. Ins. v. Havas
NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, a Corporation,
Appellant, v. VICTOR HAVAS, Doing Business as
VIC HAVAS MOTORS, Respondent.
No. 4135
May 29, 1959 339 P.2d 767
Appeal from judgment of the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, Department No. 1.
Action by used car dealer against insurer for loss resulting from theft of a house trailer
which was, at time of theft, located on one of dealer's lots which was not specified in
insurance policy as a location covered by the policy, which provided that if same theft and
collision rates applied to all locations, no listing of locations was required. From adverse
judgment of the lower court the insurer appealed.
court the insurer appealed. The Supreme Court held that evidence was insufficient to
establish that different rates applied to the different lots.
Judgment affirmed.
Zenoff & Magleby, of Las Vegas, for Respondent.
1. Insurance.
In action by used car dealer against insurer for loss resulting from theft of a house trailer which was, at
time of theft, located on one of dealer's car lots which was not specified in insurance policy as a location
covered by policy, which provided that if same theft and collision rates applied to all locations no listing of
locations was required, evidence was insufficient to establish that different rates applied to the different
lots.
2. Insurance.
When an insured has proved a loss apparently within the terms of the policy, burden is on insurer to show
that such loss was produced by a cause which is excepted from the coverage.
OPINION
Per Curiam:
This action is brought upon an insurance policy to recover a loss resulting from theft of a
house trailer. The insurance company has appealed from judgment for the plaintiff rendered
by the trial court sitting without jury. It contends that its obligation under the terms of the
policy does not cover the loss involved in this case.
[Headnote 1]
Plaintiff is engaged in the used-car business in Las Vegas. The insurance company has
issued to the plaintiff its policy insuring against loss of motor vehicles by theft. The general
insuring agreement of the policy is to pay for loss of or damage to the automobile hereinafter
called loss caused by theft * * *. The policy further specifies, The policy covers
automobiles consigned to or owned by the insured and held for sale or used in the insured's
business as an automobile including repair service or as demonstrators, but excludes
automobiles sold by the insured under bailment, lease, conditional sale, mortgage or
other type of encumbrance."
repair service or as demonstrators, but excludes automobiles sold by the insured under
bailment, lease, conditional sale, mortgage or other type of encumbrance.
There are limitations upon liability, however. The policy specifies that it applies to losses
incurred at 4000 Fremont Street, Las Vegas, and provides, No liability shall attach hereunder
at other locations owned, rented or controlled wholly or in part and used by the insured as a
place of display or storage of automobiles * * * unless such location has been reported by the
insured to the company.
The stolen trailer was, at the time of the theft, situated upon plaintiff's car lot in Las Vegas.
That lot was not specified in the insurance policy as a location covered by the policy. The
insurance company contends that under the quoted provision of the policy such specification
was a necessary condition to liability.
The policy further provides, however, If the same theft and collision rates apply to all
locations, no listing of locations is required.
The record contains no evidence as to the premium rate applicable to the lot upon which
the trailer was located. There is, then, no evidence which would support a finding upon the
issue of a difference in premium rates at the two locations. Under these circumstances the
appellant has failed to meet its burden of proof in establishing that this exception to liability
existed.
[Headnote 2]
It is well established that when an insured has proved a loss apparently within the terms of
the policy, the burden is on the insurer to show that such loss was produced by a cause which
is excepted from the coverage. Zuckerman v. Underwriters at Lloyds, London, 42 Cal.2d 460,
267 P.2d 777; See also Anno. 48 A.L.R.2d 72, sec. 21.
Affirmed.
(McNamee, J., having disqualified himself, the Governor designated Honorable Taylor H.
Wines, Judge of the Fourth Judicial District Court to sit in his place and stead.)
____________
75 Nev. 304, 304 (1959) Sutherland v. Sutherland
VERA GRACE SUTHERLAND, Appellant, v. JAMES
WALTER SUTHERLAND, Respondent.
No. 4151
June 3, 1959 340 P.2d 581
Appeal from judgment of the Eighth Judicial District Court, Clark County; Peter Breen,
Divorce action. The trial court entered a decree of divorce, and wife appealed. The
Supreme Court, Georgetta, District Judge, held that evidence sustained finding that plaintiff,
who was a citizen of Canada, but who had obtained a visa which allowed him to remain in
the United States and in the State of Nevada indefinitely, had the necessary residential intent.
Judgment affirmed.
Hawkins & Cannon, of Las Vegas, for Appellant.
G. William Coulthard, of Las Vegas, for Respondent.
1. Witnesses.
In view of fact that several months before plaintiff filed suit for divorce, he was residing in the state under
a visa which allowed him to remain in United States and in state indefinitely, although still a citizen of
Canada, question of whether or not plaintiff was legally permitted to work while in the United States
pursuant to a visitor's permit issued to him prior to time he obtained visa allowing him to remain in the
United States indefinitely was immaterial, and plaintiff was not required to answer as to whether under his
visitor's permit he was allowed to work in the United States or whether at one time he had been in the
United States on a student's permit.
2. Divorce.
In divorce action, evidence sustained finding that plaintiff, who was a citizen of Canada, but who had
obtained a visa which allowed him to remain in the United States and in State of Nevada indefinitely, had
the necessary residential intent.
3. Divorce.
Where there is substantial evidence to support a finding of residential intent in a divorce action, the
Supreme Court will not disturb such finding.
4. Divorce.
Where parties separated physically in April 1954, but intent not to resume cohabitation was first asserted
by husband in November 1954, when he wrote his wife a letter to that effect, period of
separation which could constitute a ground for divorce began as of date in November
1954, when husband wrote wife, and where such separation continued uninterrupted
until action was filed by husband in December 1957, three-year period of separation
required for divorce existed.
November 1954, when he wrote his wife a letter to that effect, period of separation which could constitute a
ground for divorce began as of date in November 1954, when husband wrote wife, and where such
separation continued uninterrupted until action was filed by husband in December 1957, three-year period
of separation required for divorce existed. NRS 125.010, subd. 9.
5. Divorce.
Under statute authorizing a divorce based on three years' separation, the court may grant a divorce even
though a child is involved, and even though there is an absence of any showing that the divorce will be for
the best interest of the child. NRS 125.010, subd. 9.
6. Evidence.
In divorce action, trial court did not err in excluding evidence tending to show that plaintiff had obtained
a decree of separate maintenance in Canada by fraud and deceit, where such evidence consisted of a copy
of some record from a Canadian court which was not properly authenticated.
7. Divorce.
A divorce may, in the discretion of the court, be granted on the ground of three years' separation, even
though the plaintiff was the party most at fault. NRS 125.010, subd. 9.
8. Divorce.
Where an action for divorce on ground of three years' separation was dismissed on ground that when
complaint was filed the full three years' period of separation had not elapsed, dismissal of such complaint
was no bar to a complaint for divorce on the same ground filed after the full period required by the statute
had elapsed. NRS 125.010, subd. 9.
9. Judgment.
Generally, whenever a cause of action depends upon the passage of a period of time and springs into
existence at a given date, a premature attempt to assert it is no bar to successful prosecution of the cause of
action after it has matured.
OPINION
By the Court, Georgetta, District Judge:
This is an appeal taken by the wife from a decree of divorce rendered in favor of the
husband on the ground of having lived separate and apart for three consecutive years without
cohabitation. (NRS 125.010; sec. 9.)
The appellant and respondent will be designated and referred to herein as defendant and
plaintiff, respectively.
Facts: The facts which are pertinent to this appeal are the following:
1. Plaintiff and defendant were married on March 18, 1944, in Hampshire, England.
Thereafter they lived in Canada; later in Trenton, New Jersey, and then again in Canada.
2. From 1948 to 1950, the plaintiff was in the United States on a student permit.
3. On July 16, 1951, there was born as issue of this marriage a son, James Lawrence
Sutherland, now approximately eight years old, who is in the physical care of the defendant
wife.
4. On April 24, 1954, while plaintiff and defendant were again residing in Canada, the
defendant wife desired to visit her relatives in England and take the child with her. The
plaintiff husband consented and advanced to the wife the funds necessary for the trip. The
separation at that time was apparently voluntary on the part of both plaintiff and defendant
but without any intent on the part of either to permanently discontinue cohabitation or to
terminate the marriage.
5. On November 10, 1954, the plaintiff husband sent the defendant wife, then in England,
a letter in which he indicated a desire to terminate the marriage relationship. Subsequent
correspondence indicated that on the day he wrote the letter of November 10, 1954, he had
then decided he would no longer cohabit with the defendant wife. There was no cohabitation
between plaintiff and defendant after the wife left for England on or about April 24, 1954,
and from the evidence it appears that a reconciliation is not possible. The trial judge found
this to be a fact.
6. In July, 1955, while in the United States under a visitor's permit, the plaintiff husband
came to Las Vegas, Nevada, where he became employed. In January, 1956, he left Las Vegas
and went to Niagara Falls for the purpose of obtaining, and did obtain, a visa which enabled
him to remain in the United States permanently. He returned to Las Vegas, Nevada in April,
1957.
7. On May 20, 1957, the plaintiff husband filed an action for divorce upon the ground of
three years' separation.
action for divorce upon the ground of three years' separation. (Eighth Judicial District Court,
Department 1, Case No. 84646.) In that case, the trial court dismissed his complaint on the
ground that the period of separation, which could constitute ground for divorce, began on
November 10, 1954, and the full three years had not elapsed when that complaint was filed.
8. On December 4, 1957, the plaintiff husband filed the present action for divorce on the
ground of three years' separation. The defendant wife contested the action. The trial court
granted the plaintiff husband a divorce. The defendant wife then brought the case to this court
on appeal.
Points of Law To Be Determined
The issues of law raised on this appeal are the following:
I. Domicile: Whether or not a valid legal domicile was established in the State of
Nevada by the plaintiff husband prior to filing his complaint in this case on the fourth day
of December, 1957.
On the issue of domicile the defendant urges that the trial court committed error in
sustaining the objection to the plaintiff's being required to answer whether, under a visitor's
permit, he was allowed to work in the United States.
When the plaintiff first came to Las Vegas, in July, 1955, he was in the United States
pursuant to a visitor's permit, which did not allow him to remain indefinitely.
When the plaintiff returned to Las Vegas in April, 1957, he was still a citizen of Canada,
but was then in the United States pursuant to a visa which allowed him to remain in the
United States, and the State of Nevada, indefinitely. Therefore, at this time, in April, 1957,
his legal status provided no obstruction to an intent to make his home in Nevada for an
indefinite period of time.
[Headnote 1]
In the light of this fact, it became immaterial whether or not the plaintiff was legally
permitted to work while in the United States pursuant to a visitor's permit, prior to the
time he obtained a visa which allowed him to remain in the United States indefinitely.
in the United States pursuant to a visitor's permit, prior to the time he obtained a visa which
allowed him to remain in the United States indefinitely. Therefore, the trial court committed
no error when it held the plaintiff was not required to answer as to whether, under his visitor's
permit, he was allowed to work in the United States, or whether, at one time, he had been in
the United States on a student's permit.
[Headnotes 2, 3]
The trial court found that the plaintiff had the necessary residential intent. We find in this
record, substantial evidence to support this finding. Therefore, we will not disturb the finding
of the trial court upon this point. Miller v. Miller, 37 Nev. 257 (1914), 142 P. 218; Green v.
Henderson et al., 66 Nev. 314 (1949), 208 P.2d 1058.
We conclude that the defendant's contention that the plaintiff failed to establish a bona fide
domicile in Nevada is without merit.
II. The Period of Separation: Whether or not the period of separation relied upon to
constitute the three years required by the Nevada Statute (NRS 125.010, sec. 9), existed in
this case.
[Headnote 4]
The evidence establishes, and the trial court found, that the parties separated physically on
or about the 24th day of April, 1954, when the wife went to England, but the intent not to
resume cohabitation was first asserted by the husband on the tenth day of November 1954,
when he wrote the wife a letter to that effect. The court below ruled that the period of
separation which could constitute a ground for divorce under the Nevada Statute (NRS
125.010, sec. 9) began as of November 10, 1954, and continued uninterrupted until this action
was filed by the husband on December 4, 1957, which was three years and twenty-four days
later. This was proper. Caye v. Caye, 66 Nev. 83 (1949), 211 P.2d 252.
III. Discretion of the Court: Whether or not under the Nevada Statute (NRS 125.010,
sec. 9), in an action for divorce based on the three years' separation ground, the court has
discretion to grant a divorce in a case where a child is involved, in the absence of any
showing that a divorce will be for the best interests of the child.
a case where a child is involved, in the absence of any showing that a divorce will be for
the best interests of the child.
[Headnote 5]
Counsel for the defendant wife press this point strongly, and contend that in the absence of
a showing that a divorce will be for the best interest of the child, the court has no legal
discretion to grant a divorce, or if it has such discretion, it should not be so exercised. No
reason is given and no authorities are cited. With this contention we do not agree.
In the record before us on this appeal, there is no indication that the learned trial judge did
not consider the best interests of the child in the exercise of his discretion under the statute.
The parties are separated. The lower court found, on substantial evidence, that there is no
probability of a reconciliation. If there be some reason why the interests of the minor child
would be advanced by having these parties, who are separated and unreconciled, continue in
the married status, it has not been suggested by the defendant. Accordingly, we find no abuse
of discretion by the lower court in regard to this issue.
IV. Excluded Evidence of Adverse Conduct: Whether or not it was reversible error for
the trial court to exclude evidence that the plaintiff had obtained a decree of separate
maintenance in Canada by fraud and deceit.
[Headnote 6]
Counsel for the defendant wife have urged as assignment of error No. 4, the fact the trial
court did not permit the defendant to show that the plaintiff husband had obtained in Canada
a decree of separate maintenance without proper service of process upon the wife, and that he
later consented to a dismissal.
An examination of the record discloses that in an effort to prove the above-mentioned fact,
counsel for the defendant endeavored to place in evidence a copy of some record from a
Canadian court which was not properly authenticated. Therefore, the trial court committed no
error in sustaining the objection of opposing counsel, even though the fact sought to be
established may have been admissible if properly presented.
no error in sustaining the objection of opposing counsel, even though the fact sought to be
established may have been admissible if properly presented.
V. The Plaintiff's Fault or Adverse Conduct: Whether or not the decision of the trial
court should be reversed because of fault, or adverse conduct on behalf of the plaintiff.
[Headnote 7]
The defendant contends the decision should be reversed, because the evidence shows the
plaintiff husband deserted the defendant wife.
We find no merit in this contention. It is now well established by our former decisions that
in the State of Nevada a divorce may, in the discretion of the court, be granted on the ground
of three years' separation to the party most at fault. Fausone v. Fausone 75 Nev. 222 (April
21, 1959), 338 P.2d 68; and previous decisions of this court to the same effect.
VI. Res Judicata: Whether or not the dismissal of the action of divorce filed by the
plaintiff husband on May 25, 1957 (Case No. 84646), is a bar to the present action.
[Headnote 8]
Defendant wife contends that the dismissal of the first complaint is a complete bar to the
second complaint, because both were based on the ground of three years' separation.
We find no merit in this contention. When the first complaint was filed, the full three
years' period of separation had not yet elapsed. The dismissal of that complaint was no bar to
a complaint filed after the full period required by the statute had elapsed.
This is not the same situation as where the ground of cruelty consists of specific acts or
events that took place at specific times and places, as in the case of Barber v. Barber, 47 Nev.
377 (1924), 222 P. 284, 39 A.L.R. 706, relied upon by counsel.
[Headnote 9]
Generally speaking, wherever a cause of action depends upon the passage of a period of
time and springs into existence at a given date, a premature attempt to assert it is no bar
to successful prosecution of the cause of action after it has matured.
springs into existence at a given date, a premature attempt to assert it is no bar to successful
prosecution of the cause of action after it has matured. By analogy, if a promissory note is
payable one year after date, and the holder files suit upon it after the lapse of only nine
months, would the due date then be put ahead one year from the time the premature
complaint is dismissed? Would the holder of the note be required to wait another full year
from that date before he could again file suit on the note? The answer is all too obvious, but
this is exactly the situation in this case before the court.
The evidence and the finding of the trial court has established that the three years'
separation period required to constitute a ground for divorce began on November 10, 1954,
and would end on November 9, 1957. The fact that a complaint was filed prematurely in
April, 1957, about seven months before the cause of action would accrue, and was properly
dismissed, could not be a bar to filing another complaint after the cause of action had accrued.
Defendant contends the three years' period would have to begin all over again and run
from the dismissal of the first complaint. The fallacy is too obvious to require further
comment or the citation of any authorities.
The court being of the opinion that the decree of divorce was properly granted and finding
no reversible error, the judgment and order denying a new trial are affirmed without costs.
McNamee, J., having disqualified himself, the Governor designated Honorable Clel
Georgetta, Judge of the Second Judicial District Court to sit in his place and stead.
____________
75 Nev. 312, 312 (1959) Opaco Lumber v. Phipps
OPACO LUMBER & REALTY CO., a Nevada Corporation, Appellants, v. E. V. PHIPPS
and LYDA F. PHIPPS, His Wife, Respondents.
No. 4154
June 5, 1959 340 P.2d 95
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Action to foreclose a mechanic's lien for materials used in construction of residence
brought by lien claimant who, after time for answering had expired, filed with clerk of trial
court his praecipe for default and also presented for signing and filing by the clerk a written
form of default, which clerk filed but failed to sign. The lower court denied motion to strike
the answer on ground that answer had been filed after entry of default and entered judgment
for defendants and lien claimant appealed. The Supreme Court, Merrill, C. J., held that a
default judgment had not been entered and there was no abuse of discretion in refusing to
strike the tardy answer, but that claimant was entitled to lien for such part of building material
as it actually delivered to building site or for such materials as it could prove had gone into
the structure subsequent to payment on account during course of construction.
(Petition for rehearing denied June 29, 1959.)
Robert Callister, of Las Vegas, for Appellant.
Cory, Denton & Smith, of Las Vegas, for Respondents.
1. Judgment.
Under rule which permits a default, once entered, to be set aside for good cause shown, lack of such
cause does not deprive court of jurisdiction to entertain answer. NRCP 55(c).
2. Judgment.
The rule providing that when a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, the clerk shall enter his default, contemplates a ministerial determination by
clerk and that the determination shall be recorded by the clerk through his entry of default and manner
in which default is entered must demonstrate that the clerk has given his attention to
the particular matter.
default and manner in which default is entered must demonstrate that the clerk has given his attention to the
particular matter. NRCP 55(a).
3. Mechanics' Liens.
Where after time for answering in mechanic's lien foreclosure proceeding had expired, lien claimant filed
with clerk of trial court its praecipe for default and also presented for signing and filing by clerk a written
form of default which was filed but not signed by the clerk, a default had not been entered. NRCP 55(a,
c).
4. Pleading.
In action to foreclose a mechanic's lien brought by lien claimant who after time for answering had
expired, filed with clerk of trial court his praecipe for default and also presented for signing and filing by
the clerk a written form of default which clerk filed but failed to sign, where there was no showing that
failure of defendants to plead within the time provided had occasioned any injury or delay to lien claimant,
denial of motion to strike tardy answer of defendants was not an abuse of discretion. NRCP 55(a, c).
5. Mechanics' Liens.
Where record showed that materials which were subject of action to foreclose mechanic's lien were
delivered to building site subsequent to date of payment during course of construction and that the
payments had no relation to the subsequent deliveries, lien claimant was entitled to lien for such part of
building materials as it actually subsequently delivered to building site or for such materials as could be
proved to have gone into the structure.
OPINION
This action is brought to foreclose a mechanic's lien for materials used in the construction
of respondents' residence in Las Vegas. The lien claimant has taken this appeal from
judgment for the respondents rendered by the trial court sitting without jury.
The first question raised by the appeal is whether the filing, unsigned, of a document
entitled default can be construed as entry of default by the clerk. Appellant moved the trial
court for an order striking the answer of respondents, basing its motion upon the ground that
the answer had been filed after entry of default. The trial court concluded that default had not
been entered and denied the motion.
[Headnote 1]
Appellant recognizes that under NRCP 55(c) default, once entered, can be set aside for
good cause shown. Appellant contends, however, that no cause whatsoever was shown
which would have justified the setting aside of a default; that under these circumstances it
was error or abuse of discretion to deny its motion to strike. We have already held, upon
application for writ of certiorari, that lack of such cause would not deprive the court of
jurisdiction to entertain an answer. Opaco Lumber Company v. District Court, 73 Nev. 278,
317 P.2d 957.
The record discloses the following facts: After the time for answering had expired
appellant filed with the clerk of the trial court its praecipe for default and also presented for
signing and filing by the clerk a written form of default. The latter was filed, but the clerk
failed to sign it.
Appellant contends that this ministerial oversight should be regarded as cured by the fact
of filing. It emphasizes that, in filing the document, the clerk had, by signature, attested the
fact of filing. Appellant contends that this signature should serve to meet any formalities
necessary to an entry of default.
[Headnote 2]
The clerk's ministerial duty to receive and file documents tendered for filing, is entirely
separate from its duty under NRCP 55(a) to enter default. That rule provides: When a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the
clerk shall enter his default.
Default, thus, is not automatic. The rule contemplates a ministerial determination by the
clerk and that this determination shall be recorded by the clerk through his entry of default.
The manner in which default shall be entered is not specified. It must, however, by some
means, demonstrate that the clerk had given his attention to the particular matter.
[Headnote 3]
Compliance by the clerk with his duties with respect to the filing of a document in no way
indicates that the matter of default has had his attention. The trial court was not in error in
concluding that default had not been entered in this case.
Appellant next contends that the trial court under these circumstances should have ordered
entry of default, nunc pro tunc, since it is clear upon the facts that appellant was entitled to
entry of default at the time the praecipe was filed.
The consideration of a plaintiff's right to a nunc pro tunc entry of default may well be one
approach to the problem of his right to have stricken a tardy answer of the defendant. This
court has taken a different approach, however.
In Scheinwald v. Bartlett, 51 Nev. 155, 271 P. 468, this court held that in absence of entry
of default it is discretionary with the trial court to permit an answer to be filed. It was there
stated, 51 Nev. 158, 271 P. 469, The default of respondent has not been entered. There is a
verified answer on file. The court, in our opinion, has discretion to deal with it as the justice
of the case may require.
[Headnote 4]
In the present case there is no showing that failure of respondents to plead within the time
provided had occasioned any injury or delay to appellant. Accordingly we find no error or
abuse of discretion in the denial of appellant's motion to strike.
[Headnote 5]
Appellant next attacks the judgment for respondents as contrary to the undisputed facts.
The trial court found that appellant had delivered materials of a value of $1,344.54 to
respondents' building contractor. It further found, however, that not all of these materials
were delivered to respondents' building site. It concluded that appellant was not entitled to
any lien at all.
It is conceded that while there may be a dispute as to whether all of the materials were
delivered to respondents' building site or used in their building, it is undisputed that some of
the materials were so delivered or used.
Respondents contend, notwithstanding, that appellant has failed to show that it is entitled
to judgment in any sum.
During the course of construction of respondents' residence the sum of $1,462.76 had been
paid to appellant on account. Respondents contend that since appellant is entitled to a lien
only for those materials shown to have been delivered at the building site and since he has
only offered proof of such deliveries to the extent of $1,344.54 he has failed to prove that
materials were delivered over and above the amount of payment.
Appellant's manager testified that the payment in question had been made for earlier
deliveries covered by separate and specific invoices which were not the subject of this action.
The record shows that the materials which are the subject of this action were all delivered
subsequent to the date of the payment. Thus, in the absence of any contrary showing by
respondents, the record establishes that the payment had no relation to the invoices and
deliveries which are here in dispute.
Appellant, then, is entitled to its lien for such part of the building materials as it actually
delivered to the building site or as can be proved to have gone into the structure. A trial and
definite findings by the trial court thus become necessary.
____________
75 Nev. 317, 317 (1959) Green v. Green
LAURABELLE GREEN, Appellant, v.
HERMAN L. GREEN, Respondent.
No. 4158
June 5, 1959 340 P.2d 586
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,
Department No. 1.
Divorce action by husband. The trial court granted a divorce to husband, and the wife
appealed. The Supreme Court, McNamee, J., held that there was sufficient evidence to grant
the husband a divorce on the ground of extreme cruelty of wife.
Affirmed.
Ralph M. Tucker, of Reno, for Appellant.
Emile J. Gezelin, of Reno, for Respondent.
1. Divorce.
Under statutes, allowances to wife for her preliminary attorney fees and traveling expenses to and from
Nevada and subsistence allowances to and from Nevada are proper in husband's divorce action, upon a
showing that wife is in necessitous circumstances.
2. Divorce; Pleading.
In husband's divorce action, wife's allegation that she did not have sufficient funds to pay her attorney
fees and to travel from Indiana to Nevada to attend the trial and to pay for her food and lodging while in
Nevada attending the trial stated a mere conclusion of law, and in absence of wife's presentation of facts
from which trial court could determine whether funds or property in hands of wife were sufficient for the
required purposes, wife was properly denied allowances for traveling expenses, and although allowance of
preliminary attorney fees was erroneous the wife could not have been prejudiced thereby.
3. Divorce.
In husband's divorce action against wife who requested allowance for preliminary attorney fees and
traveling expenses together with subsistence allowances from Indiana to Nevada, and return, for the
purpose of attending the trial, it was for the trial court and not the wife to determine and conclude from
facts properly presented whether the funds or property in the hands of the wife were sufficient for the
requested purposes.
75 Nev. 317, 318 (1959) Green v. Green
4. Divorce.
In husband's divorce action, the evidence, including evidence that wife, more than a year after the
separation and agreement settling property rights and custody and support of children, wrote a letter to
commanding officer of husband, who was in armed services in Germany, accusing husband of wife and
child abandonment and of having illegitimate children and of having consorted with foreign prostitutes and
of having low morals, warranted awarding divorce to husband on grounds of extreme cruelty of wife.
5. Divorce.
In husband's action for divorce on ground of extreme cruelty of wife, who had written a letter to
commanding officer of husband, who was in armed services in Germany, accusing husband of wife and
child abandonment and of having illegitimate children and of having consorted with foreign prostitutes and
of possessing low morals, the truth or falsity of the accusations contained in such letter would not be
considered, where the letter was written more than a year after the parties had separated and had by written
agreement settled their property rights and the matter of the custody and support of their two children and
the accusations were maliciously and wantonly inspired and were made with the intent and solely for the
purpose of wounding the husband's feelings and harming him with his superiors.
6. Divorce.
In divorce action, the court is not bound by terms of separation agreement between husband and wife
concerning child support.
7. Divorce.
In divorce action, award of $50 per month per child to wife for support of two minor children was not
abuse of discretion, notwithstanding that such amount was less than husband and wife had agreed on in
their separation agreement, where wife was better off financially than husband.
OPINION
Respondent husband was decreed a divorce from appellant. Appeal is from such judgment.
[Headnotes 1-3]
1. In this case prior to trial the defendant wife, appellant herein, moved the court for an
order allowing her preliminary attorney fees and traveling expenses, together with subsistence
allowances from Indiana to Reno, Nevada, and return, for the purpose of attending the trial
of the action.
75 Nev. 317, 319 (1959) Green v. Green
Reno, Nevada, and return, for the purpose of attending the trial of the action. Under our
statutes [NRS 125.040] such allowances are proper upon a showing that the wife is in
necessitous circumstances. The trial court denied the motion with respect to allowances for
traveling expenses but allowed the wife preliminary attorney fees. The only showing made by
the wife in this connection is that allegation in her affidavit in support of her motion worded
as follows:
That she does not have sufficient funds to pay her attorneys' fees herein * * * nor
sufficient funds to permit her to travel to Reno, Nevada, and return again to attend a trial, nor
to pay for her food and lodging while in Reno, Nevada, attending a trial.
This clearly is a mere conclusion of law because of the use of the word sufficient, and is
legally insufficient. It is for the court and not the movant to determine and conclude from
facts properly presented whether the funds or property in the hands of the wife are sufficient
for the requested purposes. Here no facts at all were presented for such determination.
In Carroll v. Carroll, 51 Nev. 62, 268 P. 771, 772, we stated:
We think the contention that the counterclaim does not state a cause of action is well
founded. This contention is based upon the proposition that there is no allegation of fact
showing defendant's necessity for separate maintenance. The allegation upon which defendant
relies to support her claim of separate maintenance reads:
That this defendant has not sufficient income to enable her to support herself, and to live
in the manner to which she was accustomed prior to the aforesaid desertion of this defendant
may continue to live in accordance with her station in life, and the manner to which she was
accustomed, prior to the said desertion of her by plaintiff, it is necessary that plaintiff
contribute to her support and maintenance of the sum of $500 per month.'
It is said by plaintiff that this matter does not state facts, but conclusions, hence it is
insufficient. We agree with this contention.
75 Nev. 317, 320 (1959) Green v. Green
Under the circumstances the trial court's ruling denying allowances for traveling expenses
was correct.
That the trial court made an award of preliminary attorney fees based on such defective
averments, although it was erroneous, certainly was not prejudicial to appellant.
In this connection it is to be noted that respondent's counter-affidavit in opposition to said
motion alleged that his sole income was his salary of $261.30 per month as Master Sergeant
in the United States Air Force, from which $80 per month was taken for allowances paid to
his wife and two minor children; that in addition to said $80, the wife was supplied the sum
of $96.90 in allowances by the United States Government; that she was employed and earned
in excess of $80 per month; that the parties had theretofore entered into a property settlement
agreement under which the wife received all of the property of the parties (except
respondent's personal clothing and one typewriter) of a value in excess of $6,400, leaving
respondent with nothing (except as aforesaid) but with obligations in the sum of $930 which
he was still in the process of discharging. Appellant did not have an opportunity to contradict
these allegations on the hearing of the motion; but at the time of trial, some six weeks later,
she did have such opportunity and she offered no evidence whatsoever relative to the
financial condition of either party. On the other hand the respondent reiterated on the stand
substantially the same facts as contained in said counter-affidavit and was subject to
cross-examination.
[Headnote 4]
2. The next assignment of error is that there was insufficient evidence to grant the
husband a divorce upon the ground of extreme cruelty.
The court found that appellant refused respondent the right to visit and to talk to their
minor daughter at a time when respondent was scheduled to depart forthwith from the United
States to a military post for foreign duty; that appellant sold a complete set of respondent's
valuable mechanic tools without respondent's consent or authorization, and that she refused
to discuss the matter with him or disclose the whereabouts of the tools; that appellant
refused to answer correspondence and letters of respondent written from Germany in
which he inquired about the minor children, their health, and their welfare; that in August
1957 appellant wrote a four- or five-page letter to the respondent's commanding officer
in Germany accusing respondent of having abandoned his wife and children, of having
illegitimate children, of consorting and having consorted with prostitutes in every foreign
country in which he had been stationed, of being possessed of very few and low morals,
of squandering all of his money to the detriment of his family, and of having contracted a
venereal disease; that appellant's accusations were untrue and unfounded; that previous
to the time the said accusations were made, respondent held the position of line chief of
maintenance organization, a position of high responsibility; that the said letter resulted in
an investigation of respondent by his superiors which humiliated and embarrassed him,
and damaged his reputation; that a week after receipt of said letter respondent was
relieved of his said position of responsibility and transferred to a minor group of said
maintenance organization; that said acts of appellant seriously impaired respondent's
health and mental condition and psychiatric care was suggested; that said mental stress
and tension had continued up to the time of the trial, seriously affecting respondent's
health, happiness, and peace of mind; that respondent's superior officers cautioned him
to straighten out his affairs in order to be able to perform his duties satisfactorily; that
respondent's offers to become reconciled were refused by appellant; that respondent
gave appellant no reason for her actions; that a continuance of present conditions would
result in permanent impairment of respondent's health and mental condition.
75 Nev. 317, 321 (1959) Green v. Green
authorization, and that she refused to discuss the matter with him or disclose the whereabouts
of the tools; that appellant refused to answer correspondence and letters of respondent written
from Germany in which he inquired about the minor children, their health, and their welfare;
that in August 1957 appellant wrote a four- or five-page letter to the respondent's
commanding officer in Germany accusing respondent of having abandoned his wife and
children, of having illegitimate children, of consorting and having consorted with prostitutes
in every foreign country in which he had been stationed, of being possessed of very few and
low morals, of squandering all of his money to the detriment of his family, and of having
contracted a venereal disease; that appellant's accusations were untrue and unfounded; that
previous to the time the said accusations were made, respondent held the position of line
chief of maintenance organization, a position of high responsibility; that the said letter
resulted in an investigation of respondent by his superiors which humiliated and embarrassed
him, and damaged his reputation; that a week after receipt of said letter respondent was
relieved of his said position of responsibility and transferred to a minor group of said
maintenance organization; that said acts of appellant seriously impaired respondent's health
and mental condition and psychiatric care was suggested; that said mental stress and tension
had continued up to the time of the trial, seriously affecting respondent's health, happiness,
and peace of mind; that respondent's superior officers cautioned him to straighten out his
affairs in order to be able to perform his duties satisfactorily; that respondent's offers to
become reconciled were refused by appellant; that respondent gave appellant no reason for
her actions; that a continuance of present conditions would result in permanent impairment of
respondent's health and mental condition.
The evidence in the record is uncontradicted and fully supports these findings, and these
findings are legally sufficient to constitute extreme cruelty justifying a decree of divorce on
that ground.
75 Nev. 317, 322 (1959) Green v. Green
[Headnote 5]
Appellant's counsel contends that the trial court erred in not permitting him to
cross-examine respondent with respect to the truth or falsity of the accusations contained in
the said letter written by appellant to respondent's commanding officer. In so ruling the trial
court said: * * * it would seem to me if a woman writes a letter and it had in the letter such
as the witness testifies to, that whether or not that is true or not could constitute some act of
cruelty. I don't think we are on the question of truth or falsity here at this time.
We believe that the court's ruling was correct. It is obvious that appellant's accusations
were maliciously and wantonly inspired and were made with the intent and solely for the
purpose of wounding respondent's feelings and harming him with his superiors. That they had
the desired effect appears from the evidence and findings. Furthermore, they were made more
than a year after the parties had separated and had by written agreement settled their property
rights and the matter of the custody and support of their two children. Under such
circumstances the act of making such accusations to a third person was unwarranted whether
they were true or false in whole or in part, and when considered with appellant's other
conduct of which respondent complained, justified the trial court in granting respondent a
divorce for extreme cruelty predicated thereon. Cf. Sample v. Sample, 82 Neb. 37, 116 N.W.
953; Oertle v. Oertle, 146 Neb. 746, 21 N.W.2d 447; Meredith v. Meredith, 148 Neb. 845, 29
N.W.2d 643.
[Headnotes 6, 7]
3. Appellant finally contends that the court erred in allowing only $50 per month per child
for their support which amount is substantially less than the provision in this regard set forth
in the separation agreement of the parties. It is well settled that a court is not bound by the
terms of any separation agreement between husband and wife relating to custody and support
of minor children. Furthermore, in this case it appears that the wife was better off financially
than her husband. No abuse of discretion in the award of child support appears from the
record.
75 Nev. 317, 323 (1959) Green v. Green
abuse of discretion in the award of child support appears from the record.
Affirmed.
____________
75 Nev. 323, 323 (1959) Engel v. Wilcox
VINNIE B. ENGEL, Appellant, v.
HARRY C. WILCOX, Respondent.
No. 4160
June 11, 1959 340 P.2d 93
Department No. 1.
Action by real estate broker for commissions. The trial court entered judgment for broker
and vendor appealed. The Supreme Court, Badt, J., held that default of purchaser did not
destroy obligation of vendor to pay broker's commissions, notwithstanding provision of
escrow agreement, to which broker was not a party, that additional payment to be made by
purchaser within one year should go to broker as his commission.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Stanley H. Brown, of Reno, for Respondent.
1. Brokers.
Default of purchaser did not destroy obligation of vendor to pay broker's commissions, notwithstanding
provision of escrow agreement, to which broker was not a party, that additional payment to be made by
purchaser within one year should go to broker as his commission.
2. Brokers.
Generally, a real estate broker has earned his commission when he has brought to the vendor a purchaser
who is ready, willing and able to buy upon terms upon which broker is authorized to sell, or when a written
contract upon any terms acceptable to vendor has been entered into with a purchaser
originally brought to vendor by broker, and it is not necessary for the sale to be
completed.
acceptable to vendor has been entered into with a purchaser originally brought to vendor by broker, and it
is not necessary for the sale to be completed.
3. Brokers.
Where broker was not party to escrow instructions for payment to broker of commissions nor agreement
to defer for one year down payment in amount of broker's commissions, broker's consent thereto or failure
to object was not material, in broker's action for commissions, notwithstanding broker's deferral for one
year of payment to him by vendor of his commissions.
OPINION
Respondent, Harry C. Wilcox, a licensed real estate broker, obtained a judgment against
appellant for a $1,000 broker's commission on sale of a parcel of land in Washoe County
known as the Mt. Rose property and a $500 commission on sale of property known as the
Westfield Village property. Appellant asserts insufficiency of the evidence to support the
judgment.
The trial court, trying the case without a jury, found that in February 1955 appellant
employed respondent to sell the two parcels; that respondent negotiated a sale of the Mt. Rose
property to Joseph S. and Ruth S. Williamson upon terms and conditions agreed upon by
appellant, namely, for a price of $20,000, payable $175 a month, which included 6 percent
interest, with an additional $1,000 payment within one year; likewise a sale of the Westfield
Village property to Floyd A. and Ida P. Anderson, upon terms and conditions agreed upon
and suggested by appellant, for $15,000, payable $150 a month, which included interest at 6
percent, and with an additional $500 payable within one year; that appellant promised to pay
respondent a $1,000 commission within one year on the Mt. Rose sale and a commission of
$500 within one year on the Westfield Village sale. These findings are supported by the
undisputed testimony of respondent.
The controversy presented to the trial court arose, after default of both purchasers, out of
recitals in escrow instructions of the parties to the two sales filed with Washoe Title
Insurance Company of Reno.
instructions of the parties to the two sales filed with Washoe Title Insurance Company of
Reno. Such instructions, with reference to the Mt. Rose property, were signed by appellant
authorizing delivery of deed upon issuance of title insurance and execution and delivery of a
deed of trust securing the agreed payments. Among other provisions were included the
following: Full amount of additional [$1,000] payment on principal is to go to Harry
Wilcox, Realtor, as Real Estate Commission. * * * I agree to pay [the] above $1,000
commission to broker Harry Wilcox. The Williamsons signed their agreement to the terms
and conditions, which included items as to taxes, insurance, escrow fees, etc. Respondent was
not a party to the escrow contract. Identical provisions were contained in the Westfield
Village contract with the Andersons.
Appellant's contention in the court below and her contention before this court is that
respondent's knowledge of the terms of the escrow [make it] clear that the respondent
entered into an oral agreement with the Appellant, that the commissions would be paid only
out of the money to be paid by the purchaser, and, the purchasers under both escrows having
failed to make the cash payments as agreed, the commissions never became payable by
appellant. The learned trial judge properly rejected this conclusion. When it appeared that the
respective purchasers did not have the money for the down payments that would have taken
care of the broker's commissions, respondent said to appellant, Well, if it's all right with you
that way
* * *, if you will defer your payment of down payment of $1,000 for one year, I will do
likewise on my commission. * * * He further testified: I agreed to wait for payment of my
commission. * * * I never had any conversation with Mrs. Engel wherein I agreed to look to
Mr. Williamson for my commission. Several months later appellant said to respondent, I
didn't intend to have you wait a year for your commission, Harry, but * * * now I would have
to put out some more money for the government, so I guess you'll have to wait for it.
Respondent said, That is perfectly all right with me.
There is no indication that the situation was any different with reference to the sale to the
Andersons.
[Headnote 1]
Appellant submits authorities in support of her contention that where it appears that
commissions to the broker are payable out of the purchase money, the broker is not entitled to
commissions where the purchaser defaults. The cases cited are not in point. They are cases in
which the owner and the broker entered into an agreement to such effect. Here there was no
such agreement. The broker was not a party to the escrow instructions. It is true that under
those instructions the Williamson $1,000 payment to be made to appellant within one year
would go to respondent as his commission, and the same applied to the $500 commission to
be made by the Andersons. Such was the agreement between buyer and seller. In view of that
situation respondent deferred for one year the commissions payable to him by the seller. The
defaults of the respective buyers did not destroy the obligation of the seller to pay the broker's
commissions.
[Headnote 2]
Generally speaking, a real estate broker has earned his commission when he has brought
to the vendor a purchaser who is ready, willing and able to buy the property upon the terms
on which the agent is authorized to sell, or when a written contract upon any terms acceptable
to the seller has been entered into with a purchaser originally brought to the vendor by the
agent. Alison v. Chapman, 36 Cal.App. 759, 173 P. 389. It is not necessary for the sale to be
completed, under the foregoing rule, for the broker to be entitled to his commission. Carlin v.
Lifur, 2 Cal.App. 590, 84 P. 292. Cochran v. Ellsworth, 126 Cal.App.2d 429, 272 P.2d 904,
909.
[Headnote 3]
Error is assigned in the trial court's rulings sustaining objections to questions asked
respondent on cross-examination as to whether he had consented to the terms of the escrows
and as to whether or not he raised any objection to the terms of the escrow instructions. As
noted, he was not a party to such instructions.
noted, he was not a party to such instructions. He had no occasion to consent or object. Under
the agreement between the seller and buyer in each case, the buyer was permitted to defer for
one year the down payment which would have been in the amount of the broker's
commission, and the broker in turn deferred for one year payment to him by the seller of his
commission. Under these circumstances the broker's consent to the escrow instructions and
the broker's failure to object to the escrow instructions were immaterial.
____________
75 Nev. 327, 327 (1959) In Re Robinson
In the Matter of the Application of
CHARLES ALLEN ROBINSON for a Writ of Habeas Corpus.
No. 4209
June 12, 1959 340 P.2d 591
Original Proceeding. Application of Charles Allen Robinson, inmate of the state prison,
for a writ of habeas corpus. The Supreme Court held that where petition on its face revealed
that deductions in time for good conduct had been forfeited because of violation of parole by
inmate, and that therefore minimum term of imprisonment had not yet expired, and petition
was silent as to any action by board reducing minimum term of imprisonment, petition would
be ordered dismissed.
Application denied.
Petitioner in pro. per.
Habeas Corpus.
Where habeas corpus petition of inmate of state prison revealed on its face that deductions in time for
good conduct had been forfeited by inmate because of violation of parole, and that therefore minimum term
of imprisonment had not yet expired, and petition was silent as to any action by board reducing minimum
term of imprisonment, petition would be ordered dismissed by Supreme Court. NRS 213.160.
75 Nev. 327, 328 (1959) In Re Robinson
OPINION
Per Curiam:
Charles Allen Robinson has filed herein a petition applying for a writ of habeas corpus.
The petition contains allegations that on or about October 5, 1955, after a plea of guilty to
the charge of robbery he was sentenced to not less than five years and was sent directly to the
Nevada State Prison where he is now being detained; that he had been released on parole
from said prison on or about December 3, 1957; and that said parole was violated and
petitioner was returned to said prison.
The petition specifies that his imprisonment is illegal in that he has completed three years
and seven months of his term and that therefore because of the time deductions provided by
law, the period of his term expired on or about April 5, 1959.
NRS 213.160 provides that if a parole shall be lawfully revoked and the prisoner shall
thereafter be returned to the Nevada State Prison, he shall forfeit all previously earned credits
for good behavior and shall serve such part of the unexpired term of his original sentence as
may be determined by the board.
The petition on its face reveals that the deductions in time for good conduct have been
forfeited, and that therefore the minimum term of imprisonment has not yet expired and the
petition is silent as to any action by the board reducing such minimum term of imprisonment.
The petition therefore must be and it is hereby ordered dismissed.
____________
75 Nev. 329, 329 (1959) In Re Johnson
In the Matter of the Application of BEAUFORD JOHNSON
for a Writ of Habeas Corpus.
No. 4211
June 16, 1959 340 P.2d 585
Original proceeding. Application of Beauford Johnson for a writ of habeas corpus. The
Supreme Court, Per Curiam, held that court will presume that restraint is proper unless
allegations of petition are sufficient to negative such presumption.
Application denied.
1. Prisons.
Each convicted person is entitled to credits on term of imprisonment unless board of prison
commissioners finds that for misconduct or other causes reported by warden he should not receive them.
2. Habeas Corpus.
In habeas corpus proceeding court will presume that restraint is proper unless allegations of petition are
sufficient to negative such presumption.
OPINION
Per Curiam:
This is an original petition for a writ of habeas corpus in which the petitioner has applied
in propria persona. The petitioner alleges that he has been confined in the state prison since
September 24, 1958 under a sentence of ten months; that prior thereto and on or about May
14, 1958 petitioner had pleaded guilty to the charge of grand larceny and was sentenced to a
term of two years; that ten months was deducted from said term for the period petitioner had
been confined while awaiting trial and that for the balance of said two-year term petitioner
was placed on 14 months' probation; that during said 14 months' probation petitioner was
accused of reckless driving and was re-sentenced to ten months in the state prison; that the
said sentence expired on or about the 4th day of June, 1959; and that therefore the present
restraint of petitioner is illegal.
75 Nev. 329, 330 (1959) In Re Johnson
The foregoing has substantially the wording of the petition and it is apparent that aside
from the legal conclusion that the sentence has expired and that the restraint of petitioner is
illegal, the petition shows neither the expiration of the sentence nor an illegal restraint of
petitioner. The petition is silent as to the commencing date of confinement in the state prison;
it states that petitioner was re-sentenced to ten months in the state penitentiary which is
inconsistent with his subsequent allegation that the minimum sentence is one year, and it thus
appears that the petitioner has confused the period of sentence with the time to be served after
deductions in time for good conduct.
[Headnote 1]
Each convicted person is entitled to credits on term of imprisonment unless the board of
prison commissioners shall find that for misconduct or other cause reported by the warden he
should not receive them.
[Headnote 2]
In applications of this nature the court will presume that the restraint is proper unless the
allegations of the petition are sufficient to negative such presumption. Ex Parte Murray, 39
Nev. 351, 157 P. 647; In Re Ohl, 59 Nev. 309, 318, 92 P.2d 976, 95 P.2d 994.
The petition is dismissed without prejudice.
____________
75 Nev. 330, 330 (1959) In Re Lorring
In Re Petition of EUGENE J. LORRING
No. 4206
June 17, 1959 340 P.2d 589
Original petition for leave to take state bar examination. The Supreme Court held that in
view of careful and continued consideration given by the court and its Board of Bar
Examiners, acting as arm of court, in line with understandable and admirable national trend,
to the matter of educational requirements determining eligibility of persons to take state
bar examinations, and of the very precise fixing of dates upon which several amendments
to court rule were made to take effect, so as to prevent hardship on those applicants who
had geared their educational programs to then existing provisions, petition for leave to
take state bar examination did not warrant waiver of court rule requiring that applicants
have completed two years of college work in an accredited college or university and have
received a degree of bachelor of laws, or its equivalent, from a law school approved by
American Bar Association's committee on legal education and admissions to the bar.
75 Nev. 330, 331 (1959) In Re Lorring
matter of educational requirements determining eligibility of persons to take state bar
examinations, and of the very precise fixing of dates upon which several amendments to court
rule were made to take effect, so as to prevent hardship on those applicants who had geared
their educational programs to then existing provisions, petition for leave to take state bar
examination did not warrant waiver of court rule requiring that applicants have completed
two years of college work in an accredited college or university and have received a degree of
bachelor of laws, or its equivalent, from a law school approved by American Bar
Association's committee on legal education and admissions to the bar.
Petition denied.
Attorney and Client.
In view of careful and continued consideration given by court and its Board of Bar Examiners, acting as
arm of court, in line with understandable and admirable national trend, to the matter of educational
requirements determining eligibility of persons to take state bar examinations, and of the very precise
fixing of dates upon which several amendments to court rule were made to take effect, so as to prevent
hardship on those applicants who had geared their educational programs to then existing provisions,
petition for leave to take state bar examination did not warrant waiver of court rule requiring that applicants
have completed two years of college work in an accredited college or university and have received a degree
of bachelor of laws, or its equivalent, from a law school approved by American Bar Association's
committee on legal education and admissions to the bar. Supreme Court Rules, Rule I, subd. 4.
OPINION
Per Curiam:
Petitioner has filed in this court his original Petition for Leave to Take State Bar
Examination. The prayer of such petition is that this court waive the requirements of the
rule in this instance and permit him to register and take the bar examination * * *. Petitioner
asserts that he is precluded "due to his lack of two years of college work in an approved
college or university and the lack of accreditation by the American Bar Association of New
Jersey Law School in the year 1925."
75 Nev. 330, 332 (1959) In Re Lorring
asserts that he is precluded due to his lack of two years of college work in an approved
college or university and the lack of accreditation by the American Bar Association of New
Jersey Law School in the year 1925. The provision in question is section 4 of Rule I of the
Rules of the Supreme Court requiring, among other things:
* * * [E]ach applicant for admission to take a state bar examination after January 1, 1950
shall present sufficient evidence to establish to the satisfaction of the supreme court that the
applicant has received a high school diploma and has completed 2 years of college work in an
accredited college or university and has received a degree of bachelor of laws, or its
equivalent, from a law school approved by the American Bar Association's committee on
legal education and admissions to the bar.
In 1942 eligibility to take the examination under this section depended upon the applicant's
possession of a high school diploma, or its equivalent, his completion of two years' college
work, or its equivalent, and three years' study in a law school, or an equivalent amount of
time in private or office study of law.
In 1946 this provision was amended. For applicants for permission to take a state bar
examination to be held after January 1, 1950, the permission to show the equivalent was
eliminated, and from that date the present rule in substance has existed.
The State of Nevada in thus acting joined a nationwide movement evidenced by
recommendations and resolutions of Sections of the American Bar Association and by the
activities of the National Conference of Bar Examiners to raise the standards of the bar, and
one of the methods adopted by the State Bar of Nevada and the supreme court of this state to
achieve this end was the requirement of proof of educational background before an applicant
would be permitted to take the state bar examinations. To this was finally added the
requirement for a law degree from a law school duly accredited by the Legal Education
Section of the American Bar Association, whose first accredited list of law schools was
certified in 1923.
75 Nev. 330, 333 (1959) In Re Lorring
As to the latter requirement, petitioner presents an excerpt from Rutgers School of Law
bulletin 1957-1958. This shows the establishment of New Jersey Law School in 1908, the
establishment of the Mercer Beasley School of Law at Newark, New Jersey, in 1926, the
merger of the two in 1936 as University of Newark School of Law and its incorporation into
Rutgers, the State University, in 1946. In 1941 the University of Newark Law School was
placed on the approved list of schools of the American Bar Association.
Petitioner does not assert that this subsequent history of the New Jersey Law School
should relate back to the time of his graduation from that school in 1925. And it is evident
that its accreditation in 1941 can hardly be said to prove its entitlement to accreditation in
1925.
Mr. Lorring's petition shows that he enrolled in the New Jersey Law School in 1925 and
graduated therefrom with a bachelor of laws degree in 1927, served a clerkship for one year,
successfully passed the New Jersey state bar examination in 1929, practiced for three years
and was admitted to practice as a counselor at law in New Jersey in 1937, and practiced
continuously in that state from 1929 until 1951 when he changed his domicile to Nevada; that
he was admitted to practice before the United States District Court for the District of New
Jersey in 1929.
In view of the careful and continuous consideration given by this court and by its Board of
Bar Examiners, acting as an arm of this court, in line with an understandable and admirable
national trend, to the matter of educational requirements determining the eligibility of persons
to take the state bar examinations, and of the very precise fixing of the dates upon which the
several amendments were made to take effect, so as to prevent a hardship on those applicants
who had geared their educational programs to then existing provisions, we are compelled to
conclude that the present petition does not warrant an order of this court waiving the rules in
question. Petition denied.
____________ No.
75 Nev. 330, 334 (1959) In Re Lorring
No. 4206
February 10, 1960 349 P.2d 156
On petition for rehearing, the Supreme Court held that as rule requires petitions to be filed
within 15 days after filing and publication of opinion and order, petition which was filed
many months late would not be considered.
Rehearing denied.
Petition for rehearing filed many months after expiration of 15-day period after filing
and publication of opinion and order stipulated in Supreme Court Rules, could not be
considered. Supreme Court Rules, rule 34, subd. 2.
Supreme Court would not consider points raised for first time in petition for rehearing.
OPINION ON REHEARING
Per Curiam:
On June 1, 1959 Eugene J. Lorring petitioned this court to waive the educational
requirements of our rules in order to permit him to take the state bar examination. On June
17, 1959 this court filed its opinion denying that petition. 75 Nev. 330, 340 P.2d 589.
Petitioner, on February 8, 1960, over eight months after the denial of his first petition, filed
herein petition for rehearing, denominated by him Request for Rehearing. This request or
petition is based upon the contention that our educational requirements were made effective
retroactively and are in contravention of the federal and state constitutions.
[Headnote 1]
(1) Our rules require a petition for rehearing to be filed within 15 days after the filing and
publication of the opinion and order.
75 Nev. 330, 335 (1959) In Re Lorring
the opinion and order. Rule 34(2) S.C.R. The petition for rehearing is many months late and
cannot be considered.
[Headnote 2]
(2) It has long been a rule of this court that we shall not consider points raised for the first
time in a petition for rehearing.
Rehearing denied.
____________
75 Nev. 335, 335 (1959) Washoe County v. Baker
WASHOE COUNTY, a political Subdivision, Appellant, v. HERMAN BAKER and
ROBERT DRAKE, Doing Business as Yellow Cab Company, Respondents.
No. 4176
June 18, 1959 340 P.2d 1003
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Action by individuals doing business as cab company against county for declaratory
judgment as to which fees of civil jurors were payable by county and which fees were payable
by litigants. The trial court entered judgment that county was chargeable for all jury fees
accruing prior to impanelment of jury, and county appealed. The Supreme Court, Merrill, C.
J., held that under statutory provisions that per diem of each juror engaged in trial of civil
action should be paid by party who demanded jury and that fees paid jurors for services in
civil action should be deducted from total amount due jurors for attendance, and balance
should be charged against county, it was responsibility of party demanding jury to pay jurors'
per diem for services rendered during trial itself from time they were selected and sworn, and
it was responsibility of county to pay fees resulting from attendance of jurors prior to trial.
Judgment affirmed.
William J. Raggio, District Attorney, Washoe County; Emile J. Gezelin, Chief Deputy
District Attorney, Washoe County, Reno, for Appellant.
Vargas, Dillon and Bartlett, of Reno, for Respondents.
1. Costs; Jury.
Under statutory provisions that per diem of each juror engaged in trial of civil action should be paid by
party who demanded jury and that fees paid jurors for services in civil action should be deducted from total
amount due jurors for attendance, and balance should be charged against county, it was responsibility of
party demanding jury to pay jurors' per diem for services rendered during trial itself from time they were
selected and sworn, and it was responsibility of county to pay fees resulting from attendance of jurors prior
to trial. NRS 6.150, subds. 1, 4, 5.
2. Costs; Jury.
Statutory requirement that party demanding jury has responsibility to pay per diem of jurors for services
rendered during trial from time they were selected and sworn, and that county has responsibility of payment
of jury fees resulting from attendance of jurors prior to trial, is not unreasonable. NRS 6.150, subds. 1, 4,
5.
3. Statutes.
Where statute contained adequate statement of responsibility of party demanding jury to pay per diem of
jurors for services rendered during trial itself from time they are selected and sworn and of responsibility of
county to pay jury fees resulting from attendance prior to trial and arrangement was not unreasonable,
resort to legislative history would not be permitted to render statute ambiguous. NRS 6.150, subds. 1, 4,
5.
OPINION
By declaratory judgment the trial court has ruled that in a civil action the county is
chargeable for all jury fees accruing prior to empanelment of the jury. The county appeals
from that judgment. It contends that all civil jurors' fees, including the fees of the entire panel
accruing prior to empanelment of the jury, should be paid by the party demanding the jury.
The issue presented involves the construction of NRS 6.150, the material portions of
which are as follows:
Subsection 1, Each person summoned to attend as a grand or trial juror, * * * shall
receive $6 per day for each day he may be in attendance,
* * *."
a grand or trial juror, * * * shall receive $6 per day for each day he may be in attendance,
* * *.
Subsection 4, In civil cases, the per diem of each juror engaged in the trial of the cause
shall be paid each day in advance to the clerk of the court, * * * by the party who shall have
demanded the jury. * * *
Subsection 5, The fees paid jurors by the county clerks for services in a civil action or
proceeding (which he has received from the party demanding the jury) shall be deducted from
the total amount due them for attendance as such jurors, and any balance shall be a charge
against the county.
[Headnote 1]
It is clear from Subsection 5 that the responsibility for payment of jurors' fees is to be
shared between the county and the litigants; that a balance may become chargeable to the
county. This disposes of the contention of the county that it is free from all responsibility. The
question remaining is as to the manner in which this responsibility is to be shared.
The total responsibility as fixed by Subsection 1 and mentioned again in Subsection 5 is to
pay the fees for attendance of all persons summoned to attend as jurors. The limited
responsibility of the party demanding a jury in a civil action is to pay the fees of those
engaged in the trial of the cause (Subsection 4) for services in a civil action. (Subsection
5)
In our view this language limits the responsibility of the party demanding a jury to pay the
per diem of jurors for services rendered during the trial itself from the time they are selected
and sworn. Payment of the fees resulting from attendance prior to trial is the responsibility of
the county.
[Headnote 2]
The arrangement thus provided would not seem unreasonable and might even be regarded
as traditional. The county is made to assume the responsibility for providing the mechanics by
which a jury trial may be had. The litigants assume the cost of the trial itself.
The county supports its contention by reference to legislative history.
legislative history. It points out that by recent amendments certain language expressly
imposing responsibility on the county was stricken from the statute, thus demonstrating a
legislative intent to relieve the county from all such responsibility.
It is no doubt true that consideration of what the legislature has taken out, does (in the light
of what it has chosen to leave in) create confusion as to its precise intent.
[Headnote 3]
In our view, however, that which remains as statute constitutes an adequate statement of
the manner in which the responsibility for payment of fees shall be shared. The resulting
arrangement is not unreasonable. We shall not, then, permit a resort to legislative history for
the purpose of rendering ambiguous that which otherwise appears to be both clear and
reasonable.
Affirmed.
____________
75 Nev. 338, 338 (1959) Reed v. Dist. Court
GWENDOLYN REED, as Executrix of the Last Will of GEORGE S. REED, Deceased,
Petitioner, v. THE SIXTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for
the County of Humboldt, and Honorable PETER BREEN, District Judge, Respondents.
No. 4201
June 23, 1959 341 P.2d 100
Original proceedings seeking a writ of prohibition commanding the respondent court to
refrain from proceeding further with an action now pending against the petitioner in her
representative capacity. The Supreme Court, Merrill, C. J., held that a claim by purchasers of
rescission of a contract for the sale of land and restitution entered into by decedent and his
wife was not such a claim as falls within the bar of the statute requiring claims against the
decedent to be presented within three months from first publication of notice to the
creditors.
such a claim as falls within the bar of the statute requiring claims against the decedent to be
presented within three months from first publication of notice to the creditors.
Writ denied.
Goldwater, Taber & Hill, of Reno, for Petitioner.
Ernest S. Brown and William L. Hammersmith, of Reno, for Respondents.
1. Executors and Administrators.
Universal rule is that not all rights asserted against a decedent are included within the bar of nonclaim.
An action by purchasers to rescind a contract entered into with decedent and his wife on the ground that
vendors allegedly fraudulently misrepresented extent of land covered by agreement and seeking
cancellation of the contract and restitution of the purchase price and other expenditures was not a claim
against the property constituting the estate of the decedent but asserted that an asset claimed by the estate
was not in truth its property and such a claim need not be filed. NRS 147.040.
Where purchasers alleged that they entered into a contract to purchase land from the decedent and his
wife and that the vendors allegedly fraudulently misrepresented extent of land covered by the agreement,
the District Court had jurisdiction to cancel the contract which the estate of decedent improperly claimed as
an asset and to establish as an asset in lieu of the contract an interest in the realty involved. NRS
147.040.
4. Vendor and Purchaser.
In action by purchasers to rescind a contract for the purchase of land, restitution of the purchase price and
damages, equity gives the purchaser a lien upon the real estate which is the subject of the rescinded sale to
the extent that restitution is proper.
5. Pleading.
In action by purchasers to rescind a contract for purchase of land, restitution of purchase price and
damages on ground that deceased vendor and his wife fraudulently misrepresented extent of land covered
by the agreement where purchasers did not expressly seek foreclosure of a lien nor waive further recourse
against assets of the estate of the decedent, a dismissal of the action without leave to amend would not have
been proper. NRS 147.150.
OPINION
Petitioner as executrix of the last will of George S. Reed, deceased, seeks a writ of
prohibition commanding respondent court and judge to refrain from proceeding further with
an action now pending against her in her representative capacity. That action was brought by
Joseph C. and Helen R. Cardoza to secure rescission of a contract for purchase of land
located in Humboldt County, restitution of purchase price, and general damages.
Petitioner asserts that no claim against the estate she represents was filed by the Cardozas
within the time prescribed by NRS 147.040; that they are therefore without right to assert
their claim against the estate and that respondent court is without jurisdiction to proceed with
an action against the estate founded upon such claim. A motion by petitioner to dismiss the
action against her in her representative capacity was denied by the trial court. Her petition
was then filed with this court and an alternative writ of prohibition was issued.
NRS 147.040 requires that all persons having claims against the deceased shall file their
claims with the clerk of the court within three months from the first publication of notice to
creditors. Otherwise, such claims shall be forever barred.
The sole question presented by this proceeding is whether a claim for rescission and
restitution is such a claim as falls within the bar of the statute.
The complaint filed by the Cardozas alleges that they entered into a contract to purchase
the land in question from decedent and his wife, Gwendolyn Reed; that the Reeds
fraudulently misrepresented the extent of the land covered by the agreement. The action was
brought against Gwendolyn Reed individually and as executrix and also against certain
individual heirs of George S. Reed. It prays for cancellation of the contract, restitution of
$18,255 paid on purchase price and $6,850 expended in improvements, a total of $25,105
plus $10,000 for general damages.
$10,000 for general damages. The complaint states, The plaintiffs do hereby cancel and
rescind the contract of sale * * *, and The plaintiffs do hereby tender all of said property
described in the contract of sale to the defendants * * *.
[Headnote 1]
It is universally recognized that not all rights asserted against a decedent are included
within the bar of nonclaim. An example is the recovery of property held by the decedent in
trust. Since such property does not form a portion of the assets of the estate, its recovery in no
wise diminishes the estate and a claim to it is not a claim against the property constituting the
estate. Thompson v. Crockett, 19 Nev. 242, 9 P. 121; In Re Dabney's Estate, 37 Cal.2d 672,
234 P.2d 962.
Petitioner contends that regardless of whether the asserted rights of the Cardozas are
founded in equity or in law the claim before us, in effect, is a general money demand against
the estate, and as such falls within the bar of the statute.
[Headnote 2]
In response to this contention we note first that it relates to damages and to the restitution
aspect of rescission. When one examines the other aspect of rescissionthe claim for
cancellation of the contract of saleit is clear that this is not a claim against the property
constituting the estate but is one which asserts that an asset claimed by the estate is not in
truth its property. Such a claim need not be filed.
[Headnote 3]
Whether or not respondent court has authority to direct restitution by the estate, then, or to
assess damages against it, it clearly has jurisdiction to cancel a contract which the estate
improperly claims as an asset and to establish as an asset (in lieu of the contract) an interest in
the realty involved.
[Headnote 4]
We note further, however, as to the restitution aspect of the action, that in such a case as
this, the rules of equity give the purchaser a lien upon the real estate which is the subject
of the rescinded sale to the extent that restitution is proper.
equity give the purchaser a lien upon the real estate which is the subject of the rescinded sale
to the extent that restitution is proper. McCall v. Superior Ct., 1 Cal.2d 527, 36 P.2d 642, 95
A.L.R. 1019; Metz v. Forest Hills Homes, 197 Misc. 968, 95 N.Y.S.2d 29; See Restatement
of the Law, Restitution, p. 18, sec. 4(d), p. 650, sec. 161.
NRS 147.150 provides that the filing of a claim is not a necessary prerequisite to the
bringing of an action to foreclose a lien against property of the estate where all recourse
against any other property of the estate is expressly waived in the complaint.
[Headnote 5]
The Cardozas in their action have not expressly sought foreclosure of a lien, nor have they
waived further recourse against the estate's assets. However, in the light of this section, a
dismissal of the action without leave to amend would not have been proper.
We conclude that respondent court did not err in denying petitioner's motion to dismiss;
that said court has jurisdiction to proceed with the pending action; that prohibition therefore
is not proper.
Writ denied and proceedings dismissed.
____________
75 Nev. 342, 342 (1959) Armstrong v. Onufrock
GEORGE JAMES ARMSTRONG, Appellant, v. IRENE ELVIRA ONUFROCK and
DUANE WILLIAM ONUFROCK, By and Through His Guardian Ad Litem,
IRENE ELVIRA ONUFROCK, Respondents.
No. 4163
June 25, 1959 341 P.2d 105
Department No. 2.
Action by mother and her 14 year old son against motorist whose automobile collided with
son's motor scooter. The trial court entered judgment on verdict for the plaintiffs, and the
defendant appealed. The Supreme Court, McNamee, J., held that the evidence sustained the
finding that the motorist had the last clear chance to avoid the accident and also held that the
cost of taking deposition of the motorist after the commencement of the action for discovery
purposes was merely one of the expenses connected with the preparation for trial and should
not be taxed as costs against the motorist who did not succeed on the appeal.
Vargas, Dillon & Bartlett, and Alex A. Garroway, of Reno, for Appellant.
Peter Echeverria and John Sanchez, of Reno, for Respondents.
1. Automobiles.
In action arising out of intersectional collision of 14 year old boy's motor scooter with approaching
left-turning automobile of defendant, evidence sustained jury's findings that both vehicles approached
intersection at excessive rate of speed, that defendant, while his forward vision was obscured by the frost
on his windshield, made a left turn in violation of municipal ordinance which required him to yield right of
way to approaching vehicle, that defendant in the exercise of ordinary care could have discovered the
imminent peril of 14 year old boy in time to avoid accident by stopping or by diminishing his speed and
should have realized that the boy could not extricate himself from such peril, and that failing in this duty
the defendant was liable under the doctrine of last clear chance for the natural consequences of his acts.
2. Damages.
Where mother quits her job to care for her minor child who has been injured in automobile accident and
the mother and the child sue the motorist, the nursing charges are a proper element of special damages;
however, the basis of liability is not the loss of wages resulting from the change of occupation, but rather
the reasonable value of the nursing services.
In action by son and mother who quit her job to care for her 14 year old son who was injured when his
motor scooter collided with defendant's automobile, where the nursing services the mother performed on
behalf of the son were of a value of at least the sum of $1,000 and the verdict in favor of the mother
was in the amount of $1,000, errors in the trial court's instruction on the measure of
damages were not prejudicial.
of the mother was in the amount of $1,000, errors in the trial court's instruction on the measure of damages
were not prejudicial.
4. Parent and Child.
Where the injured person is a minor and the costs of his care have been met by a parent, a direct right of
action by such parent against the wrongdoer exists. NRS 12.080.
5. Parent and Child.
Where 14 year old boy was injured when his motor scooter collided with defendant's automobile and the
boy's mother provided nursing care, the mother was entitled under the statutes to join in the boy's action as
a party in order to recover the value of her services as a nurse. NRS 12.080.
6. Costs.
In action by mother and her 14 year old boy against motorist whose automobile collided with the boy's
motor scooter, where no question was raised on the motorist's appeal concerning the amount of the verdict
for the boy, and the mother and the boy successfully demanded that testimony of doctors as to the nature
and extent of the boy's injuries be included in the transcript and costs for the inclusion of such testimony
were paid by the motorist, the motorist was entitled to his costs for such item in the Supreme Court. NRCP
75(e).
7. Costs.
In action by mother and her 14 year old son against motorist whose automobile collided with son's motor
scooter, where eyewitness to the accident was preparing, prior to the filing of the action, to leave the state
of Nevada and establish residence in Montana, the expense of taking the eyewitness' deposition was a
proper cost item to be borne by the motorist who did not succeed on his appeal from adverse judgment,
notwithstanding that the eyewitness later returned for the purpose of attending the trial as a witness and was
sworn and testified at the trial.
8. Costs.
The expenses resulting from the taking of depositions for the purpose of discovery are merely one of the
many expenses connected with the preparation for trial and should not be taxed as costs against the losing
party, even when the person whose deposition is taken is a party to the action.
9. Costs.
Inasmuch as the party who causes a discovery deposition to be taken must stand the expense of the
original and such copies as he may request, so also should an adverse party pay for such copies as he may
order as an expense connected with the preparation for trial, without the right of reimbursement from the
losing party.
OPINION
Respondents, plaintiffs below, recovered damages in this action resulting from an accident
in which respondent Duane William Onufrock, a minor of the age of 14 years, sustained
personal injuries when the motor scooter he was operating collided with an automobile
operated by appellant. Respondent Irene Elvira Onufrock, the mother of Duane, has joined as
plaintiff to recover her loss of wages resulting from said accident. The trial court entered final
judgment on the verdict and denied appellant's motion for a new trial. Appeal is from the
judgment and from the order denying the motion for new trial.
The accident happened at the intersection of California Avenue and Booth Street in the
City of Reno on October 12, 1956 at 7 o'clock a. m. Armstrong was proceeding eastwardly on
California Avenue in his Ford automobile. It was a cold morning and prior to starting his
automobile he had cleaned the frost off a portion of his windshield on the driver's side with a
small stick. The two streets form an imperfect Y, the base being the west portion of
California Avenue. Both streets are popular thoroughfares and many vehicles pass in both
directions, and both Armstrong and Duane knew that half of those vehicles going east on
California Avenue turn left onto Booth Street.
There was evidence that the portion of the windshield Armstrong had cleaned had fogged
over, obscuring his forward vision. As he approached the intersection, he put out his hand for
a left turn. At this time Duane Onufrock was proceeding westerly on California Avenue
which has a downhill grade as it enters the intersection from the east. The collision occurred
on Booth Street a few feet beyond the north line of California Avenue. Armstrong neither saw
nor heard the approaching motor scooter prior to the accident. Duane Onufrock sustained
severe injuries, was knocked unconscious, and has no recollection of the events before or
after the impact.
impact. An eyewitness testified that as the two vehicles approached each other Duane
dropped his foot either to or close to the pavement and in a matter of a split second thereafter
the collision occurred.
[Headnote 1]
The trial court concluded that the doctrine of last clear chance was involved and instructed
the jury with respect to its essential elements and their application to the evidence presented.
Appellant made no objection to such instructions. After considering the evidence and the
instructions of the court the jury concluded that although both Duane and Armstrong were
negligent, Armstrong had the last clear chance to avoid the accident. We feel that the jury was
warranted in reaching such a conclusion.
There was evidence that both vehicles approached the intersection at an excessive rate of
speed; that Armstrong while his forward vision was obscured by the frost on his windshield
made a left turn in violation of a municipal ordinance which required him to yield the right of
way to the approaching vehicle; that Armstrong in the exercise of ordinary care, could have
discovered the imminent peril of Duane in time to avoid the accident by stopping or by
diminishing his speed and should have realized that Duane could not extricate himself from
such peril. Failing in this duty, he is liable under the doctrine of last clear chance, for the
natural consequences of his acts. Styris v. Folk, 62 Nev. 208, 209, 139 P.2d 614, 146 P.2d
782; Deiss v. So. Pac. Co., 56 Nev. 151, 47 P.2d 928, 53 P.2d 332.
As a separate cause of action, Duane's mother sued Armstrong to recover lost wages,
alleging that as a result of the said negligence of Armstrong she was compelled to resign her
employment to care for her son to her damage in the sum of $1,500.
Evidence was received showing that the said mother quit her $56 a week job on October
12, 1956, the day of the accident, to care for her son, and that she continued such nursing care
until May 1957. She was on 24-hour duty during this period, except for occasional relief from
her husband. Had she continued her work and employed a nurse to care for her son the cost
would have been $14 a day for an eight-hour shift.
and employed a nurse to care for her son the cost would have been $14 a day for an
eight-hour shift.
The jury in its verdict included an item of $1,000 for the mother.
[Headnote 2]
While nursing charges are a proper element of special damages in an action of this nature,
the basis of liability is not the loss of wages resulting from the change of occupation, but
rather the reasonable value of the nursing services. Seedborg v. Lakewood Gardens Civic
Ass'n., 105 Cal.App.2d 449, 233 P.2d 943; 67 C.J.S., sec. 55, pp. 760-761.
[Headnote 3]
Although the measure of damages as defined by the court to the jury was clearly
erroneous, the error or errors were not prejudicial, because it is apparent that the nursing
services his mother performed on his behalf were of a value of at least the sum of $1,000.
[Headnotes 4, 5]
Appellant contends that this item for nursing services, while a proper item of special
damages when claimed by the injured person, is not a proper subject of a direct claim against
the wrongdoer by the one performing the services.
Where the injured person is a minor, however, and costs of his care have been met by a
parent, a direct right of action by such parent against the wrongdoer exists. NRS 12.080,
Walker v. Burkham, 63 Nev. 75, 77, 161 P.2d 649, 165 P.2d 161. Here nursing care has been
provided by the mother and consequently she was entitled under our statutes to join in the
action as a party in order to recover the value of her services as a nurse.
Appellant filed in the court below and served upon respondents the points on which he
intended to rely on appeal which were as follows:
1. The second amended complaint and the evidence do not show or establish a cause of
action under the last clear chance doctrine.
2. The second amended complaint and the evidence do not show or establish a cause of
action on behalf of Irene Elvira Onufrock under the alleged third cause of action.
do not show or establish a cause of action on behalf of Irene Elvira Onufrock under the
alleged third cause of action.
3. The motion to retax costs should have been granted.
[Headnote 6]
At the same time, appellant designated therein as part of the record on appeal the transcript
omitting the testimony of Dr. Lenz, Dr. Herz, Dr. Farrell, and William E. Onufrock.
Respondents successfully demanded that this omitted testimony be included.
The testimony of Doctors Lenz, Herz, and Farrell concerned only the nature and extent of
Duane's injuries and therefore was relevant only to the amount of his damages, and the
testimony of William E. Onufrock concerned both Duane's injuries and the damages resulting
from the destruction of the motor scooter. As to the latter the jury disallowed any damages for
the loss of the scooter and therefore we are not concerned with the same on this appeal.
Because there was no question raised concerning the amount of the verdict for Duane, there
has been no need to consider any evidence relative to the nature and extent of his injuries.
Consequently the inclusion of such testimony in the Record on Appeal was a violation of
NRCP 75(e)
1
. Costs for the inclusion of such testimony were paid by appellant, and he is
entitled to his costs for such item in this court.
[Headnote 7]
Appellant contends that the court erred in denying its motion to retax costs with respect to
the charges for the deposition of Robert Francisco, one of the eyewitnesses to the
accident, of George James Armstrong, the appellant, and of Duane Onufrock.
____________________

1
NRCP 75(e): Record To Be Abbreviated. All matter not essential to the decision of the questions presented
by the appeal shall be omitted. Formal parts of all exhibits and more than one copy of any documents shall be
excluded. Documents shall be abridged by omitting all irrelevant and formal portions thereof. For any infraction
of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair
narrative statement proposed by another, the appellate court may withhold or impose costs as the circumstances
of the case and discouragement of like conduct in the future may require; and costs may be imposed upon
offending attorneys or parties.
for the deposition of Robert Francisco, one of the eyewitnesses to the accident, of George
James Armstrong, the appellant, and of Duane Onufrock.
The deposition of Francisco was taken prior to the filing of the action below in order to
perpetuate his testimony, because at the time Francisco was preparing to leave the State of
Nevada and establish residence in Montana. Although Francisco later returned for the
purpose of attending the trial as a witness and was sworn and testified at the trial, under the
circumstances prevailing in October 1956, when the deposition was taken, it was then
essential to respondent's case that the deposition be taken to perpetuate this testimony in the
event he should later refuse to return to Nevada. We think that the expense of taking such
deposition was a proper cost item.
[Headnote 8]
The deposition of appellant Armstrong was taken after the commencement of the action
for discovery purposes. In our opinion the expenses resulting from the taking of depositions
for the purpose of discovery are merely one of the many expenses connected with the
preparation for trial and should not be taxed as costs against the losing party, even when the
person whose deposition is taken is a party to the action.
[Headnote 9]
The same reasoning applies to the cost of a copy of the deposition of Duane William
Onufrock. Appellant caused this deposition to be taken and had he been successful, he would
not have been entitled to tax as costs the expenses connected therewith. Under the
circumstances we feel that inasmuch as the party who causes a discovery deposition to be
taken must stand the expense of the original and such copies as he may request, so also
should an adverse party pay for such copies as he may order as an expense connected with the
preparation for trial, without the right of reimbursement from the losing party.
The costs taxed for the Armstrong deposition were $37.S0 and for the copy of the Duane
Onufrock deposition $11.40 or a total of $49.20.
$37.80 and for the copy of the Duane Onufrock deposition $11.40 or a total of $49.20.
It is ordered that the judgment of the district court be modified by reducing the item of
costs therein from $260 to $210.80. As so modified, judgment affirmed.
____________
75 Nev. 350, 350 (1959) Martin v. Sterner
ETHEL FRANCES MARTIN and JAMES E. MARTIN, Wife and Husband in Their Own
Behalf and in Behalf of all Stockholders of LUCY GRAY MINES, a Corporation, Similarly
Situated, and LUCY GRAY GOLD MINING COMPANY, a Corporation, Appellants, v. A.
C. STERNER, Respondent.
No. 4166
June 29, 1959 340 P.2d 1004
Department No. 2.
Action involving ownership of unpatented lode mining claim owned by a corporation,
which ceased doing business in 1938 and which was not reinstated until some 18 years later,
during which time claim was relocated three times without contest on part of corporation.
From adverse judgment of the trial court, the plaintiffs appealed. The Supreme Court, Badt,
J., held that evidence sustained a finding of abandonment of claim and that evidence was
insufficient to establish that there was a resumption of work by plaintiffs in good faith by or
on behalf of corporation so as to prevent relocation.
Affirmed.
Charles H. Miles, Jr., of Las Vegas, for Appellants.
Cory, Denton & Smith, of Las Vegas, for Respondent.
1. Mines and Minerals.
In action involving ownership of unpatented lode mining claim owned by corporation, which ceased
doing business in 1938 and which was not reinstated until some 18 years later, during which time claim
was relocated three times without contest on part of corporation, evidence sustained a finding of
abandonment of claim.
2. Mines and Minerals.
In action contesting ownership of a mining claim which had been owned by a corporation, which ceased
doing business in 1938 and which was not reinstated until 1956, evidence was insufficient to establish that
there was a resumption of work by plaintiffs in good faith by or on behalf of corporation so as to prevent a
relocation.
OPINION
The case below involved a conflict between plaintiffs, alleging their ownership of an
unpatented lode mining claim in Clark County known as the Lucy Gray, and the defendant
who had relocated the same ground under the name of Arco after an asserted abandonment of
the ground by the former owners and after a forfeiture by the former owners by reason of
failure to perform the required annual assessment work for a number of years. The plaintiffs
relied on their resumption of work prior to defendant's asserted relocation, and also attacked
such relocation as invalid for want of an antecedent discovery of mineral in place, relying on
Garibaldi v. Grillo, 17 Cal.App. 540, 120 P. 425.
The names of the parties appearing as plaintiffs and subsequently as appellants herein
demand attention. The complaint was first filed on behalf of the Martins, in their own behalf,
and in behalf of all stockholders of Lucy Gray Mines, a Nevada corporation similarly
situated. It is agreed that so far as known there was and is no such corporation as Lucy Gray
Mines. Defendant having raised the question of the capacity of the plaintiffs to sue, the
plaintiffs filed a supplemental and amended complaint alleging that the plaintiffs had caused
the Lucy Gray Gold Mining Company to be reinstated as a Nevada corporation by paying
penalties for failure to file a list of officers and directors and certificate of resident agent
from 193S to 1954, inclusive, and had obtained a certificate of reinstatement on June 1S,
1956, over three months after the filing of the original complaint.
failure to file a list of officers and directors and certificate of resident agent from 1938 to
1954, inclusive, and had obtained a certificate of reinstatement on June 18, 1956, over three
months after the filing of the original complaint.
The court minutes show that on stipulation of the parties Lucy Gray Gold Mining
Company was added as the party plaintiff. During the proceedings defendant asked that it
be made clear to all who the party plaintiff was, and defendant's counsel agreed that the
plaintiff was Lucy Gray Gold Mining Company * * * together with Mr. and Mrs. Martin for
and on behalf of the corporation.
[Headnote 1]
The main contentions of appellants, as we understand them from the briefs and the oral
argument, are (1) that the evidence does not support the finding of an abandonment of the
Lucy Gray Lode by the plaintiffs, and (2) that even if there had been such an abandonment,
the evidence discloses such a resumption of work in good faith by the plaintiffs, prior to the
discovery and location by the defendant, as to preclude the defendant's location of the ground
as the Arco. In view of the fact that the corporation, then owner of the Lucy Gray Lode,
ceased doing business in Nevada in 1938, was not reinstated until June 1956, a period of
some eighteen years, that the property had remained dormant during this entire period, that it
was relocated in 1945 by one Harry Trehurne, that Trehurne performed annual labor through
1948, that the claim was then relocated by Robert Bright and Gray Bright in 1951, and that
those relocators performed no annual labor thereafter, that in 1955 one Frank Mahoney
posted a notice of location but did no further work thereon, that during the history of such
relocations Lucy Gray Gold Mining Company took no action to contest or attack the same, it
would appear that the finding of abandonment is amply supported by the record.
In support of the assertion of resumption of work, appellants refer to the testimony
showing that Mrs.
Martin and her party went to the claim on August 21, 1955, took geiger counters, black
lights, picks and shovels, took samples, posted notices, checked some of the monuments, did
some painting on the old mining equipment, posted notices of resumption of labor, knocked
off pieces of the sides of a drift, enlarged a drift, took some ore from the area of the drift, and
marked and checked boundaries on that date. The reference to taking ore from the drift had
mainly to do with sampling. On the following weekend appellants did some work on the road
and cleaned up one of the cabins. The testimony mentioned some other work minor in
character. There were other weekend visits to the claim. The trial judge after indicating that
there was no pretense that any attempt was made to relocate the property, remarked: They
went on and just assumed to do some things. I am not much impressed with what they
did * * *.
[Headnote 2]
Appellants contend that there was other evidence of resumption of work. On October 6,
1955 Mrs. James E. Martin, signing herself as Mgr. Owner Lucy Gray Mines, mailed
respondent copy of a publication signed by Louise Gray Bright, certified by a notary to the
effect that Mrs. Kenneth N. Bright (Louise Gray Bright) appeared before her and signed the
notice on August 23, 1955. In this notice the signer declared that the Lucy Gray Mine has
been abandoned and I, as a former owner, do hereby declare that by right of possession do
this day, together with Ethel Frances Martin, James Earl Martin, Burton James Martin (a
minor), Steven David Martin (a minor), Kenneth Gray Bright, Helen Opal Bright, Robert
Leonard Bright and Mary Judy Bright, do take possession of the Lucy Gray Mine, and serve
notice herewith of intention of doing assessment work and shall become the only legal
owners of said mine * * *. The plaintiffs further recorded, with the county recorder of Clark
County, an Affidavit of Resumption of Labor by Owners. This notice was signed by Ethel
Frances Martin and Lucy Gray Bright as owners, and stated that labor was resumed in the
interest of the signers and certain others.
owners, and stated that labor was resumed in the interest of the signers and certain others. On
February 27, 1956 Mrs. Martin, signing as manager, partner, and owner, filed an affidavit of
assessment work. On June 17, 1957, something over a year after the suit was commenced, a
further affidavit of assessment work was filed, which affidavit stated for the first time that the
claim was owned by Lucy Gray Gold Mining Company, Inc.
It is clear that all of the actions, filings, publications and notices thus relied on were the
actions of individuals and not of the corporation. They definitely say that the Lucy Gray Mine
has been abandoned and that they are claiming as former owners, and that they intend to do
assessment work. The only answer of appellants to this very obvious situation is that the
individuals were unfamiliar with legal matters and unfamiliar with the theory of the corporate
entity. The trial court found such purported explanation to be void of merit, and could not
very well have held otherwise.
The contention that the evidence shows that there was such resumption of work in good
faith by or on behalf of Lucy Gray Gold Mining Company, a corporation, as to prevent a
relocation is without merit. This conclusion obviates the necessity of our determining the
legal effect, hotly debated by counsel, of an abandonment as distinguished from a forfeiture,
bearing upon an asserted subsequent resumption of work.
Appellants devote most of their brief, and devoted most of their oral argument, to the
contention that there had been no antecedent discovery of ore in place by respondent to
support his relocation of the Arco. They concede that a subsequent discovery of ore in place,
in the completion of his location work, would support his location if their resumption of work
had not intervened. Berto v. Wilson, 74 Nev. 126, 324 P.2d 843; Cole v. Ralph, 252 U.S.
286, 40 S.Ct. 321, 64 L.Ed. 567. They insist, however, that the burden was on respondent to
prove his antecedent discovery before the asserted resumption of work. We have seen that
there was no resumption.
Respondent's testimony is that he posted his notice of location September 1, 1955,
erected his corner monuments and side center monuments September 10, 1955, and
completed discovery and location work on October 29, 1955 by constructing a vertical
shaft 11 feet deep by 6 feet square, which showed values in gold, silver and copper,
satisfying him that it was a valuable mine.
location September 1, 1955, erected his corner monuments and side center monuments
September 10, 1955, and completed discovery and location work on October 29, 1955 by
constructing a vertical shaft 11 feet deep by 6 feet square, which showed values in gold, silver
and copper, satisfying him that it was a valuable mine. See Berto v. Wilson, supra.
On November 9, 1955 he recorded his certificate of location, which the court found to be
in full compliance with requirements of the statute.
Affirmed.
____________
75 Nev. 355, 355 (1959) Sharp v. First Nat'l Bank
In the Matter of the Estate of CAROLINE
ROEBLING WALTERS, Deceased.
MARGARET ALLISON HAGNER SHARP and PETER JAY SHARP, as General Guardian
of PETER HAGNER SHARP, Appellants, v. FIRST NATIONAL BANK OF NEVADA,
Respondent.
No. 4147
August 28, 1959 343 P.2d 572
Department No. 2.
Proceeding for construction of will providing that in case of death, resignation, or inability
to serve of either of two designated trustees during minority of testatrix' children, a named
alternate trustee should succeed as trustee but that if such event should occur, after one of
surviving children should have reached the age of 21 years such child should succeed as
trustee. From an order of the trial court denying the petition, the daughter appealed. The
Supreme Court, Badt, J., held that it was intention of testatrix that her eldest child should
eventually succeed as trustee and that such succession should be given in effect after
eldest child attained majority, that it was not a condition of such succession that vacancy
in trusteeship occur only after such child attained her majority, and that fact that a
vacancy occurred in trusteeship during minority of eldest child and that a bank had been
appointed to administer trust did not forever bar such child from succeeding as trustee.
should eventually succeed as trustee and that such succession should be given in effect after
eldest child attained majority, that it was not a condition of such succession that vacancy in
trusteeship occur only after such child attained her majority, and that fact that a vacancy
occurred in trusteeship during minority of eldest child and that a bank had been appointed to
administer trust did not forever bar such child from succeeding as trustee.
Reversed.
Hawkins, Rhodes & Hawkins, of Reno, and Edmund T. Delaney, of New York, for
Appellant Margaret Allison Hagner Sharp.
Lloyd V. Smith, of Reno, for Appellant Peter Jay Sharp, as General Guardian of Peter
Hagner Sharp.
John S. Belford, of Reno, for Respondent.
1. Wills.
In construction of will, court seeks to ascertain intention of testatrix, but such intention must be found in
the words used by the testatrix, and if such words are unambiguous there is no occasion for construction.
2. Wills.
Rule that in construction of a will court is confined to determination of meaning of words used by
testatrix applies to the construction of an express provision of a will, but is not applicable where there is a
failure to make any provision at all.
3. Wills.
The intention of a testatrix need not have been expressed by specific words, and it may be derived from
the entire instrument as a whole, from its general scheme, or from informal language used, by necessary
implication.
4. Wills.
Cardinal rule of interpretation of will is to ascertain the intention of the testatrix.
5. Trusts.
Under will providing that in case of death, resignation, or inability to serve of either of two designated
trustees during minority of testatrix' children, a named alternate trustee should succeed as trustee, but that if
such event should occur, after one of surviving children should have reached the age of 21 years such child
should succeed as trustee, it was intention of testatrix that her eldest child should eventually succeed as
trustee, and that such succession should be given effect after eldest child attained majority, and
it was not a condition of such succession that vacancy in trusteeship occur only after
such child attained her majority, and fact that a vacancy occurred in trusteeship
during minority of eldest child and that a bank had been appointed to administer
trust did not forever bar such child from succeeding as trustee.
after eldest child attained majority, and it was not a condition of such succession that vacancy in trusteeship
occur only after such child attained her majority, and fact that a vacancy occurred in trusteeship during
minority of eldest child and that a bank had been appointed to administer trust did not forever bar such
child from succeeding as trustee.
OPINION
Appellant Margaret Allison Hagner Sharp, hereinafter referred to as Mrs. Sharp, petitioned
the court below for a construction of the will of Caroline Roebling Walters, testatrix,
petitioner's mother, the removal of the First National Bank of Nevada as trustee of Trust No.
541-1, and the appointment of petitioner as trustee of said trust. This appeal is from the order
denying the petition.
The petition for construction of the will sought a determination that it was the intention of
the testatrix that petitioner should succeed as trustee of a trust created by the will of the
testatrix, upon attaining her majority, in the event that the trustees named in the will should
not then be serving as trustees.
The petition also sought an order removing the First National Bank of Nevada for cause,
on the ground that the bank had improperly administered the trust created for her, and that in
its relations with her during the course of its administration it had been hostile,
uncooperative, perfunctory and lacking in loyalty, in violation of its duties as trustee, and had
failed and neglected to seek the advice and instructions of the court with respect to the
construction of the will of the testatrix. With respect to this phase of the appeal, the trial court
made findings contrary to the contentions of the petitioner, found that the bank had
administered the trust properly, had not been hostile, uncooperative, perfunctory, or lacking
in loyalty, and had in no wise violated its duties as trustee. This issue was the subject of a
large part of the evidence adduced and was the subject matter of many exhibits. It had to do in
great part with the matter of investment of the trust funds.
investment of the trust funds. There was ample evidence to sustain the court's findings and we
find nothing in the record to warrant a finding of violation of the trust by the bank. This phase
of the appeal will, therefore, not require further consideration by the court although it will be
necessary to include references to the nature and extent of the trust and its administration in
order to give a complete picture of the situation.
The will of Mrs. Walters, petitioner's mother, was admitted to probate January 29, 1940.
Under such will the residuary estate was to be divided into equal shares and left in trust for
Mrs. Walters' two daughters, Mrs. Sharp, the petitioner, and Mrs. Du Bose, her sister, for
their lives, with remainder to their descendants. The will, executed in 1938, named the father
of the girls, Alexander B. Hagner, and George Cutting as trustees, and the uncle of the girls,
Robert C. Roebling, as alternate trustee. However, by a codicil executed in 1939 Mr. Hagner
was removed as trustee and Mr. Roebling substituted. Such action followed the separation of
the Hagners, which culminated in a divorce. This left as the named trustees Mr. Cutting and
Mr. Roebling, with no named alternate. Item V of the will reads as follows: In case of death,
resignation, or inability to serve of either of my trustees hereinabove named during the
minority of my said children, I direct that my brother Robert C. Roebling shall succeed as
trustee. If such event should occur, however, after any one of my surviving children shall
have reached the age of 21 years, I direct that such child shall succeed as such trustee, and if
the event should occur after two or more of my surviving children shall have reached the age
of 21 years, I direct that the elder or eldest shall succeed as such trustee. On April 27, 1942
both named trustees, Mr. Cutting and Mr. Roebling renounced. This occurred during the
minority of both children, Mrs. Sharp being then aged ten years and her sister, Mrs. Du Bose,
aged five years. Thereupon the mother of the testatrix, Mrs. Blanche O'Brien, as guardian of
the children, petitioned the court for the appointment of the respondent bank to fill the
vacancy. The order was made and the bank appointed.
appointed. It thereupon set up two trusts, one for Mrs. Sharp and her descendants, which it
designated as Trust No. 541-1, and one for Mrs. Du Bose and her descendants, which it
designated as Trust No. 541-2. It has continued to administer both trusts up to the present
date. This appeal does not concern Trust No. 541-2.
On May 10, 1952 Mrs. Sharp attained the age of 21. Thereafter difficulties arose between
her and the bank. Mrs. Sharp criticized the bank's judgment in the matter of the trust's
investments, distribution of income, dealings which she characterized as uncooperative,
particularly with reference to her opinion as to the proper investment of trust assets based on
advice given to her by investment counsel, and criticized what she thought were excessive
charges by the bank as trustee. The aggregate of the two trusts at the time of the bank's
appointment amounted to about $1,000,000 and such aggregate at the present time appears to
be in the neighborhood of $2,500,000. As above noted, we are concerned on this appeal with
the matter of determining the intention of the testatrix with reference to the appointment of a
trustee.
In this respect the court came to the following conclusion: That from a construction of the
will and codicil it was not the intention of the testatrix that the eldest child should inevitably
succeed to the position of trustee but that the eldest child should succeed solely if the death,
resignation, or inability of the original trustees should take place during the child's majority.
Since the event occurred during the eldest child's minority, the intention of the testatrix as
expressed in the will and codicil did not give the eldest child a right to succession, although
the named trustees were not then serving as such. Error is assigned in this conclusion.
[Headnotes 1-3]
Respondent, in sustaining this conclusion, announces itself in full accord with the general
rule that in the construction of a will the courts seek to ascertain the intention of the testator
(In Re Hartung's Estate, 39 Nev. 200, 155 P. 353, 159 P. 864), but insists that such intention
must be found in the words used by the testator and that if such words are unambiguous
there is no occasion for construction.
that if such words are unambiguous there is no occasion for construction. Respondent cites 2
Page, Wills, 919, 921; 95 C.J.S. Wills, 591; 57 Am.Jur. Wills, 1124; and relies
particularly on Jones v. First National Bank of Nevada, 72 Nev. 121, 123, 296 P.2d 295, 296,
where this court said:
A court may not vary the terms of a will to conform to the court's views as to the true
testamentary intent. The question before us is not what the testatrix actually intended or what
she meant to write. Rather it is confined to a determination of the meaning of the words used
by her. It further quoted Wigram (Extrinsic Evidence in Aid of the Determination of Wills,
Second American Edition, pp. 53, 54) as follows: In other words, the question in
expounding a will is notWhat the testator meant? as distinguished fromWhat his words
express? but simplyWhat is the meaning of his words?
We do not question this rule. It applies, however, to the construction of an express
provision of a will. Under the facts of this case, we do not deal with that rule but with what
has often been referred to as the rule's complement, applying in situations where there is no
express provision to construe but, rather, a failure to make any provision at all. This has been
expressed in Brock v. Hall (Cal.App.), 198 P.2d 69, 72, affirmed 33 Cal.2d 885, 206 P.2d
360, 11 A.L.R.2d 672, in the following language: [T]he intention of the grantor need not
have been expressed by specific words, but may be derived from the entire instrument as a
whole, from its general scheme, or from informal language used, by necessary implication,
i.e., implication not based on conjecture, but so strong that a contrary intention cannot be
supposed to have existed in his mind. In Jones v. First National Bank we applied the primary
rule in order to determine what was meant by the specific bequest, To my husband John Paul
Jones I bequeath a livable wage until his death not to exceed $200 a month up to $2400.
There was no occasion to consider the complement to that rule which is applicable here. In
the instant case we find a contingency for which the trustor had not specifically provided, but
are able, through a consideration of the entire trust instrument, to determine the trustor's
intent in the event of such contingency.
able, through a consideration of the entire trust instrument, to determine the trustor's intent in
the event of such contingency.
[Headnote 4]
We may note first that this court In Re Hartung's Estate, 39 Nev. 200, 155 P. 353, 354, 159
P. 864, in considering an assigned error in the district court's decision as to what was the
intention of the testator expressed in his last will, emphasized that the cardinal rule of
interpretation of wills is to ascertain the intention of the testator.
The rule stated in Brock v. Hall, supra, is followed in In Re Watland, 211 Minn. 84, 300
N.W. 195; Eustace v. Dickey, 240 Mass. 55, 132 N.E. 852, 858; Dittemore v. Dickey, 249
Mass. 95, 144 N.E. 57; Metcalf v. Framingham Parish, 128 Mass. 370, 374; and Adams v.
Cook, 15 Cal.2d 352, 361, 101 P.2d 484, 489. In Metcalf v. Framingham Parish, supra, the
court said:
The decision of this question doubtless depends upon the intention of the testator, as
manifested by the words that he has used, and an omission to express his intention cannot be
supplied by conjecture. But if a reading of the whole will produces a conviction that the
testator must necessarily have intended an interest to be given which is not bequeathed by
express and formal words, the court must supply the defect by implication, and so mould the
language of the testator as to carry into effect, as far as possible, the intention which it is of
opinion that he has on the whole will sufficiently declared.
[Headnote 5]
Applying to our construction of Mrs. Walters' will the principles established in the
foregoing cases, we have no difficulty in coming to the conclusion, contrary to that reached
by the learned trial judge, that it was the clear intention of the testatrix that her eldest child
should eventually succeed as trustee; that such succession should be given effect after the
eldest child attained majority; that it was not a condition of such succession of the eldest child
as trustee that a vacancy in the trusteeship must occur only after such child attained her
majority; that it cannot be said to have been the intention of the testatrix that the
succession of the eldest child as trustee would be forever defeated by the fortuitous
circumstance that the vacancy occurred during her minority and that out of necessity
respondent First National Bank, a corporation having perpetual existence, had been
appointed to administer the trust.
majority; that it cannot be said to have been the intention of the testatrix that the succession of
the eldest child as trustee would be forever defeated by the fortuitous circumstance that the
vacancy occurred during her minority and that out of necessity respondent First National
Bank, a corporation having perpetual existence, had been appointed to administer the trust.
In reaching this conclusion we note certain facts that stand out persuasively. The testatrix
never manifested any intention to have respondent bank act as trustee. The bank was not
mentioned in the will. Had either of the named trustees died or resigned or renounced after
Mrs. Sharp became 21 years of age, there would have been no question that she would have
been entitled to be appointed trustee. Manifestly, if the vacancy occurred while both
daughters were minors, neither could have qualified as trustee. The provision for the
appointment of the alternative trustee to fill a vacancy occurring during such minority was in
our opinion simply a recognition of such obvious situation and not the creation of a condition.
The appointment of the bank, after the renunciation of the named trustees, and at the time
when Mrs. Sharp was ten years old and Mrs. Du Bose five, was made by reason of such
contingency then existing.
The testatrix by her will and codicil named two individual trustees and an individual
alternate trustee. She apparently did not have in mind the appointment of a bank, trust
company, or other corporate trustee. When the testatrix separated from her husband Hagner,
she removed him as trustee, changed the appointment of Roebling as an alternative trustee to
a named trustee (in place of Hagner) but neglected to name one or more alternates in case
Roebling and Cutting failed to qualify or continue to act. Hagner, Cutting, and Roebling were
all one generation older than the two children, so that it could have been expected in the
normal course of events, first, that the trustees would be acting at the time the children
attained majority (note that even the possibility of more children was contemplated), and
secondly, that a time would occur in the course of the administration of the trust when the
eldest daughter would succeed.
That event, however, could never occur if the fortuitous appointment of the bank should be
perpetual. It appears from the testimony of Mrs. Sharp that the use of personal trustees was in
keeping with family policy. In like manner her uncle had been appointed trustee under her
grandfather's will, to take office as such at the age of 21, and he was so appointed. The actual
language of the will does not supply the omission.
Here a contingency arose for which provision was not made. The court has then to make a
choice of one of two conclusions in determining the intent of the testatrix. She had provided
that in the event of vacancy after Mrs. Sharp attained the age of 21, Mrs. Sharp should be
appointed. In the event of a vacancy before Mrs. Sharp attained the age of 21, no provision
was made. The vacancy occurred when she was ten years old, and the bank was appointed in
an ex parte proceeding. The petitioning guardian could of course speak for the minors only
for the period of their minority. Neither appellant, then ten years of age, nor her sister, then
five, could speak for herself. The named trustees, having renounced, were not interested.
When appellant became 21 and sought her own appointment the bank insisted, and insists on
this appeal, that a condition of her right to appointment was the occurring of a vacancy after
she became 21; that such condition never occurred, that it cannot occur, that she can never be
appointed. We can come to no other conclusion but that the acceptance of such contention
would be the complete frustration of the trustor's intentions as gleaned from the four corners
of the trust instrument and the conditions and circumstances appearing in the record.
The questions herein discussed and determined have no bearing upon the disposition of the
bank's Trust No. 541-2, having to do with the trust estate of Mrs. Du Bose for her life, with
remainder to her descendants, as it appears from the record that she has requested that the
First National Bank of Nevada continue to administer her trust estate. It has to do only with
the appeal of Margaret Allison Hagner Sharp and of Peter Jay Sharp as general guardian of
Peter Hagner Sharp involving Trust No.
involving Trust No. 541-1 of respondent First National Bank of Nevada.
Reversed and remanded with instructions for the entry of an order for the removal of the
bank as trustee and the appointment of Margaret Allison Hagner Sharp as trustee of the trust
created by the last will and codicil thereto of Caroline Roebling Walters, deceased, in favor of
the said Margaret Allison Hagner Sharp and her descendants, under such proceedings as may
appear proper. Each party shall pay her, his, and its own costs on this appeal.
____________
75 Nev. 364, 364 (1959) Tarsey v. Dunes Hotel
JASON TARSEY, Appellant, v. THE DUNES HOTEL, INC.,
a Nevada Corporation, Respondent.
No. 4168
September 11, 1959 343 P.2d 910
Proceeding on appeal from an order of the trial judge denying motion to disqualify him
from acting as judge in trial of action. The Supreme Court, McNamee, J., held that where
case was set for trial before certain judge who less than 10 days before date of trial assigned
case to another judge, upon the filing of an affidavit of prejudice in accordance with statute
assigned judge had a duty to proceed no further in action other than to assign the same to
another judge, notwithstanding fact that affidavit was not filed 10 days prior to date of trial.
Reversed and remanded with directions.
Ralston O. Hawkins, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
1. Judges.
Proviso that affidavit of prejudice against judge before whom action is to be tried must be filed at least 10
days before date set for trial, pertains to the affidavit of prejudice relating to judge who has been judge of
case for at least 10 days before date set for trial. NRS 1.230, subd. 5.
2. Judges.
Where action had been set for trial and before a certain judge but in less than 10 days before trial date
such judge assigned action to another judge for trial, upon the filing of affidavit of prejudice against
assigned judge by party in accordance with statute, assigned judge was required to proceed no further in
action other than to assign the same to another judge, notwithstanding fact that affidavit of prejudice was
not filed at least 10 days before date set for trial as required by statute. NRS 1.230, subd. 5.
OPINION
This is an appeal from the order denying appellant's motion to disqualify the Honorable
John F. Sexton from acting as judge in the trial of the action below.
On December 10, 1956 Tarsey commenced suit against The Dunes Hotel, Inc. After the
case was at issue, the trial was set for June 9, 1958 before the Honorable A. S. Henderson, but
prior to said date of trial, the trial setting, on a contested motion for continuance, was vacated
and reset for September 12, 1958 before Judge Henderson. On September 5, 1958 Judge
Henderson by minute order made a general assignment of all matters in his department to
Judge Sexton. Counsel for appellant was notified of this assignment on September 8, 1958 by
counsel for respondent. On September 10, 1958, counsel for appellant filed a motion to
disqualify Judge Sexton. In support thereof and pursuant to NRS 1.230(5), he filed at the
same time appellant's affidavit alleging bias or prejudice, his own certificate as attorney that
the affidavit was made in good faith and not for delay, and he paid to the clerk of the court the
required fee.
On September 12, 1958, the said motion to disqualify was heard by Judge Sexton and
denied. Appellant then stated to the court that he was not prepared to go to trial at that time,
whereupon the court granted respondent's motion to dismiss the action without
prejudice.
trial at that time, whereupon the court granted respondent's motion to dismiss the action
without prejudice.
NRS 1.230(5), provides in part as follows:
A judge shall not act as such if either party to a civil action in the district court shall file
an affidavit alleging that the judge before whom the action is to be tried has a bias or
prejudice either against him or in favor of an opposite party to the action. The judge shall
proceed no further therein but either transfer the action to some other department of the court,
if there be more than one department of the court in the district, or request the judge of some
other district court of some other district to preside at the hearing and trial of the action.
Every affidavit must be filed before the hearing on any contested matter in the action has
commenced, and if no contested matter has been heard in the action prior to the day of the
trial thereof, then the affidavit must be filed at least 10 days before the date set for the trial of
the action. No affidavit shall be filed unless accompanied by a certificate of the attorney of
record for affiant that the affidavit is made in good faith and not for delay, and the party filing
the affidavit for change of judge shall at the time of filing same pay to the clerk of the court in
which the affidavit is filed $25 * * *.
Plainly, if Judge Henderson had given no assignment to any other judge after his hearing
of the contested motion for continuance, neither party thereafter could have disqualified him
under this section, and if he had heard no contested matter in the action, an affidavit charging
him with prejudice was required to be filed at least ten days before the date of the trial.
This case, however, is complicated by the fact that after Judge Henderson had heard a
contested matter therein, it was assigned to Judge Sexton less than ten days before the date set
for the trial. Under such circumstances respondent claims that the said statute by its own
limitations provides no remedy for disqualification of Judge Sexton and to hold otherwise
would be judicial legislation liberalizing a statute which by its very nature, and because of
judicial authority,1 should be strictly construed.
very nature, and because of judicial authority,
1
should be strictly construed.
Such a limited construction of the statute would absolutely defeat the obvious intent of the
legislature and that would in our opinion amount to judicial legislation in defiance of the
wishes of both the bar and the legislature.
[Headnotes 1, 2]
The proviso that the affidavit must be filed at least ten days before the date set for the trial
obviously pertains to an affidavit of prejudice relating to the judge who has been the judge of
the case for at least ten days before the date set for the trial. We therefore hold that when an
action has been given a date certain for trial and within the period of ten days before that date
the action is assigned to another judge for trial, either party before the trial and within said ten
day period may avail himself of the ground for disqualification specified in said statute. In
such event it would be immaterial whether or not prior to such assignment a contested matter
had been heard in the action before a different judge.
Under a similar statute but one which required the affidavit of prejudice to be filed not less
than three days prior to the time set for trial, in a case where the assignment to the allegedly
prejudiced judge was made within 24 hours of the time of trial, the majority opinion in the
case of Wolf v. Marshall, 120 Ohio St. 216, 165 N.E. 848, 849, contains these words: * * *
it is entirely self-evident that in such case the counsel cannot file an affidavit of prejudice
against the trial judge more than three days before the day the cause is set for trial. To
construe section 1687 as requiring such action upon the part of counsel is to charge the
Legislature with enacting a law that amounts to a plain absurdity. A majority of this court are
of the opinion that the Legislature did not intend to require the performance of an impossible
act; nor did it intend to so frame the law that a prejudiced judge might insist upon going
ahead with the trial, notwithstanding the fact that an affidavit of prejudice had been filed
by counsel at the earliest time that it could possibly be known that the case had been
assigned for trial before such prejudiced judge."
____________________

1
State ex rel. Jacobs v. District Court, 48 Mont. 410, 138 P. 1091.
act; nor did it intend to so frame the law that a prejudiced judge might insist upon going
ahead with the trial, notwithstanding the fact that an affidavit of prejudice had been filed by
counsel at the earliest time that it could possibly be known that the case had been assigned for
trial before such prejudiced judge.
We are not unaware of a seemingly contrary result in the case of Notargiacomo v.
Hickman, 55 N.M. 465, 235 P.2d 531. This case, however, can be distinguished by the fact
that for more than ten days before the beginning of the term of court, counsel was cognizant
that the case would be tried by one of two designated judges from other districts. In New
Mexico the procedure of filing provisional affidavits of prejudice against several judges is
recognized. Under such circumstances the court stated that counsel had the opportunity to file
a provisional affidavit against the one of claimed bias more than ten days before the
beginning of the term of court.
Upon the filing of the affidavit of prejudice in compliance with the statute, it was the duty
of the trial judge herein to proceed no further in said action other than to assign the action to
another judge as provided by law. State ex rel. Kline v. District Court, 70 Nev. 172, 264 P.2d
396; State ex rel. Stokes v. District Court, 55 Nev. 115, 27 P.2d 534; State ex rel. Beach v.
District Court, 53 Nev. 444, 5 P.2d 535; Stephens v. Stephens, 17 Ariz. 306, 152 P. 164;
Wendel v. Hughes, 64 Ohio App. 310, 28 N.E.2d 686. His denial of the application to
disqualify him was error.
Judgment reversed and cause remanded, with directions that proceedings be had in
accordance with this opinion.
____________
75 Nev. 369, 369 (1959) Allied Prop. v. Jacobsen (X App.)
ALLIED PROPERTIES, Appellant, v. HAROLD JACOBSEN and JOSEPHINE
JACOBSEN, His Wife, Respondents.
No. 4164
HAROLD JACOBSEN and JOSEPHINE JACOBSEN, His Wife, Appellants, v. ALLIED
PROPERTIES, Respondent.
No. 4165
September 16, 1959 343 P.2d 1016
Appeal from judgment of the Fourth Judicial District Court, Elko County; Taylor H.
Wines, Judge, in favor of respondents.
Action for damages resulting from defendant's alleged trespass de bonis asportatis by
reason of defendant's removal of plaintiffs' cattle from an enclosed area comprised partially of
privately owned lands, and partially of public lands. The trial court entered judgment for
plaintiffs and defendant appealed, and plaintiffs filed a cross appeal seeking additional
damages. The Supreme Court, Badt, J., held that where cattle owners did not establish a
license to graze their livestock on defendant's range for year in question, peaceful removal by
defendant of owners' steers from the field to a grazing area of the public domain covered by
owners' grazing permit did not subject defendant to owners' action for trespass de bonis
asportatis.
Judgment reversed. Cross-appeal by respondents dismissed.
Orville R. Wilson, of Elko, for Appellant and Cross-respondent.
Williams & Mann, of Elko, for Respondents and Cross-appellants.
1. Licenses.
Where the use for which a license is required is a continuing use, the license coextensive with the use is
a continuing license, and permission granted under such a license will be deemed to continue until revoked.
2. Licenses.
Where a license is for a specific purpose to accomplish a specific act, once the act and purpose have been
completed, the license terminates.
3. Licenses.
If a licensor and a licensee should reasonably expect that for each separate use of land for a desired
purpose permission should be asked, then it should be presumed that permission granted is for a single use.
4. Licenses.
The fact that need for a license to graze cattle on certain lands was recurring each year was not enough, in
law, to warrant a construction of license granted for use of the land for one year as a continuing one, in the
absence of an express consent or a consent necessarily implied through conduct or acquiescence of the
licensor.
5. Licenses.
Party who grazed his cattle on another's land had burden of proving his license to do so.
6. Licenses.
A continuing license to graze livestock on the range of another for an unlimited number of years may be
implied only on a clear showing that such was the intention of the licensor.
7. Trespass.
Where certain cattle owners did not establish a license to graze their livestock on defendant's range for a
year in question, peaceful removal by defendant of owners' steers from the field to a grazing area of the
public domain covered by owners' grazing permit did not subject defendant to owners' action for trespass
de bonis asportatis.
8. Trespass.
Whether cattle grazing on lands under the jurisdiction of the Federal Bureau of Land Management were
in trespass or not was not a federal question to be determined under federal law, but depended on existence
of a private agreement.
9. Trespass.
Where certain cattle owners failed to show a right to have their cattle grazing on certain public lands, and
failed to show damage resulting from defendant's peaceful removal of the cattle from such lands, owners
could not complain because the removal was effected by defendant rather than by the Bureau of Land
Management, even if jurisdiction over removal of trespassing livestock was exclusively vested in the
Bureau of Land Management.
OPINION
Allied Properties has appealed from a judgment against it and in favor of Harold Jacobsen
and Josephine Jacobsen, his wife, in the sum of $3,023.49 damages resulting from Allied's
trespass de bonis asportatis by reason of Allied's removal of Jacobsen's cattle from the
enclosed area known as Lime Mountain Field.
Jacobsen, his wife, in the sum of $3,023.49 damages resulting from Allied's trespass de bonis
asportatis by reason of Allied's removal of Jacobsen's cattle from the enclosed area known as
Lime Mountain Field.
Jacobsen, in June 1952, placed certain of his cattle in the Lime Mountain Field, situate in
the cattle country of northern Elko County, and Allied put them out of the field July 23, 1952.
Jacobsen's action for damage for trespass de bonis asportatis followed.
The primary question presented to this court is whether the Jacobsen cattle, at the time
they were turned out, were properly in the Lime Mountain Field (in which event notice should
have been given to Jacobsen of Allied's intention so to do, 53 C.J.S. Licenses sec. 94, p. 821)
or whether Jacobsen's cattle were then trespassing (in which event no notice to Jacobsen prior
to removal was required. 2 Am.Jur. Animals sec. 126, p. 787). It is Jacobsen's contention that
he had an annual license from Allied to graze his cattle in said field and that they were
therefore properly there and could not be removed without prior notice to him. Allied
concedes that it granted to Jacobsen a license to place certain steers in the field in June 1951,
to graze in common with the steers of Allied and two other users, namely, Reed and Sharpe,
for a limited period that season and contends that the license thus given was limited to that
season and that when Jacobsen again placed his steers in Lime Mountain Field in June 1952
he was there without right and in trespass.
The question as thus presented is disarmingly simplified. The proper application of the law
to the facts of this case requires a rather complete understanding of the situation under which
the asserted license was given.
The Lime Mountain Field is an extremely large area, appearing from the map to be some
six miles easterly and westerly and some five miles or more northerly and southerly. It
appears roughly to be comprised one-half of the privately owned lands of Allied and Reed
and one-half government land. It is traversed by what appear to be public roads, and a number
of creeks flow into and out of itChicken Creek, Hot Creek, Deep Creek and others.
others. Bull Run Creek is to the north. The Reed properties are to the east. Allied also has
very extensive properties to the north, to the east and to the west of the Lime Mountain Field
and extending far to the west, to the neighborhood of the Deep Creek reservoir.
Mark Scott was Allied's foreman from 1936 to 1953. The Lime Mountain Field was partly
surrounded by fences prior to 1936. The east boundary fence was in and part of the west
boundary fence was in. The north boundary fence was built in 1943. The west fence had been
built by the Garrats, Allied's predecessors, long before, but leaving about one and one-half
miles of fence open. This gap was closed by the construction by Scott of the fence in 1947 or
1948 with the permission of Boyd Hammond, the range federal manager, upon obtaining the
consent of other stock owners whose stock drifted into the area. As respondents' witness,
Scott testified that, with the south end and the west side open, they got so they was turning
their cattle in there in the spring early, and that is the reason we put the fence in * * *. They
were turning them out around Chicken Creek and down on Deep Creek inside this field. He
described the operation of Lee Reborse, Jacobsen's predecessor. Reborse turned his cattle out
down by the VN ranch, which appears from the map to be some nine or ten miles west of the
westerly boundary of Lime Mountain Field. When he came back in the spring he would work
his cattle, put his steers on the reserve and put his cows and calves in the Cornucopia area and
along Canyon Creek and Chicken Creek, an area entirely outside the Lime Mountain Field.
The only ones who turned stock into the Lime Mountain Field, and into the Lime Mountain
area before the fence was closed, were Allied, Reed, and Sharpe. The only other livestock that
got into the Lime Mountain Field after the fence was completed would be in the event
somebody might leave the gate down, or some crawl through the fence, and when the cattle
were gathered later, there would always be some other cattle in it of various brands. Other
stock that got into the field were stock of Tuffy Andrae, Jacobsen, Pio Achabal, Dr. Stevens,
and Ellison. These other people did not drive into that area.
did not drive into that area. They did not turn out in the area. Jacobsen's predecessors did
not turn out in that area. Only one, Tuffy Andrae, put some cattle in the area, that is the
reason we put the fence in. After the construction of the fence, a few drifted in through the
fence or through gates or over cattle guards. These were cattle that had been grazing outside
in the Taylor unit. The only three outfits that actually turned out in the Lime Mountain area
that really had a right to turn out [there] were Allied, Sharpe, and Reed. This was up to the
time that Andrae attempted to turn out there and was resisted.
All this presents the precise picture. The fence was built to keep Allied stock in the area
(with Reed and Sharpe) and to keep other livestock out of the area. It was not customary for
anyone to run in that field but Allied, Sharpe, and Reed.
The Bureau of Land Management,
1
through its range manager, Boyd Hammond, had
granted oral permission to Allied to close the gaps in the fence upon obtaining consent of the
stockowners whose stock drifted into the area. Such oral consent was not given pursuant to a
formal written petition to be later acted upon by the Bureau of Land Management (after
notice, etc., as contemplated by the terms of the Taylor Grazing Act, NRS 568.010 et seq.),
but it was pursuant to such oral consent that Mark Scott, as Allied's foreman, completed the
fences in 1947 and 1948. Allied, Reed, and Sharpe were granted grazing permits to run in
common in this area. Scott contacted the neighbors, including Jacobsen's predecessor and, no
objections being made, the fences were constructed, and thereafter Allied, Reed, and Sharpe
turned their cattle into Lime Mountain Field in June of each year and had them all removed
toward the end of July when the field had been grazed off. In 1951 and 1952 Jacobsen was
given a permit by the BLM to run, after June 15, in the Taylor unit outside of this field, per
customary use, and 100 percent on the public domain. His entire herd ran to about 250 head,
which included about 60 steers.
____________________

1
See footnotes 1 and 4 in Ansolabehere v. Laborde, 73 Nev. 93, 310 P.2d 842.
to about 250 head, which included about 60 steers. The size of the Allied outfit may be
gleaned from the fact that in 1952 it was running about 1,400 steers (in addition to the Reed
and Sharpe steers) in the Lime Mountain Field. This, to a cattleman, would indicate a
complete herd of some 8,000 head of Allied's cattle.
It was under these circumstances that a conversation was had between Jacobsen and Scott
that June morning, 1951. It is from such conversation under the circumstances recited, that it
must be determined whether the license granted by Allied, through its foreman Scott, was
restricted to the year 1951 (as contended by Allied) or continued on to 1952 and succeeding
years, until revoked (as contended by Jacobsen).
Scott's testimony is brief. I gave Jacobsen permission to put some cattle in the field. * * *
around the first of June [1951] * * *. He met me and told me that he would like to put some
cattle in there, I think he asked for about 50 head * * *. He was stuck for feed, so I gave him
permission to put them in.
Jacobsen's statement was as follows: Well, he [Scott] said that the Allied owned a large
majority of the land lying in * * * the Lime Mountain Field, but he said it was also true that
there was some of it that didn't belong to them and that our cattle had gone on in there in the
past but he said we control it because of that and they had an agreement to build the fence
with the unit users and so I said, well, if I were to agree to run the same type of cattle in there
as yours, run my steers in there, I will have about sixty head, would it be all right with you to
take up my use in that particular area with the steer use, and he agreed to it; * * *. He said
that they ordinarily took their cattle in the last part of May, whenever the feed got good; they
went according to the feed, and he asked if I would follow along the same line so we could
work them together, which I agreed. * * * I said that I would. * * * I asked him about what
time he took them out, and he said about the 1st of August, and I told him that that would
agree with my working too, although I didn't know how long it would take me to hay, but as
long as the hay was up and I had a field, I would move mine out."
I would move mine out. He then described in some detail his proposed change of operation
by putting his cows and calves on the forest reserve (instead of steers as done by his
predecessor) and finding other pasture for his steers in July and until his hay lands could
receive them after haying. He testifies further:
I said [to Mark Scott] that I would run the same type of livestock during the same season,
approximately * * *. I told them that I probably couldn't get mine out as soon as they did
because of my haying, but as soon as I got the hayfield ready, it would work out fine. * * * If
I used the words in my former testimony that I would follow the pattern of operations of the
Allied, it wasn't that I was going to do whatever they said.
Scott did not deny any of these statements, nor did Jacobsen deny Scott's testimony as
quoted above. The case was not submitted to the trial court for several months after the
evidence was concluded. The court then issued an opinion from the bench containing
sundry findings and conclusions. The trial court stated that it was unable to cope with the
question of damages and recommended either a new trial on the issue of damages or that a
transcript of the testimony be prepared. It is obvious that after the long period following the
trial, without a transcript of the testimony, the court had equal difficulty in recalling the
testimony as to the extent of the license granted. The court recited that the fences were closed
in 1951, whereas they had been closed in 1947 and 1948. The court recited that Jacobsen
would not protest the building of the fences after Scott had granted Jacobsen permission to
graze annually a limited number of steer cattle for a specified period. As noted, the fences
were built in 1947 and 1948, when Jacobsen was not in the cattle business in the vicinity. The
consent to building the fence had been given by one of Jacobsen's predecessors, and with no
conditions attached. The court's statement indicates something in the nature of an agreement
for a consideration. Such is nowhere claimed by Jacobsen. The court refers to the years herein
involved as 1952 and 1953. It is conceded that these years were 1951 and 1952. That
Jacobsen was granted a license "to graze annually" a number of steers appears nowhere in
the testimony.
granted a license to graze annually a number of steers appears nowhere in the testimony.
We are confronted with the quite definite fact that Scott, in granting the license to
Jacobsen, did not in words specify that it was to be limited to the 1951 use only. Nor did
Jacobsen, despite the length and fluency of his testimony, say that the license was to graze his
steers in Lime Mountain Field annually, or for a continuing period, or for any number of
years, or until he received notice of revocation, or any other words to such effect.
[Headnotes 1, 2]
With reference then to the tenure of the license, we can recognize two situations.
(1) Where the use for which the license is required is a continuing use, in which instance
the license coextensive with the use would be a continuing license. Permission once granted
would in such case be deemed to continue until revoked. See Cary Hardware Co. v. McCarty,
10 Colo.App. 200, 50 P. 744.
(2) Where the license is for a specific purpose to accomplish a specific act. Once the act
and purpose have been completed, the license is then terminated. See Thayer v. Brainerd,
D.C.Mun.App., 47 A.2d 787.
[Headnote 3]
Between these two might be said to fall cases in which a license is for a specific purpose,
but it is to be recognized that the need to accomplish this purpose would be recurring at
regular intervals. In such instances the permission might expressly be for a continuing use.
Where there is no express consent nor any express limitation the question whether the license
is to extend for a single exercise or is to include recurring use in the future would have to
depend upon the circumstances of the particular case. If the licensor and licensee should
reasonably expect that for each separate use of the land for the desired purpose permission
should be asked, then it should be presumed that permission granted is for the single use.
Such would seem to be the case here. Even though a licensor recognizes that the
licensee's need for pasture will be recurring each year, still, in the normal course of
human relations, and particularly under the conditions here pictured, he would be entitled
to expect that the licensee would request permission to graze in his field on each
occasion, and the licensee should certainly feel obliged to request permission each year.
licensor recognizes that the licensee's need for pasture will be recurring each year, still, in the
normal course of human relations, and particularly under the conditions here pictured, he
would be entitled to expect that the licensee would request permission to graze in his field on
each occasion, and the licensee should certainly feel obliged to request permission each year.
The same would seem to be true in many seasonal uses, those occurring annually, since
circumstances might well change from year to year and permission granted for one year
without express limitation or express reference to the future should be deemed to apply to that
year only.
[Headnote 4]
In such cases, then, they should be held to fall within the rule applying to a license for a
specific act, and the fact that the need for the license will be recurring each year is not
enough, in law, to warrant a construction of the license as a continuing one in the absence of
an express consent or a consent necessarily implied through conduct or acquiescence of the
licensor.
[Headnotes 5, 6]
Such conclusion is supported by well-established principles of law, under the most clearly
applicable of which Jacobsen had the burden of proving his license to graze his steers in the
Lime Mountain Field in 1952. See 33 Am.Jur. License sec. 112, p. 415. His license for a
limited period in 1951, not disputed by Allied, obviously did not in itself meet this burden.
Reliance on the conversation between Jacobsen and Scott, in which neither party mentioned
the term of the license, threw an even stronger burden on Jacobsen. Since the parties did not
express themselves in regard to the length of time, we must determine it from the surrounding
circumstances. Coquille Mill & Tug Co. v. Robert Dollar Co., 132 Ore. 453, 285 P. 244,
253. In the same case it was said that a license for an unlimited time to enter on another's land
for the removal of timber therefrom was so unreasonable in its nature that no contract would
be held to have such effect unless it is plainly manifest from its terms that such was the
intention of the parties."
that such was the intention of the parties. It is true that the Coquille case is distinguishable in
several respects. It is a logging case, not in complete analogy with a grazing case, and a
considerable body of law has evolved in the northwest timber region covering such cases, in
one of which (Hendrickson v. Lyons, 121 Wash. 632, 209 P. 1095) it was noted that granting
to a purchaser of timber an unlimited time for its removal has the effect of practically ousting
the owner of the soil from its use and enjoyment, an intention which (as stated in Cummer
Co. v. Yager, 75 Fla. 729, 79 So. 272) the law will not presume unless the contract of sale
clearly requires such a conclusion. A body of law has likewise evolved in the western states
where livestock are grazed on the public domain, growing out of customary use protected by
the police powers of the states and the private ownership of strategic lands and watering
places; and later growing out of permits issued by the Secretary of the Interior or the Bureau
of Land Management. Instead of growing timber these grazing lands produce an annual
forage crop, whose consumption by the livestock of others ousts the owner or the permittee
pro tanto from its use and enjoyment. Access to spring, summer or fall range, as the case may
be, is as essential to a livestock operation in the west as is the irrigated land that produces the
winter feed, or as is the ownership of the livestock itself. Accordingly a continuing license to
graze livestock on the range of another for an unlimited number of years may be implied only
on a clear showing that such was the intention of the licensor.
[Headnote 7]
It follows that Jacobsen was in trespass from the time he turned his steers into the Lime
Mountain Field in 1952, and that the peaceful removal of his steers from the field to a grazing
area of the public domain covered by Jacobsen's grazing permit from the Bureau of Land
Management did not subject Allied to Jacobsen's action for trespass de bonis asportatis.
[Headnotes 8, 9]
Respondent insists that by reason of the provisions of the range code Allied was barred
from all authority to remove Jacobsen's livestock even if they were concededly in trespass;
that power of removal of trespassing livestock was exclusively vested in the Bureau of
Land Management; and that removal by Allied without notice subjected the latter to
Jacobsen's action for damages even if Jacobsen's cattle were in trespass.
remove Jacobsen's livestock even if they were concededly in trespass; that power of removal
of trespassing livestock was exclusively vested in the Bureau of Land Management; and that
removal by Allied without notice subjected the latter to Jacobsen's action for damages even if
Jacobsen's cattle were in trespass. Such was the conclusion of the trial court, and in this we
think the court erred. Whether the cattle were in trespass or not was not a federal question
under federal law. Garcia v. Sumrall, 58 Ariz. 526, 121 P.2d 640. The question depended on
the existence of a private agreement. There was no occasion to refer to BLM for any
determination of Jacobsen's right to the use of the field. If he had no right to be there, then he
has suffered no damage through breach of any right he possessed unless, and only unless, he
was injured by the manner in which the cattle were removed. There is no indication that such
was the case. The damage resulted from not permitting the cattle to remain where they were.
To allow a recovery for such damage simply because they were removed by Allied and not by
BLM would be to recognize in Jacobsen a right to trespass and to permit him to profit by his
own wrong. Thus, having failed to show a right to be where he was or to show damage
resulting from the manner in which his cattle were removed, he cannot complain because the
removal was effected by Allied rather than by BLM, since such removal has not injured him
in any right possessed by him.
It has been noted that the manager of the Bureau of Land Management granted authority to
Allied to fence the field comprising an area containing privately owned as well as public land.
This was a practical solution of a practical problem which eliminated the possibility of range
disputes within the area. Drift rights are not in question. If this was a workable solution
within the power of the Bureau of Land Management, it would be such only if it included the
right of the grantees to remove trespassing cattle. This court is not disposed to destroy the
workability of such an arrangement and thus destroy the authority of federal range managers
to enter into arrangements of this nature.
Nor do we think that the informality in which permission to close the fence was granted
can be asserted by Jacobsen in view of the consent of his predecessor in interest. Such
consent, in our opinion, is a waiver of the right now to raise the point.
Jacobsen filed a cross-appeal, contending that additional damages should have been
allowed. Since the judgment in favor of Jacobsen must be reversed, his cross-appeal is
dismissed.
Reversed with costs.
McNamee, C. J., and Merrill, J., concur.
____________
75 Nev. 380, 380 (1959) Cook v. Maremont-Holland Co.
LYLE COOK, Appellant, v. MAREMONT-HOLLAND CO., a Nevada Corporation,
BRIGHT-HOLLAND CO., a Nevada Corporation, NEMEROFF-HOLLAND CO., a Nevada
Corporation, Doing Business as HOLLAND LIVESTOCK RANCH, a Partnership,
Respondents.
No. 4173
September 22, 1959 344 P.2d 198
Appeal from judgment of Second Judicial District Court, Washoe County; Grant L.
Action by cattle rancher against sheep rancher for unlawful trespass by sheep rancher's
herding of his sheep upon cattle rancher's land and for an injunction against threatened
continuing trespass. The trial court rendered judgment for cattle rancher, and sheep rancher
appealed. The Supreme Court, Badt, J., held that fact that Bureau of Land Management
granted sheep rancher and cattle rancher licenses for use of federal range for grazing did not
authorize sheep rancher to graze livestock on privately owned land of cattle rancher even
though licenses were for land in same grazing area and lands of both ranchers were unfenced.
Affirmed.
Grubic, Drendel & Bradley, of Reno, for Respondents.
1. Public Lands.
Fact that Bureau of Land Management granted sheep rancher and cattle rancher licenses for use of federal
range for grazing did not authorize sheep rancher to graze livestock on privately owned land of cattle
rancher even though licenses were for land in same grazing area and lands of both rancher's were unfenced.
Taylor Grazing Act, 43 U.S.C.A. sec. 315 et seq.
2. Estoppel; Public Lands.
Fact that sheep rancher and cattle rancher accepted adjudication of Bureau of Land Management with
respect to rights in public range did not constitute an acceptance of adjudication by sheep rancher and
cattle rancher of use of their unfenced lands in area of public domain lands by the other's sheep or cattle
and did not estop cattle rancher from denying right of sheep rancher to graze sheep on cattle rancher's
lands. Taylor Grazing Act, 43 U.S.C.A. sec. 315 et seq.
3. Waters and Water Courses.
In action by cattle rancher against sheep rancher for unlawful trespass by sheep rancher's herding of sheep
upon cattle rancher's land, evidence sustained finding that sheep rancher had not acquired a valid easement
by prescription to use waters situate on cattle rancher's privately owned lands or an easement across such
lands for access to such waters. NRS 568.300, subds. 1, 2.
4. Injunction.
Threat of continuing trespass by herding of sheep on lands of cattle rancher entitled cattle rancher to
injunctive relief against sheep rancher. NRS 568.300, subds. 1, 2.
5. Injunction; Trespass.
In action by cattle rancher for unlawful trespass by sheep rancher's herding of sheep upon cattle rancher's
land and for injunction against the threatened continuing trespass, evidence established that sheep were
herded upon land of cattle rancher and that they did not go upon such land without being herded. NRS
568.300, subds. 1, 2.
6. Trespass.
In action by cattle rancher against sheep rancher for damage resulting from herding of sheep upon cattle
rancher's land, evidence sustained finding restricting damages assessed to employment of additional riders
by cattle rancher to gather cattle that had left the land when sheep were herded upon it and the hauling of
hay to area for feed of saddle horses because sheep had consumed feed in field. NRS 568.300, subds. 1,
2.
OPINION
Appellant Lyle Cook, defendant below, is referred to as Cook. Holland Livestock Ranch, a
copartnership and the corporations named as Maremont-Holland Co., Bright-Holland Co.,
and Nemeroff-Holland Co., respondents herein and plaintiffs below, are referred to as
Holland.
Holland sued Cook under our old trespass statute, now NRS 568.300, for unlawful
trespass by Cook's herding of his sheep upon Holland's land in Washoe County, particularly
described in the complaint, and for an injunction against the threatened continuing trespass.
The statute involved provides simply: It shall be unlawful for any person to herd or graze
any livestock upon the lands of another without having first obtained the consent of the owner
of the lands so to do. Section 2 fixes liability for damages done by such trespassing
livestock. The complaint alleges the trespass to have occurred in the spring and fall of 1956
and the spring of 1957 by Cook's herding on Holland's lands of 2,000 head of sheep. The
complaint alleges Holland's demand that Cook desist from such trespassing, Cook's refusal,
and his threat to continue, the irreparable damage that will result, as well as the resulting
necessity for a multiplicity of suits, the inadequacy of continued and repeated suits for
damages, and the lack of an adequate remedy at law, otherwise than through an injunction.
The damage already suffered is asserted in detail at the acreage value of the feed alleged to
have been consumed on Holland's land by Cook's sheep, the loss of weight of a fixed number
of Holland's cattle sheeped off Holland's land, the expense of employing additional riders at
a fixed amount per day for a fixed period to gather Holland's livestock to return them to their
range, and the cost of hauling a fixed amount of hay at a fixed price to the property known as
Stone Corral to feed Holland's saddle horses because the pasture where the caviata1 was
usually held had been fed off by the sheep.
saddle horses because the pasture where the caviata
1
was usually held had been fed off by
the sheep. The aggregate of the damages thus prayed for was $23,336. The amount of the
proved damage as found by the court and fixed in the judgment was $646.
Cook's answer denied the trespass and denied damage, and set up the following affirmative
defenses:
1. It is first asserted that the court has no jurisdiction over the subject matter of the action
or to grant the relief demanded, for the reason that Holland's land, upon which Cook's sheep
are alleged to have been herded, and certain lands belonging to Cook (Holland's land as well
as Cook's land being unfenced) were all situate within federal grazing district C2N, Bureau of
Land Management, Department of Interior, and that both Cook and Holland had been granted
a license or permit to graze within this areaCook with his sheep and Holland with his
cattle; that the public domain in this area adjoins and surrounds Holland's land as described in
his complaint; that defendant's sheep could not graze in and upon the public domain
surrounding defendant's land without using the creek and springs therein and upon plaintiff's
lands (emphasis supplied); that Holland in the exercise of his license is grazing cattle upon
the public domain and upon Cook's unfenced private lands and water adjacent to said public
domain; That the Bureau of Land Management in granting plaintiff and defendant's grazing
licenses has jointly considered dependency by use of plaintiff and defendant's lands and water
by the use of the federal range for grazing and the relative dependency by use of each of the
base properties have been proportionate to the annual use actually and properly made of the
federal range under the plaintiff's and defendant's respective grazing licenses; that issuance
of an injunction would be control by the court of Cook's use of water on and near
plaintiff's lands contrary to the right of control of the public domain by the federal
government.
____________________

1
Probably a corruption of the Spanish cabalgada (cabalgata), a cavalcade. Each cowboy had his own
string of horses. The entire group of these formed the caviata. For other adaptations from the Spanish by
western cowboys see note 1 to Gattshall v. Sizemore, 71 Nev. 106, 281 P.2d 400.
of an injunction would be control by the court of Cook's use of water on and near plaintiff's
lands contrary to the right of control of the public domain by the federal government.
2. Here Cook repeats his allegations of the issuance of licenses or permits to both Cook
and Holland for grazing in the same areaCook with his sheep and Holland with his cattle,
and the ownership by both Cook and Holland of unfenced lands within the grazing area, and
that the Bureau of Land Management in granting such licenses or permits has jointly
considered dependency by use of plaintiff and defendant's lands and water, etc., as alleged in
the first affirmative defense, and that the defendant's sheep could not be grazed in and upon
the public domain surrounding defendant's land without using the creek and springs therein
and upon plaintiff's lands (emphasis supplied). It is then alleged that Cook and his
predecessors since 1917 have run 2,000 sheep on the public domain involved, both before
and after the enactment of the Taylor Grazing Act in 1934, 43 U.S.C.A., sec. 315 et seq.,
including the springs and creek crossing plaintiff's land and has a right to the use thereof;
that in order to exercise such rights and water his sheep at Rola Springs and the creek at
Stone Corral, he has continuously since 1917 utilized an easement and right of way over the
lands of plaintiff; that such use has been continuous and uninterrupted, open and visible,
adversely and of definite right; that he has a vested right of access to the waters at Stone
Corral and Rola Springs, and an easement for such right of access. Cook prays that Holland's
demand for injunctive relief be denied and that, on the contrary, Holland be restrained from
interfering with Cook's exercise of his right to go upon Holland's land with his (Cook's)
sheep.
[Headnote 1]
The case was first heard, by the court without a jury, on Holland's motion for a temporary
injunction. It was later tried on the merits, to the court without a jury, and the evidence taken
at the preliminary hearing was by stipulation made a part of the record of the trial.
The learned district judge signed a written decision in which he incorporated certain findings
of fact, and his judgment in favor of Holland for a permanent injunction and damages
followed the decision without further findings or conclusions. The district judge said: From
the very first it is and has been apparent to me that a trespass occurred on properties owned by
the plaintiffs. This is so clearly demonstrated by the record and by the admissions of the
defendant that discussion of the evidence on the point is unnecessary. In the trial court, as
here, Cook relied upon Ansolabehere v. LaBorde, 73 Nev. 93, 310 P.2d 842, as to which the
district judge, with entire justification remarked: I cannot believe that there has ever been
any idea on the part of our Supreme Court that it should be extended to include the right to
use private property without just compensation. Accordingly, I hold that Ansolabehere v.
LaBorde does not justify the defendant's trespassing upon the lands of plaintiffs. Attacking
this holding as error, Cook's opening brief asserts: The evidence is without dispute that Lyle
Cook in common with plaintiff, has a valid grazing license to graze his sheep upon all the
surrounding private lands of plaintiff in C2N grazing district in the area involved in this suit.
All that can be said as to this contention is that it is without foundation in law, in anything
that may be found in the Taylor Grazing Act or in any statement or inference made by this
court in Ansolabehere v. LaBorde. In that case we held that those features of the Nevada 1925
stockwatering act having to do with the control of grazing rights or privileges on the public
domain were superseded and rendered ineffective by the Taylor Grazing Act. No language
used in the opinion could possibly justify an inference that we held that the Taylor Grazing
Act authorized the Bureau of Land Management to grant a license or permit to one man to
graze livestock on the privately owned land of another without the latter's consent. See 43
Code of Federal Regulations sec. 161.6(c) p. 60 (Supp.). At the trial Cook produced officials
of the Bureau of Land Management (which now, in place of the Secretary of the Interior,
administers the provisions of the Taylor Grazing Act) and apparently sought to elicit from
them testimony to the effect that in granting licenses or permits to both Cook and Holland
in the same grazing area, recognizing the unfenced lands of each2 as one of the bases
and criteria for the issuance of such licenses, the bureau had licensed each to utilize the
unfenced lands of the other.
Grazing Act) and apparently sought to elicit from them testimony to the effect that in granting
licenses or permits to both Cook and Holland in the same grazing area, recognizing the
unfenced lands of each
2
as one of the bases and criteria for the issuance of such licenses, the
bureau had licensed each to utilize the unfenced lands of the other. These officials, however,
positively and repeatedly asserted that the licenses granted had to do exclusively with the
public domain and conveyed no right whatsoever to any licensee to use the private lands of
other persons. It could of course not be otherwise.
[Headnote 2]
3. Eventually the range rights in the district were adjudicated. Such adjudication is
accomplished by the Bureau of Land Management after a complete determination of the
extent of the ownership of base properties by the users of the public domain, their customary
use of the public domain, with fixed numbers of livestock over what is known as the base
period from 1929 to 1934, and a determination of the available feed on the public domain.
Such available feed is measured in animal unit months, referred to as AUM's, being the
amount of feed required by one cow (equivalent to the feed required for five sheep) in one
month.
3
The adjudication then (in most cases) reduces the rights of the public range users
proportionately to the amount of available feed on the public domain. All this was done on
unit C2N and Cook vehemently urges that the acceptance of this adjudication was not only an
acceptance by Cook of the use of his unfenced lands in the area by Holland's cattle but was an
acceptance by Holland of Cook's right to graze his sheep upon Holland's unfenced land in
the area and that Holland was thereby estopped from denying such rights asserted by
Cook.
____________________

2
District C2N is what is known as a land base district. In other words, the permit or license is granted to
graze stock on the public domain eight months of the year in consideration of the ownership by the applicant of
base properties upon which he can maintain his livestock for the remaining four months. This is in distinction to
certain other districts in which the ownership of stockwatering rights may be considered part of the owner's base
property.

3
This is related directly to the number of acres required to support one cow (or five sheep) throughout the
year. This varies greatly in different districts. Here it was fixed by the BLM officials at eight to ten acres.
his sheep upon Holland's unfenced land in the area and that Holland was thereby estopped
from denying such rights asserted by Cook. As above noted, grazing permits or licenses
granted by the Bureau of Land Management were restricted to the use of the public domain.
But it should be noted also that Cook throughout the trial and in his contentions here, as well
as before the trial court, deliberately and consistently ignored any distinction between the
herding of sheep on the unfenced lands of another and the ranging of cattle as free
commoners, on the lands of another. The distinction is so clear and has so often been
discussed, and the resulting rights and liabilities determined, in numerous decisions by this
and other courts as to preclude the necessity for discussion. See Pyramid L. & S. Co. v.
Pierce, 30 Nev. discussion. See Pyramid Land & Stock Co. v. Pierce, 30 Nev. 237, 95 P. 210,
215; Sweet v. Ballentine, 8 Idaho 431, 69 P. 995.
[Headnote 3]
4. Cook next contends that the evidence shows that he had acquired a valid easement by
prescription to use the waters situate on Holland's privately owned lands and an easement
across such lands for access to such waters. The trial court said with reference to this
contention: In this connection there is evidence that defendant or his predecessors have at
various times run sheep over and upon certain lands of the plaintiffs since 1917. The mere
fact of trespass does not give a right of user unless such is claimed adversely to the owner.
That the user was not hostile or under a claim of title, exclusive of any right as one's own,'
seems most evident when we consider certain portions of the testimony taken at the hearing
on the temporary injunction. He then referred to Cook's testimony on the motion for a
temporary injunction in which Cook denied any claim to utilize any of Mr. Holland's land in
this area, either under the Taylor Grazing permit or otherwise. When asked if he utilized
Holland's unfenced property, he answered: No, we do not, at least not intentionally. He
further testified that he instructed his herder to stay off anything that was Holland's land,
so far as we could determine."
stay off anything that was Holland's land, so far as we could determine. On
cross-examination when he was asked, Q. Mr. Cook, you testified, I believe, that you didn't
intend to trespass at all any more on this particular land; is that correct? A. Not any more, or
before, no. He further testified, Q. And you have no particular reason to go on Mr.
Holland's land either at Stone Corral or down here, for the purpose of getting water; is that
correct? A. That is correct. He then pointed out on the map various other watering places
available to him not on Holland's land. It is true that on the trial on the merits he testified to a
claim of right and to a continuous user, but there was considerable testimony contra. The trial
court held: Accordingly, I hold that adverse possession has not been proved, that defendant
has not gained a prescriptive right of way of plaintiffs' land. Although there is evidence to
the contrary, the record amply supports this finding, and this court will not disturb it.
[Headnote 4]
5. Cook urges that any loss to Holland was compensable in damages and that injunctive
relief was accordingly not available. The threat of continuing trespass, however, entitled the
plaintiff to injunctive relief. Phenix v. Frampton, 29 Nev. 306, 90 P. 2; Thrasher v. Hodge, 86
Mont. 218, 283 P. 219; see 60 A.L.R.2d 314, AnnotationInjunction against trespasses.
Especially is this the case where there is a threatened continuing trespass by the herding of
sheep on the lands of plaintiff. Defendant testified positively that he would continue his
operation, using Cook's land, unless enjoined by the court. Injunctive relief was in order.
[Headnote 5]
6. Appellant asserts that there is no evidence to the effect that he actively and
affirmatively herded his sheep or caused his sheep to be herded on Holland's land; that if they
went upon his land they did so without being herded thereon and that the trespass was,
accordingly, not actionable under the statute. This contention, however, is refuted by the
entire record. There can be no question of the fact that the sheep were herded upon the
land.
question of the fact that the sheep were herded upon the land.
[Headnote 6]
7. Appellant claims that there was no substantial evidence to support the judgment for
$646 damage. The learned trial judge restricted the damages assessed to the employment of
additional riders to gather the cattle that had left the land when the sheep were herded upon it,
and the hauling of hay to the Stone Corral area for feed of the caviata because the sheep had
consumed the feed in the field where the caviata was ordinarily held. The record supports this
finding.
The judgment and the order denying the motion for new trial are affirmed with costs. The
appeal from the order denying the motion to set aside the preliminary restraining order is
dismissed.
McNamee, C. J., and Merrill, J., concur.
____________
75 Nev. 389, 389 (1959) State v. Jernigan
THE STATE OF NEVADA, Appellant, v. THOMAS
P. JERNIGAN, Respondent.
No. 4072
September 22, 1959 343 P.2d 1015
Appeal from the First Judicial District Court, Lyon County; Frank B. Gregory, Judge,
Department No. 1.
Proceeding on defendant's motion to quash information. The lower court entered order
granting motion and discharging defendant from custody, and the State appealed. The
Supreme Court held that the statute providing that in all cases in which the defendant has not
had or waived a preliminary examination there shall be filed with the information the
affidavit of some credible person verifying the information upon the personal knowledge of
affiant that offense was committed means that an affidavit need not be filed whenever a
defendant has had a preliminary hearing or whenever he has waived his right to one.
has had a preliminary hearing or whenever he has waived his right to one.
Reversed.
Harvey Dickerson, Attorney General, of Carson City, and Wayne O. Jeppson, District
Attorney, Lyon County, for Appellant.
Richard L. Waters, Jr., of Carson City, for Respondent.
Indictment and Information.
The statute providing that in all cases in which the defendant has not had or waived a preliminary
examination there shall be filed with the information the affidavit of some credible person verifying the
information upon the personal knowledge of affiant that offense was committed means that an affidavit
need not be filed whenever a defendant has had a preliminary hearing or whenever he has waived his right
to one. NRS 173.080, subd. 3.
OPINION
Per Curiam:
This is an appeal by the state from an order granting defendant's motion to quash the
information and discharging him from custody.
On May 18, 1957 a complaint was filed in the Justice's Court, Smith Valley Township,
Lyon County, charging defendant with first degree burglary. Two days later, defendant signed
a written waiver of preliminary examination. The justice of the peace thereupon signed an
order of commitment which held him to answer to said charge, and fixed bail. On May 23,
1957 the district attorney filed in the district court an information charging defendant with
first degree burglary and with the information he filed the original complaint, warrant of
arrest, waiver of preliminary examination, order of commitment, and original commitment.
Defendant was arraigned in the district court and entered a plea of not guilty to the charge
contained in the information. On September 4, 1957, the date set for trial, both parties
announced they were ready for trial.
September 4, 1957, the date set for trial, both parties announced they were ready for trial.
After the jury was selected, defendant moved to quash the information on the ground that it
did not comply with NRS 173.080(3) in that it was not verified. The motion was granted and
defendant was discharged from custody.
NRS 173.080(3) reads as follows:
In all cases in which the defendant has not had or waived a preliminary examination there
shall be filed with the information the affidavit of some credible person verifying the
information upon the personal knowledge of affiant that the offense was committed.
The trial court construed this to mean that in all cases in which the defendant has not had a
preliminary examination or has waived a preliminary examination an affidavit must be filed.
This was error. If it were the intention of the legislature that an affidavit must be filed
whenever the defendant has not had a preliminary examination, such intention would have
been expressed without any reference to waiver.
We hold that subsection 3 of said statute when it requires an affidavit to be filed in all
cases in which the defendant has not had or waived a preliminary examination, means in all
cases in which the defendant has not (1) had or (2) waived a preliminary hearing, the word
not applying to both had and waived. Or stated affirmatively said subsection means
that an affidavit need not be filed whenever a defendant has had a preliminary hearing or
whenever he has waived his right to one.
Reversed.
____________
75 Nev. 392, 392 (1959) State v. Shaddock
THE STATE OF NEVADA, on Relation of its DEPARTMENT OF HIGHWAYS, Appellant,
v. GEORGE SHADDOCK and SARAH SHADDOCK, Husband and Wife, Respondents.
No. 4182
September 22, 1959 344 P.2d 191
Department No. 1.
Action to condemn two parcels of land for highway purposes. The trial court entered
judgment for the state, but assessed damages in an amount unsatisfactory to the state and it
appealed. The Supreme Court, McNamee, C. J., held that permitting landowners to inquire of
prospective jurors on voir dire whether or not fact that the federal government would pay 80
to 85 percent of the cost of acquiring the property condemned would influence them, was not
objectionable on theory such inquiry bore no relation to their qualifications, in view of fact
that prior to such query counsel for the state asked a juror whether he felt that because the
state is considered wealthy, it should pay more than is reasonable for land needed for
highways, and in view of fact that there was an absence of any showing of a clear or palpable
mistake in the verdict resulting from passion or prejudice.
Affirmed.
William E. Freedman, Deputy Attorney General, of Carson City, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondents.
1. Jury.
In highway condemnation proceeding, permitting landowners to inquire of prospective jurors on voir dire
whether or not fact that federal government would pay 80 to 85 percent of the cost of acquiring the
property condemned would influence them, was not objectionable on theory such inquiry bore no relation
to their qualifications, in view of fact that prior to such query counsel for the state asked a juror whether
he felt that because the state is considered wealthy, it should pay more than is
reasonable for land needed for highways, and in view of fact that there was an
absence of any showing of a clear or palpable mistake in the verdict resulting from
passion or prejudice.
whether he felt that because the state is considered wealthy, it should pay more than is reasonable for land
needed for highways, and in view of fact that there was an absence of any showing of a clear or palpable
mistake in the verdict resulting from passion or prejudice.
2. Evidence.
In highway condemnation proceeding, trial court did not err in failing to strike testimony of one of
landowners' expert witnesses who evaluated the property condemned, without considering effect of an
outstanding lease upon one of the parcels involved, in view of fact that his failure to take into consideration
a fact material to value, although it tended to lessen weight of his testimony, did not render it incompetent.
3. Evidence.
In highway condemnation proceeding, state could not claim prejudice based on trial court's failure to
strike testimony of an expert on the theory that such expert in placing a money valuation upon the
condemned property as a service station site based his testimony on speculation and conjecture, in view of
fact such witness, who was testifying on behalf of landowners, stated that income from use of the land as a
service station site would be an amount less than money valuation placed on the land as a service station
site by a witness for the state.
4. Eminent Domain.
Where report of an expert testifying for landowners in a highway condemnation proceeding contained no
evidence in addition to that which the witness gave orally, subject to cross-examination, no prejudice
would be deemed to have resulted from receiving in evidence written appraisal report of such witness, even
if some statements therein were based on hearsay.
5. Eminent Domain.
Where ground of objection to admission of a written report of an expert witness in a highway
condemnation proceeding was not given as a ground of objection at the trial, it would not be considered on
appeal.
6. Eminent Domain.
In determining value and just compensation, evidence of market value of the property taken is properly
received, although this does not preclude a court or jury from considering other elements that can fairly
enter into the question of value and which an ordinarily prudent businessman would consider before
forming judgment in making a purchase.
7. Eminent Domain.
Where landowners testified without objection with respect to rent received from condemned land, and
gave their opinion that just compensation for the land would be a sum sufficient to produce an annual
income equal to such rental, it was not error to permit a witness to testify relative to the value of an asset
capable of producing an annual income equal to the annual rental, for the purpose of assisting the jury in
determining the value of the land involved.
8. Evidence.
Where a witness in an eminent domain proceeding was chairman of the board of directors of a bank
which owned and operated realty, and such person had been associated with the bank for approximately
five years, and was a member of the trust department of the bank and chairman of its loan committee which
appraised properties and determined the amount of money that could be loaned on them, such person was
qualified to testify as an expert on value of the condemned property.
9. Eminent Domain.
In condemnation proceeding, evidence sustained jury's assessment of damages for the taking at $68,468.
10. Trial.
In eminent domain proceeding, failure to give certain requested instructions dealing with market value
was not error where their subject matter was adequately and correctly covered by instructions given.
11. Eminent Domain.
In eminent domain proceeding, failure to give requested instruction that income or productive value of an
actual or contemplated use is not a measure of compensation and that profits which might be derived from
devoting property to a particular purpose are not to be considered, was not error, in view of fact that
income from actual use is a relevant factor in determining value.
OPINION
By the Court, McNamee, C. J.:
This is an action to condemn for highway purposes two parcels of land located at the
intersection of Kietzke Lane and East Second Street near the City of Reno. Condemnation
was ordered as prayed for and the jury assessed damages to the defendants for the taking of
Parcel No. 1 at $68,000, and for the taking of Parcel No. 2 at $468. No damages were allowed
to defendants for the severance of Parcel No. 2. The plaintiff, appellant herein, has taken this
appeal from that part of the judgment assessing damages. Seven assignments of error are
relied upon for reversal.
[Headnote 1]
1. Appellant contends that the court erred in permitting respondents to inquire of
prospective jurors on voir dire whether or not the fact that the federal government would pay
80 to 85 percent of the cost of acquiring the property condemned would influence them;
that such an inquiry bore no relation to their qualifications to serve as jurors; and that the
question implies as being true something that possibly might not be true.
property condemned would influence them; that such an inquiry bore no relation to their
qualifications to serve as jurors; and that the question implies as being true something that
possibly might not be true.
Prior to this inquiry, counsel for appellant in his examination of one prospective juror had
asked: Do you feel because the state is considered wealthy that they should pay more than is
reasonable for land that they need for highways? This question certainly implies that the
state would be responsible for the entire payment, and yet counsel for appellant concedes that
federal participation in the payment is possible. If respondents' question referred to facts that
possibly were not true, likewise did appellant's. On the other hand either question could have
referred to a true statement of facts. Whether respondents' question bore any relation to the
particular juror's qualifications is immaterial under the circumstances here presented, because
in the absence of any showing of a clear and palpable mistake in the verdict resulting from
passion or prejudice it was within the court's discretion to permit respondents to refer to those
matters alluded to by the appellant theretofore.
Appellant has cited the case of St. Clair Housing Authority v. Quirin, 379 Ill. 52, 39
N.E.2d 363, wherein counsel for respondent in a condemnation proceeding were permitted to
question the jurors on their voir dire examination as to whether or not the fact that the United
States Government was interested in the project and as to whether or not the fact that it would
not cost the taxpayers of East St. Louis anything, would influence them in their verdict. The
Illinois Court held this to be prejudicial error requiring reversal. The present action is
distinguishable from said St. Clair case, because here there was no deliberate attempt to get
immaterial and prejudicial matter before the jury, but rather an attempt to negative
assumptions of fact theretofore improperly planted in the jurors' minds by the appellant.
[Headnote 2]
2. Appellant assigns as error the court's failure to strike the testimony of respondents'
expert witness White who evaluated the property condemned without considering the
effect of an outstanding lease upon Parcel No. 1.
At the time this action was commenced, Parcel No.
White who evaluated the property condemned without considering the effect of an
outstanding lease upon Parcel No. 1.
At the time this action was commenced, Parcel No. 1 was subject to a lease which
provided for a monthly rental of $300, and for options to renew for two additional terms of
ten years each, at the same rental. Notice of exercise of the first ten year option had been
given prior to trial.
In arriving at his opinion of the fair market value of Parcel No. 1, White assumed prudent
management of the property and took into consideration the highest and best use to which this
property could be put. He testified in detail what said use should be, and that the returns from
such highest and best use would amount to $500 a month.
On cross-examination, White admitted that he did not take into consideration the 20-year
lease limiting rentals to $300 a month, in arriving at his valuation. The jury was therefore
fully aware that this was not one of the factors which contributed to the determination of his
valuation. That his determination failed to take into consideration a fact material to value
would tend to lessen the weight of his testimony, not to render it incompetent.
1
The motion
to strike White's testimony on this ground was properly denied. Accord: Southern Pac. R. Co.
v. San Francisco Sav. Union, 146 Cal. 290, 79 P. 961, 70 L.R.A. 221; City of Stockton v.
Ellingwood, 96 Cal.App. 708, 275 P. 228; Tyson Creek R. Co. v. Empire Mill Co., 31 Idaho
580, 174 P. 1004; City of Ely v. Conan, 91 Minn. 127, 97 N.W. 737; Cities Service Gas Co.
v. Peak, 227 Mo.App. 515, 54 S.W.2d 482.
[Headnote 3]
3. Appellant asserts as another reason why the testimony of White should have been
stricken, that White in placing a money valuation upon the condemned property as a service
station site based his testimony upon speculation and conjecture and attempted to show
value in use.
____________________

1
The record discloses that appellant's expert witness Olsen in giving his opinion of the value of this parcel
likewise failed to consider the effect of the outstanding lease in basing his determination on the highest and most
profitable use of the premises.
as a service station site based his testimony upon speculation and conjecture and attempted to
show value in use.
Witness White had testified that the highest and best use of a portion of Parcel No. 1 was
as a service station site. Whether it was error then to permit him to give a valuation of the
condemned land based on speculation or conjecture as to what income could be expected
from such use is immaterial under the circumstances of this case for the following reason:
In White's opinion the income from such use as a service station site would be $200 a
month. On the other hand, appellant's expert witness Olsen, in his testimony placed a money
valuation on this specific portion at $300 a month as a service station site. White's testimony
in this respect was therefore beneficial to appellant and appellant cannot now claim prejudice
therefrom.
[Headnote 4]
4. At the conclusion of White's testimony, the trial court over the objection of appellant
received in evidence White's written appraisal report which contained a summary of his
methods of computing his valuations of the two parcels of land. Appellant claims this to be
error because the report was hearsay and its admission tended to emphasize unduly White's
testimony. At the time of trial appellant's two objections to the admission of this report were
(1) that the report was hearsay and (2) that it had not taken into consideration the existing
lease against the property. This second objection has been considered under the second
assignment of error, supra, and will now be disregarded.
There is no merit to appellant's objection that this report was hearsay. Even conceding
some statements were based on hearsay, the report contains no evidence in addition to that
which White had already given orally, subject to cross-examination; consequently no
prejudice could result. Furthermore it was offered and received in evidence solely as an aid to
the court and jury in understanding the appraisal processes. For the same reason the written
appraisal report of an appellant's expert witness Chambers was received in evidence, and
without objection by appellant.
same reason the written appraisal report of an appellant's expert witness Chambers was
received in evidence, and without objection by appellant.
[Headnote 5]
Appellant's objection that the admission of the White report might tend to emphasize
unduly White's oral testimony was not given as a ground of objection at the trial and therefore
will not be considered at this time.
5. Appellant next contends that the court erred in permitting respondent's witness Ligon to
express his opinion as to what sum of money would be required to produce the income
presently received by respondents from the condemned property, because such testimony
constituted an incompetent digression from the accepted measure of just compensation,
which is the market value of the property condemned.
NRS 37.110 requires the jury to ascertain and assess the value of the condemned
property. Art. 1, sec. 8, Nevada Constitution, provides that private property shall not be taken
for public use without just compensation therefor.
[Headnote 6]
In determining value and just compensation, evidence of the market value of the property
taken is properly received. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236.
This is conceded by both appellant and respondents. That this is so does not preclude the
court or jury from considering other elements that can fairly enter into the question of value
and which an ordinarily prudent business man would consider before forming judgment in
making a purchase. In re Bainbridge-Unadilla, Part 1, State Highway No. 5013, Chenango
County, 168 Misc. 407, 5 N.Y.S.2d 988. Thus it is proper to consider the rental value of the
property condemned, as well as the actual rent which the property produces, because such
elements of value are material in the determination of just compensation for the land taken.
Welch v. Tennessee Valley Authority, 6 Cir., 108 F.2d 95; State ex rel. McKelvey v. Styner,
58 Ida. 233, 72 P.2d 699; cf. Virginia and Truckee R.R. Co. v. Henry, 8 Nev. 165.
[Headnote 7]
Respondents Shaddock testified without objection with respect to the rent received from
the condemned land to wit $3,600 per year, and gave their opinion that just compensation for
the land would be a sum sufficient to produce an annual income of $3,600 per year. With
such evidence in the record it was not error to permit Ligon to testify relative to the value of
an asset capable of producing an annual income of $3,600. Cf. Saunders v. State, 70 Nev.
480, 273 P.2d 970. Such evidence was given by an expert and was solely for the purpose of
assisting the jury in determining the value of this asset. Appellant's witnesses themselves
capitalized the net income in arriving at market value from the income approach, using a
different capitalization rate. It was within the province of the jury to decide what rate if any to
use after considering all of the evidence relating thereto and the reasons given for the various
conclusions.
[Headnote 8]
At the trial the objection to Ligon's testimony was in regard to the competency of this
witness to testify in this particular matter. If appellant meant by this that Ligon had not
qualified as an expert witness appellant will find no support from the record. The evidence
discloses that Ligon was Chairman of the Board of Directors of the Security Bank of Reno,
which owns and operates real estate properties; that he had been associated with said bank
since 1954; that he was a member of the Trust Department of said bank and chairman of its
loan committee which appraised properties and determined the amount of money that should
be loaned on them. With this evidence we are unable to say that the trial court erred in
determining Ligon to be qualified to testify as an expert.
[Headnote 9]
6. We have considered the testimony of all of the witnesses in the case and do not deem it
necessary to enlarge this opinion by referring further thereto. Appellant's view to the contrary,
we feel that in claiming that the trial court erred in denying appellant's motion for a new trial
on the ground that there was insufficient evidence to support the verdict is merely a
complaint that the jury should have followed the opinions of its witnesses rather than
those of respondents.
for a new trial on the ground that there was insufficient evidence to support the verdict is
merely a complaint that the jury should have followed the opinions of its witnesses rather
than those of respondents. Our conclusion is consistent with what was said by this court in the
condemnation case of State ex rel. Department of Highways v. Pinson, 66 Nev. 227, 207 P.2d
1105, 1108: All proper elements offered by any of the parties were apparently taken into
consideration, and the findings as to value and damage find ample support in the evidence.
We are, in effect, asked to say that the trial court was in error in accepting the testimony of
respondent's witnesses rather than the testimony of appellants and their witnesses. This we
cannot do.
[Headnote 10]
7. Appellant's final contention of error is that the court erred in refusing to give its
proposed instructions A, B, C, and D. These instructions, except for B, deal with market
value, and their subject matter was adequately and correctly covered by the instructions given
to which no objections were made.
[Headnote 11]
Failure to give proposed instruction B
2
was proper. The first sentence thereof is confusing
and does not state the law. As stated above under assignment of error No. 5, income from
actual use is a relevant factor in determining value.
There being no prejudicial error, the judgment is affirmed.
Merrill and Badt, JJ., concur.
____________________

2
Instruction B: The income or productive value of an actual or contemplated use is not a measure of
compensation. Profits which might be derived from devoting property to a particular purpose depend so much on
conditions that cannot be foreseen that they have no competency, and are not to be considered by you.
____________
75 Nev. 401, 401 (1959) European Motors v. Oden
EUROPEAN MOTORS, Ltd., Appellant, v.
ELSWORTH R. ODEN, Respondent.
No. 4170
September 28, 1959 344 P.2d 195
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge, Department No. 2.
Action by president of corporation for salary allegedly due from corporation under express
contract. The trial court rendered judgment for president, and corporation appealed. The
Supreme Court, Merrill, J., held that where president's services as general manager were
accepted by corporation with full knowledge on part of all stockholders that such services
were rendered under an express understanding that salary was payable, acceptance of benefits
of services amounted to implied ratification by corporation of contract for payment of salary
entered into prior to incorporation.
Judgment affirmed.
Morgan Anglim, of Reno, for Appellant.
Ernest S. Brown, of Reno, for Respondent.
1. Corporations.
In action brought by former president of corporation against corporation for salary allegedly due under
express contract, question whether a contract existed between parties under which salary was due to
president as claimed by him was for jury.
2. Corporations.
Where president's services as general manager were accepted by corporation with full knowledge on part
of all stockholders that such services were rendered under an express understanding that salary was
payable, acceptance of benefits of services amounted to implied ratification by corporation of contract for
payment of salary entered into prior to incorporation.
3. Corporations.
Where corporation president claimed that sum of $19,200 was due to him for services rendered pursuant
to contract with corporation and principal stockholder of corporation contended that president spent no
more than one-third of his time on job as general manager, fact that jury verdict was for one-third of
amount claimed by president did not aggrieve corporation and did not require
reversal on basis that jury believed principal stockholder's testimony and converted
suit into one in quantum meruit without any evidence whatsoever as to reasonable
value of president's services.
for one-third of amount claimed by president did not aggrieve corporation and did not require reversal on
basis that jury believed principal stockholder's testimony and converted suit into one in quantum meruit
without any evidence whatsoever as to reasonable value of president's services.
OPINION
By the Court, Merrill, J.:
This action is brought by Oden to recover salary allegedly due from European Motors, a
corporation, under an express contract. From judgment for $6,400, pursuant to jury verdict,
European Motors has taken this appeal. Its principal contention is that the record is devoid of
evidence from which the jury might have found a contract with it to have existed.
[Headnote 1]
This contention we must reject. Although flatly contradicted, there was evidence to
support a jury determination that a contract existed between the parties under which salary
was due to Oden, as claimed by him, from October 1, 1953 to October 1, 1955.
European Motors during the period in question was engaged in Reno in the business of
selling and servicing foreign cars. It was incorporated on October 5, 1953. Oden held 44
percent of the stock. Controlling stockholder, with a 55 percent interest, was Oden's then
wife. One percent of the stock was held by one Holland. On January 8, 1954 the organization
meeting of stockholders was held. Oden was elected president, Holland vice president, and
Mrs. Oden secretary-treasurer. The minutes of this meeting expressly provide that these
officers, as such, would serve without salary. The minutes are silent as to the employment of
Oden in any capacity.
Oden's testimony was to the following effect. For many years prior to the period in
question he had engaged in the business of selling and servicing bicycles, motorcycles and
motor scooters under the name of Oden Cycle Works in Reno. More recently, in conjunction
with his cycle works, he had taken over the agency for the sale of certain foreign cars. In the
fall of 1953 Oden and his wife decided to separate the foreign car agency from the cycle
works and, to accommodate the car business, to take over a lease on separate premises
then held by Holland.
his wife decided to separate the foreign car agency from the cycle works and, to
accommodate the car business, to take over a lease on separate premises then held by
Holland. An assignment of the lease was secured. In September 1953, shortly before
incorporation of the car business, Oden and his wife had a conversation by which it was
agreed that Oden should serve as general manager of the car business; that since it would then
become necessary for him to employ a manager for the cycle works, Oden should receive
from the car company a salary of $750 a month plus an expense allowance of $100 a month;
that Mrs. Oden should serve as office manager and bookkeeper; that since she did not then
need any salary, she should draw salary at such time as the business could pay it, and that it
should be comparable to the salary she had been receiving as an employee of a dress shop.
The company went into business at its new location October 1, 1953, a few days prior to
formal incorporation. Thereafter, for the two years in question, Oden served as general
manager, devoting 90 percent of his time to the job and performing substantial services over
and above those normally expected of a corporation president: as sales manager, shop
manager, and manager of the parts department.
Oden also testified on trial that the pre-incorporation contract had been expressly ratified
by corporate action at the first meeting of stockholders. A deposition given by him at an
earlier date would seem to dispute this, however, and, as already mentioned, the minutes do
not show that any such action was taken.
[Headnote 2]
The corporation contends that, in the absence of proof of corporate ratification, this
testimony is wholly insufficient to show any corporate obligation under the contract in
question. This we must reject. Oden's testimony (which we must assume the jury accepted)
demonstrates that his services as general manager were accepted by the corporation with full
knowledge on the part of all stockholders that such services were rendered under an express
understanding that salary was payable. Acceptance of the benefit of the services, under these
circumstances, amounted to implied ratification by the corporation of the contract
entered into prior to incorporation.
circumstances, amounted to implied ratification by the corporation of the contract entered
into prior to incorporation. Federal Mining and Engineering Co. v. Pollak, 59 Nev. 145, 85
P.2d 1008; Rocky Mountain Powder Co. v. Hamlin, 73 Nev. 87, 310 P.2d 404; 13 Am.Jur.,
Corporations, sec. 109, p. 250, sec. 982, p. 934.
The corporation next contends that Oden's testimony was so thoroughly impeached that it
cannot be regarded as support for the jury verdict. This, too, we must reject. Although his
testimony was thoroughly impeached as to express corporate ratification, we cannot say that
such was the case as to implied ratification. Financial reports of the corporation (signed by
Oden as president, although prepared by accountants working with Mrs. Oden as bookkeeper)
do not reflect any financial obligation to Oden. Other than this, as to the pre-incorporation
conversation with Mrs. Oden, we find simply the word of one balanced against the word of
the other.
The corporation contends that the probabilities support the testimony of Mrs. Oden. It
points out that the Odens are now divorced; that during the period in question they were
married and were living together as husband and wife. It alleges that any sums received from
the business, whether as salary or as corporation dividends, would therefore have been shared
and asserts that an agreement for salary in any express amount, under these circumstances, is
wholly improbable.
We might well be inclined to agree were we the finders of fact. The jury, however, was
unpersuaded by this approach to the problem of credibility. The suggestion that Mrs. Oden is
unjustly prejudiced by this judgment, in the light of her divorce, poses a problem which is
beyond the scope of this action. She is not a party to the action, and whether she has any right
to share in the judgment as a community asset is not before the court.
[Headnote 3]
The corporation contends that the jury verdict itself demonstrates that no express contract
was found to exist. Oden's suit was for salary in the sum of $19,200 pursuant to contract. The
jury verdict was for one-third of this.
of this. Mrs. Oden's testimony and that of another witness (contrary to Oden's) was that Oden
spent no more than one-third of his time on his job as general manager. The corporation
concludes that the jury believed Mrs. Oden's testimony as to the amount of time spent, and
converted the suit into one in quantum meruit without any evidence whatsoever as to the
reasonable value of Oden's services.
However, in the absence of special interrogatories, it is always futile to speculate upon the
basis of what would appear to be a compromise verdict. Here there was evidence to support a
finding of express contract. The court's instructions upon this subject were clear and
comprehensive. If the jury has failed to award in full the salary provided by contract, the
corporation certainly is not aggrieved.
Affirmed.
McNamee, C. J., and Badt, J., concur.
____________
75 Nev. 405, 405 (1959) Parkinson v. Winniman
REED PARKINSON, Appellant, v. LETTYE E.
WINNIMAN and HELENA NEAL, Respondents.
No. 4179
October 12, 1959 344 P.2d 677
Department No. 1.
Action of trespass for going on private road on landowners' property after being instructed
not to do so. The trial court entered judgment awarding landowners damages of $1,235 and
granting permanent injunction restraining defendant from trespass, and defendant appealed.
The Supreme Court, McNamee, C. J., held that evidence supported finding that road on
landowners' property was private road, that any earlier road on the property had been
abandoned before the private road was built, that any use of earlier road had been casual
or permissive, that defendant had failed to establish existence of any public road
traversing the land, and that defendant had no right to go upon lands after being
instructed not to do so, and award of exemplary damages for intentional trespass was
proper.
road was built, that any use of earlier road had been casual or permissive, that defendant had
failed to establish existence of any public road traversing the land, and that defendant had no
right to go upon lands after being instructed not to do so, and award of exemplary damages
for intentional trespass was proper.
Affirmed.
R. S. Flanary, of Sparks, for Appellant.
Springer, McKissick & Hug, of Reno, for Respondents.
1. Trespass.
In action of trespass, evidence supported finding that road on landowners' property was private road, that
any earlier road on the property had been abandoned before the private road was built, that any use of
earlier road had been casual or permissive, that defendant had failed to establish existence of any public
road traversing the land, and that defendant had no right to go upon lands after being instructed not to do
so.
2. Trespass.
Award of nominal damages to landowners against defendant for trespass by going on private road on
landowners' property after being instructed not to do so was proper.
3. Trespass.
In action of trespass, evidence supported award against defendant, who had gone on landowners' property
after being instructed not to do so, of special damages and of damages for mental anguish caused by
intentional harassment of one of the landowners.
4. Trespass.
Award of exemplary damages for intentional trespass was proper.
5. Injunction.
In action of trespass, evidence of threats by defendant to continue his trespassing unless restrained by law
justified permanent injunction.
OPINION
This is an action of trespass brought by respondents against appellant wherein the trial
court entered judgment awarding respondents damages in the sum of $1,235, and in addition
thereto granted a permanent injunction restraining the appellant from trespass.
$1,235, and in addition thereto granted a permanent injunction restraining the appellant from
trespass.
Appeal is from said judgment.
Respondents are the owners of certain land located in the south half of section 30, T. 18
N., R. 20 E., Washoe County, which they and their predecessors in interest have held in
ownership since the land was homesteaded in 1927. Prior thereto the land was part of the
public domain.
In 1954 appellant located and otherwise acquired certain mining claims in the north half of
said section 30, which then likewise was a part of the public domain.
[Headnote 1]
At the time appellant acquired his said interests there was a road leading north from the
Mt. Rose highway to respondents' home which was entirely on their property, and which had
been built as a private road for respondents' predecessors in interest in 1933 by the state
highway department in consideration of its taking a portion of their land for the Mt. Rose
highway.
Appellant contends that this was a public road over public land which went not only to
respondents' home but beyond and into the north half of section 30, that it was in existence
prior to 1927 when respondents' land was homesteaded, that the passing of this public land
into private ownership (to respondents' predecessors in interest) did not affect the highway
right of way theretofore acquired by the public, and that therefore he could not be considered
a trespasser in using a public road.
Evidence of witnesses was conflicting as to whether any public road existed prior to 1927.
Official maps in evidence as respondents' exhibits show that prior to 1933 there had been a
road going across part of the south half of section 30 but only as far as the spot where
respondents' home is now located but which, except for a few feet, followed an entirely
different course. A map in evidence as appellant's exhibit shows a road going across
respondents' property and into the north half of section 30.
With this state of the record the trial court found that the road in question was at all times a
private road, that any earlier road had been abandoned before the time the present road was
built, that any use of an earlier road had been casual or permissive, that the appellant failed to
establish the existence of any public road traversing the said lands owned by respondents
(other than the Mt. Rose highway), and that, therefore, appellant had no right to go upon the
said lands of respondents after being instructed not to do so.
We hold there is ample evidence to support the court's findings in this regard.
[Headnote 2]
Appellant contends that the evidence does not show any damage by appellant to the lands
of respondents. Nominal damages only were awarded for the trespass, and inasmuch as the
evidence supports a trespass, this was not improper. 52 Am.Jur., Trespass, sec. 47.
[Headnotes 3, 4]
Appellant further contends that the evidence was insufficient to support the judgment.
With respect to the special damages allowed, and the damages for mental anguish caused by
the intentional harassment of one of the respondents, there was ample evidence which was
uncontradicted to support the same. The award of exemplary damages was proper upon proof
of intentional trespass. Gerlach Livestock Co. v. Laxalt, 52 Nev. 191, 284 P. 310.
[Headnote 5]
Evidence of threats by appellant to continue his trespassing unless restrained by law
justified the permanent injunction. Cook v. Maremont-Holland Co., 75 Nev. 380, 344 P.2d
198.
Affirmed.
Badt, J., concurring.
Merrill, J., was present during the oral argument herein and participated in the
consideration and disposition of this case, but resigned as Justice prior to the filing of this
opinion.
____________
75 Nev. 409, 409 (1959) Taylor v. Barringer
RUSSELL TAYLOR, as Guardian of the Person and Estate of CARLITA RAY, an Infant,
Appellant, v. ROBERT E. BARRINGER, L. O. HAWKINS and HOWARD W. CANNON;
IDA ANGELOT RAY, CARL REED, and RALPH STEINER, as Trustees of the Estate of
CARL RAY, Deceased, et al., Respondents.
No. 4200
October 13, 1959 344 P.2d 676
Department No. 2.
Action for a declaratory judgment determining rights and interests of various parties to
certain land. From an order of the lower court dismissing the action as to certain of
defendants, the plaintiff appealed. The Supreme Court held that a motion to dismiss appeal on
ground that complaint fails to state a claim against the movant goes to the merits of the appeal
and is not a proper ground for dismissal of the appeal.
On motion to dismiss appeal, motion denied.
E. M. Gunderson, of Las Vegas, for Appellant.
Hawkins and Cannon, of Las Vegas, for Respondents Barringer, Hawkins and Cannon.
A motion to dismiss appeal on ground that complaint fails to state a claim against the movant goes to the
merits of the appeal and is not a proper ground for dismissal of the appeal.
In action for a declaratory judgment determining rights and interests of various parties to certain land,
order signed by judge dismissing the action as to several defendants was in effect a final judgment although
entitled an order, from which an appeal could be taken. NRCP 72(b)(1).
OPINION
(On Motion to Dismiss)
Per Curiam:
Plaintiff (appellant herein) filed a complaint in the court below for a declaratory judgment
to determine the rights and interests of the various parties to certain land.
75 Nev. 409, 410 (1959) Taylor v. Barringer
rights and interests of the various parties to certain land. A motion was made in that court to
dismiss the action with reference to defendants Barringer, Hawkins, and Cannon upon the
ground that the complaint failed to state any claim against the moving defendants. Appeal is
taken from the order dismissing the action as to said defendants.
After the filing of the record on appeal herein, respondents Barringer, Hawkins, and
Cannon filed a motion to dismiss the appeal upon the following grounds:
[Headnote 1]
1. That the complaint fails to state a claim against the said respondents. This goes to the
merits of the appeal and is not a proper ground for dismissal of the appeal.
2. That the record on appeal fails to allege any facts giving the appellant the right to have
the appeal heard by this court in that it discloses that the appellant is not an aggrieved person.
This, however, is predicated on the ground that the complaint fails to state a claim, which we
have disposed of under the preceding paragraph.
[Headnote 2]
3. In their memorandum of points and authorities respondents for the first time urge a
third ground for dismissing the appeal, to wit, that the order appealed from was not an
appealable order as defined in NRCP, Rule 72(b). True it is that Rule 72(b)(1) permits an
appeal from a final judgment and says nothing about an order of dismissal; nevertheless, the
formal order dismissing the action as to defendants Barringer, Hawkins, and Cannon was
signed by the judge and filed in the action and is in effect a final judgment although entitled
an order. See Markert v. Swift & Co., 2 Cir., 173 F.2d 517, 519, where the court held that
under Rule 54(a) a judgment includes any order from which an appeal lies; had the court
here, after entering an order, gone on to enter a judgment, the latter would have been
superfluous.
The motion to dismiss the appeal is denied.
____________
75 Nev. 411, 411 (1959) Weeks v. Weeks
RUSSEL S. WEEKS, Appellant, v.
DOROTHY C. WEEKS, Respondent.
No. 4183
October 19, 1959 345 P.2d 228
Appeal from the Fourth Judicial District Court, Elko County; Harry M. Watson, Presiding
Judge.
Action by wife for divorce. From adverse judgment of the lower court the husband
appealed. The Supreme Court, McNamee, C. J., held that where Supreme Court, after finding
that securities were owned by husband and wife as joint tenants with right of survivorship and
that they were not sole property of the husband, as found by trial court, remanded the case to
give trial court an opportunity to redetermine division of community property if it was so
inclined to do, trial court improperly awarded wife interest on delayed or deferred payments
due or to become due under original decree of divorce on basis of existing record alone.
Vaughan and Hull, of Elko, and Pike & McLaughlin, of Reno, for Appellant.
Ralph L. Denton, of Las Vegas, and Bible, McDonald and Jensen, of Reno, for
Respondent.
1. Divorce.
Where Supreme Court on review of divorce judgment awarding securities worth approximately $120,000
to husband as his sole and separate property reversed and remanded with instructions to modify judgment
by providing that securities were owned by parties as joint tenants with right of survivorship and for further
proceedings, fact that trial judge who heard case originally disqualified himself and that another judge who
had not heard any of testimony considered testimony and other evidence solely from transcript of original
trial was not prejudicial to husband, who did not request a new trial on matter of distribution of community
property and who made no suggestion that any further testimony or other evidence be presented for
consideration. NRS 125.150, subd. 1.
2. Divorce.
In action for divorce brought by wife, wherein Supreme Court on appeal held that securities worth
approximately $120,000 were owned by husband and wife as joint tenants with right of survivorship
and not as tenants in common, equal division of community property was not
improper.
75 Nev. 411, 412 (1959) Weeks v. Weeks
with right of survivorship and not as tenants in common, equal division of community property was not
improper. NRS 125.150, subd. 1.
3. Divorce.
Where Supreme Court, after finding that securities were owned by husband and wife as joint tenants with
right of survivorship and that they were not sole property of husband, as found by trial court, remanded
case to give trial court an opportunity to redetermine division of community property if it was inclined to
do so, trial court improperly awarded wife interest on delayed or deferred payments due or to become due
under original decree of divorce on basis of existing record alone.
OPINION
This is an action for divorce which originally came before this court for the purpose of
reviewing the judgment of the trial court with respect to the division of property. The
judgment was reversed with regard to the ownership of securities worth approximately
$120,000 which had been awarded to the husband as his sole and separate property. At that
time this court said:
Reversed and remanded with instruction to modify the judgment by providing that the
securities therein listed are owned by the parties * * * as joint tenants with right of
survivorship and not as tenants in common, and for further proceedings in accordance with
this opinion.
Prior to this concluding paragraph the opinion contained the following:
In remanding this case, a further observation is necessary. We have statutory provisions
to guide the court in making disposition of community property of the parties. No such
disposition may be made by us in the first instance. Our holding that the securities are the
joint property of the parties may well disturb the factual situation upon which the trial court
relied in making its final disposition of the property of the parties. On remand, therefore, the
trial court must be left at liberty to make a final order for such disposition, after such hearing
and upon such notice to the parties as may appear proper."
75 Nev. 411, 413 (1959) Weeks v. Weeks
after such hearing and upon such notice to the parties as may appear proper. See Weeks v.
Weeks, 72 Nev. 268, 302 P.2d 750.
This ruling which gave the wife approximately $60,000 worth of property theretofore, by
the trial court, awarded to the husband, made the wife that much richer while at the same time
it made the husband that much poorer. This changed situation of the parties would therefore
under our statute
1
be a matter for the trial court to consider in its disposition of the
community property, and it obviously was a matter not considered or contemplated by the
trial court in its original decision.
The condition in which they will be left by the divorce is materially changed by the
reversal and it then became the duty of the trial court to take into consideration the new
situation of the parties in order to determine whether its original disposition of the community
property was proper.
Of course it was contemplated that the reconsideration would be made by Judge Wines,
the judge who had tried the case.
On remand Judge Wines made an order assigning the case to Judge Watson. The wife then
filed a motion for the court to conform its findings, conclusions, and judgment and decree to
the decision of the Supreme Court. The husband also filed a motion for the court to make a
final order of disposition of the community property of the parties, and in making said order,
to redistribute the said community property, on the ground that the factual situation upon
which the trial court relied in distributing the community property in the first instance had
been changed by the decision of the Supreme Court.
Prior to the argument on these motions, counsel for the husband, appellant herein, orally
made an "objection to the procedure wherein a judge, other than the trial judge who
heard the evidence originally is permitted to hear and rule upon defendant's motion to
redistribute."
____________________

1
NRS 125.150(1) In granting a divorce, the court may award such alimony to the wife and shall make such
disposition of the community property of the parties as shall appear just and equitable, having regard to the
respective merits of the parties and to the condition in which they will be left by such divorce, and to the party
through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the
children.
75 Nev. 411, 414 (1959) Weeks v. Weeks
the husband, appellant herein, orally made an objection to the procedure wherein a judge,
other than the trial judge who heard the evidence originally is permitted to hear and rule upon
defendant's motion to redistribute. This objection was overruled.
After hearing the said motions of the respective parties, and considering the transcript of
the evidence in the original trial, Judge Watson entered a judgment to the following effect:
The original judgment and decree was modified to provide (1) that the securities were the
property of the parties as joint tenants with right of survivorship and not as tenants in
common; and (2) that appellant pay respondent interest at the rate of 6 percent per annum on
the deferred payments due or to become due under the original judgment which was silent as
to interest, with such interest to be a lien as in the case of the principal sum.
Appeal is now before us on this latter judgment.
Appellant contends that it was error (1) for Judge Wines to disqualify himself after
remittitur from the Supreme Court, and (2) to assign the case for further proceedings to a
judge who had not heard the testimony.
We are of the opinion that this contention of appellant cannot be sustained in view of our
expressions in State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 283, 200 P.2d 698, wherein we
said: There arises from the language of the rule the necessary inference that a judge
empowered to hear a case has the power, in his discretion, to request another judge to assume
jurisdiction of such cause. Such request, in the present case, appears by assignment on the
minutes of the court. Under the rule mentioned, the judge so assigning a case is not required
to state the reasons therefor.
[Headnote 1]
The fact that Judge Wines had heard the case originally, and that Judge Watson had not
heard any of the testimony but considered it and the other evidence solely from the transcript
of the original trial was not prejudicial under the existing circumstances. Appellant did not
request a new trial on the matter of the distribution of the community property, and he
proceeded to present his said motion for redistribution, referring at length to the evidence
in the transcript, and made no suggestion of any kind that further testimony or other
evidence be presented for consideration.
75 Nev. 411, 415 (1959) Weeks v. Weeks
not request a new trial on the matter of the distribution of the community property, and he
proceeded to present his said motion for redistribution, referring at length to the evidence in
the transcript, and made no suggestion of any kind that further testimony or other evidence be
presented for consideration. He gave no indication that there had been any change of
conditions with respect to the property or the situation of the parties since the time the case
was tried some five years before. The overruling of his objection to the procedure wherein a
judge other than the trial judge who heard the evidence originally is permitted to hear and rule
upon defendant's motion to redistribute was not erroneous under such circumstances.
The appellant's said motion as presented and his argument with reference thereto were
based entirely upon the proposition that by reason of this court's ruling the husband was
poorer and the wife richer as hereinbefore related; that therefore there should be a
redistribution of the community property. Judge Watson's decision after considering this
matter in detail recited: We think that it would not and should not have been held that
because plaintiff was the owner of half of the securities by gift that her distributive share of
the value of the [community] property should be reduced by the amount of the value of the
securities. This would ignore the nature of the acquisition of the ranching property and
through whom the property was acquired as revealed by the transcript. In other words Judge
Watson concluded that the changed status of the securities should not alter the equal
distribution of the community property.
[Headnote 2]
Equal distribution of the community property appears to be the rule in most cases.
(Assignment of the husband's separate property to the wife for her support does not enter the
case.) In our opinion the equal distribution of the community property in this case was proper.
It does not offend any of the statutory specifications under which a court is required to make a
distribution of the community property "as shall appear just and equitable, having regard
to the respective merits of the parties and to the condition in which they will be left by
such divorce, and to the party through whom the property was acquired."
75 Nev. 411, 416 (1959) Weeks v. Weeks
tion of the community property as shall appear just and equitable, having regard to the
respective merits of the parties and to the condition in which they will be left by such divorce,
and to the party through whom the property was acquired.
[Headnote 3]
It must be apparent to anyone reading our former opinion herein, that this court felt,
because it caused property to be taken from the husband and given to the wife after the trial
court's determination of the division of the community property, that the trial court might
want to redetermine such division in order to give some kind of compensation to the husband
for this loss. We did not order the trial court to give any such relief, we merely wanted the
trial court to feel free to make a redetermination if it was so inclined. It certainly was not
contemplated that the trial court in view of the changed situation of the parties would from
the existing record alone further increase the husband's obligations to his wife. In the award
of interest, this was the result.
The judgment is modified by deleting the requirement that appellant pay respondent
interest on any delayed or deferred payments due or to become due under the original decree
of divorce entered on October 14, 1955, except that in the case of any delinquent payment
due or to become due thereunder, such delinquent payment shall bear interest at 7 percent per
annum from the date of delinquency.
As so modified, the judgment appealed from is affirmed. Respondent to recover her costs.
Badt, J., and Hanna, D. J., concur.
Pike, J., having disqualified himself, the Governor designated Honorable Richard R.
Hanna, Judge of the First Judicial District Court, to sit in his place and stead.
____________
75 Nev. 417, 417 (1959) Universal C. I. T. Credit Corp. v. Bonnett
UNIVERSAL C. I. T. CREDIT CORPORATION, a Maryland Corporation, Appellant, v.
SPARKS E. BONNETT, dba Bonnetts Service Center, Respondent.
No. 4184
October 19, 1959 344 P.2d 941
Department No. 1.
Action presenting question of priority of a garage lien over a conditional seller's lien. From
adverse judgment of the lower court, the vendor under a conditional sales contract appealed.
The Supreme Court, Badt, J., held that under statute giving a garage lien of $300 for work on
a motor vehicle, garageman, who did repair work amounting to $402.05 on automobile sold
under conditional sales contract, brought himself within statute by waiving of amount of his
lien exceeding $300, and garage lien was not in its entirety secondary to conditional seller's
lien, but only excess over and above the $300 was secondary.
Affirmed.
Alvin N. Wartman, of Las Vegas, for Appellant.
Ralston O. Hawkins and Thomas J. O'Donnell, of Las Vegas, for Respondent.
Automobiles.
Under statute giving a garage lien of $300 for work on a motor vehicle, garageman, who did repair work
amounting to $402.05 on automobile sold under conditional sales contract, brought himself within statute
by waiving of amount of his lien exceeding $300, and garage lien was not in its entirety secondary to
conditional seller's lien, but only excess over and above $300 was secondary. NRS 108.290, 108.310.
OPINION
The appellant credit corporation, owner of the automobile here involved, executed a
conditional sales contract with one Barber who, without the knowledge of the credit
corporation, delivered possession to respondent Bonnett for repairs, which amounted to
$402.05.
the credit corporation, delivered possession to respondent Bonnett for repairs, which
amounted to $402.05. Payment under the conditional sales agreement having been in arrears,
appellant demanded possession from Bonnett, who refused to comply with such demand until
payment of $300 of his repair bill. The value of the automobile is $600.
It is agreed that the only question involved is whether under NRS 108.290 a garage lien in
excess of $300 is in its entirety secondary to the conditional seller's lien, or whether only the
excess over and above the $300 is secondary.
The statute provides: Any lien or liens in excess of $300 * * * shall be secondary lien or
liens when the motor vehicle * * * in question is sold or leased on a conditional sales
agreement * * *.
The court below traced the development of the law, which in its original state held that the
lien for repairs made without the consent of the conditional seller was inferior to the lien or
title of such seller; that this was carried into the motor vehicle act of 1917 (Stats. of Nev.,
1917, Ch. 213, p. 402), into the motor vehicle act of 1943 (Stats. of Nev., 1943, Ch. 95, p.
121), and into the reenactment thereof in 1945 (Stats. of Nev., 1945, Ch. 211, p. 358). The
district judge defined its further progress as follows: In 1953 the law was amended to
provide that any liens in excess of $100.00 would be secondary, meaning, of course, to
protect the small garage owner for work amounting to $100.00 or less (Chapter 271, 1953,
Stats. of Nev.). Finally in 1957 the amount of $100.00 was increased to $300.00 (1957 Stats.
of Nev. Chapter 72), which is the present status of the law (NRS 108.290).
It is the opinion of the Court that the intent of the Legislature was to protect garage
keepers for liens up to $300.00, but that they could waive any claim of lien over and above
$300.00 in order to come within the protection of the statute.
Under the pleadings and stipulated statement of facts, the defendant Bonnett has waived
his lien over and above $300.00, and therefore he comes within the statutory exception of
the common-law rule."
and above $300.00, and therefore he comes within the statutory exception of the common-law
rule. The court then ordered judgment entered in favor of the credit corporation against
Bonnett for possession of the automobile or for the sum of $600 in case delivery could not be
made, but that Bonnett be reimbursed in the sum of $300 and the further sum of $100 allowed
Bonnett as attorney fees and his costs.
The credit corporation has appealed and asserts error in the foregoing decision and
judgment. It asserts that because Bonnett, having acquired a lien in the amount of $402.05,
sought to commence satisfaction of this lien by giving the notice required under paragraph 1,
108.310 NRS, and having never claimed a lien for $300 or less, his only claim of lien was
in the amount of $402.05, clearly in excess of the statutory limit, and therefore secondary to
the seller's title. In response to Bonnett's answering brief calling attention to the fact that his
answer to the credit corporation's complaint in replevin asserted a lien in the sum of only
$300, appellant asserts that the statute does not provide that a lien holder may divide his lien
up into pieces; that having once asserted his claim for $402.05, he may not now claim that
less than that is due. The trial court, in the language quoted above, properly rejected this
analysis of the statute in its holding that by Bonnett's waiver of his lien exceeding $300 he
had brought himself within the statute.
Pike, J., and Brown, D. J., concur.
McNamee, C. J., being disqualified by reason of having presided and having rendered the
judgment in the district court, the Governor assigned Honorable Merwyn H. Brown of the
Sixth Judicial District to sit in the case.
____________
75 Nev. 420, 420 (1959) Thorn Constr. v. Int'l Hod Carriers
THORN CONSTRUCTION CO., INC. a Corporation, and MASSACHUSETTS BONDING
& INSURANCE CO., a Corporation, Appellants, v. INTERNATIONAL HOD CARRIERS,
BUILDING AND COMMON LABORERS UNION, LOCAL NO. 872, et al., Respondents.
No. 4189
October 23, 1959 345 P.2d 231
Action by employees and unions against contractor and its surety for certain claimed
wages. The lower court rendered judgment for employees and unions, and contractor and
surety appealed. The Supreme Court, McNamee, C. J., held that where road construction
company agreed to be bound by terms of master labor agreement providing that notices
should be deemed served on contractors when mailed or telegraphed to chapter of associated
general contractors, and company knew that wage changes in subsequent supplemental
agreements might be adopted as result of negotiations held after notice and that they would by
terms of original master agreement become part thereof, construction company's omission to
make inquiry as to notice precluded it from thereafter asserting that it had no knowledge of
notice given by prescribed method or contending that it was not bound by supplemental
agreement requiring retroactive wage increases.
Affirmed.
Robert Callister, of Las Vegas, and Louis H. Callister, of Salt Lake City, Utah, for
Appellants.
John W. Bonner, of Las Vegas, for Respondents.
Estoppel.
Where road construction company agreed to be bound by terms of master labor agreement providing that
notices should be deemed served on contractors when mailed or telegraphed to chapter of associated
general contractors, and company knew that wage changes in subsequent supplemental
agreements might be adopted as result of negotiations held after notice and that they
would by terms of original master agreement become part thereof, construction
company's omission to make inquiry as to notice precluded it from thereafter
asserting that it had no knowledge of notice given by prescribed method or
contending that it was not bound by supplemental agreement requiring retroactive
wage increases.
knew that wage changes in subsequent supplemental agreements might be adopted as result of negotiations
held after notice and that they would by terms of original master agreement become part thereof,
construction company's omission to make inquiry as to notice precluded it from thereafter asserting that it
had no knowledge of notice given by prescribed method or contending that it was not bound by
supplemental agreement requiring retroactive wage increases.
OPINION
In this action the individual respondents and the respondent unions on their behalf sued
appellants for certain claimed wages. From a judgment in favor of respondents this appeal is
taken. Hereinafter the appellants will be referred to as Thorn Company, and the respondents
as Union.
Thorn Company of Utah in the fall of 1954 was awarded a contract by the State of Nevada
to do certain road construction work near Mesquite, Clark County, Nevada. Before its bid
was submitted, the Thorn Company investigated the wage rules in effect and in part based its
bid on such rates.
At this time three employer associations of Clark County were parties to a Master Labor
Agreement with the Building and Construction Trade Unions. This Master Labor Agreement
became effective July 10, 1948 and by its terms was to continue until June 1, 1954 and
thereafter if not terminated and if renewed as therein provided. It was renewed periodically by
supplemental agreements known as Resolutions to Continue, which confirmed the original
Master Labor Agreement except for some changes usually as to wage rates. The said Master
Agreement and Resolutions were binding on the members of the employer associations as
well as upon members of the signatory unions.
On January 31, 1955, in a letter agreement between Thorn Company and one of the
signatory unions, Thorn Company agreed to be bound with the terms and conditions of the
Master Labor Agreement.
On August 24, 1955, when Thorn Company's road construction job was almost completed,
the signatory parties to the Master Labor Agreement, after deliberating from the first day of
June 1955 adopted a new Resolution to Continue which provided for wage increases
retroactive to June 27, 1955. Because of Thorn Company's refusal to pay these wage
increases, this action was instituted.
The only question we need consider on this appeal is whether the Thorn Company is
bound by the terms of the August 24 Resolution to Continue.
When Thorn Company agreed to be bound by the terms and conditions of the Master
Labor Agreement as aforesaid, the Agreement comprised the original Master Labor
Agreement and several Resolutions to Continue, the last one being the Resolution of
September 7, 1954, which was to continue until June 1, 1955.
The Master Labor Agreement contained provisions for renewal or modifications thereof
upon notice. Section XVI relating to notice provides as follows:
Except as otherwise provided in this Agreement, notices permitted or required to be
served on the contractors * * * under the terms of this Agreement, shall be deemed to be
sufficiently served upon each and every contractor * * * for all purposes when, (1) Mailed
postage prepaid, registered mail, return receipt requested; or (2) Telegraphed (personal
delivery), to the Southern Nevada Chapter of the Associated General Contractors * * *.
This section was complied with before the Union commenced the negotiations which
resulted in the August 24, 1955 Resolution to Continue.
Thorn Company concedes that when it agreed to be bound by the terms and conditions of
the Master Labor Agreement, it adopted all its terms and conditions, and yet it argues that it
did not receive notice for the reason that it had not at any time made the Southern Nevada
Chapter of the Associated General Contractors its agent to receive notices on its behalf. It is
impossible for us to follow this line of reasoning.
If the contract had prescribed posting or publication as the method for giving notice,
agency obviously would not be involved. The fact that the contract provided for delivery of
notice to a specified person does not alter the situation.
When Thorn Company adopted all the terms and conditions of the Master Labor
Agreement, it became bound by said Section XVI. It could have required personal notice at
the time of adopting said Master Agreement. In the absence of such requirement and upon
compliance by the Union with the method of giving notice as prescribed by the contract,
Thorn Company assumed the risk of receipt thereof. See Schott v. Continental Auto Ins.
Underwriters, 326 Mo. 92, 31 S.W.2d 7; Wolonter v. U. S. Casualty Co., 126 Va. 156, 101
S.E. 58; Sasmor v. V. Vivaudou, Inc., 200 Misc. 1020, 103 N.Y.S.2d 640; 39 Am.Jur., Notice
and Notices, sec. 11. It knew at the time of its adoption of the Master Agreement that
Resolutions to Continue had been entered into periodically subsequent to the execution of the
original Master Agreement, and it knew also that the September 7, 1954 Resolution to
Continue would expire on June 1, 1955. Furthermore it knew that changes in wages contained
in any subsequent Resolutions to Continue which might be adopted as a result of negotiations
held after notice would by the terms of the original Master Agreement become part thereof.
The giving of notice by the method prescribed in the Master Agreement and Thorn
Company's omission to make inquiry as to notice precludes it from thereafter asserting that it
had no knowledge of the notice, or that it was not bound by the new wage scale.
Affirmed.
Badt and Pike, JJ., concur.
____________
75 Nev. 424, 424 (1959) Aronoff v. Katleman
BENJAMIN ARONOFF, Appellant, v. BELDON KATLEMAN, EL RANCO, INC., a
Nevada Corporation, and EL RANCO HOTEL OPERATING CO., a Nevada Corporation,
Respondents.
No. 4223
October 26, 1959 345 P.2d 221
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge, Department No. 4.
Action by maker of note against payee seeking adjudication of balance due, if any, to
either party. From an order of the lower court granting maker a preliminary injunction
enjoining payee from declaring a default on, negotiating, or bringing any attachment
proceeding with reference to the note, the payee appealed. The Supreme Court, Pike, J., held
that where complaint filed by maker of note asked court to adjudicate and declare true
balance, if any, owing to either party and it was not until some 10 days later that maker filed a
motion for injunctive relief based on apprehension that if a payment due on note was not paid
payee would exercise option to declare entire balance of note payable, and attach, and that
maker would not then be in a position to give a release of attachment bond in double amount
of demand, and that heavy business losses and damage to him would ensue, relief afforded to
maker by attachment statutes was full and adequate and court erred in granting a preliminary
injunction in favor of maker conditioned on posting of a materially smaller bond in an
amount fixed in the court's discretion.
Goldwater, Singleton, Dickerson and Miles, of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas; Woodburn, Forman, Wedge, Blakey and
Thompson, of Reno; Leo K. Gold, of Beverly Hills, California, for Respondents.
1. Injunction.
Where complaint filed by maker of note asked court to adjudicate and declare true balance, if any, owing
to party, and it was not until some 10 days later that maker filed a motion for injunctive relief based on
apprehension that if a payment due on note was not paid payee would exercise option to declare entire
balance of note payable, and attach, and that maker would not then be in a position to give a release of
attachment bond in double amount of demand, and that heavy business losses and damage to him would
ensue, relief awarded to maker by attachment statutes was full and adequate and court erred in granting a
preliminary injunction in favor of maker conditioned on posting of a materially smaller bond in amount
fixed in the court's discretion. NRS 31.010, 31.030, subd. 1, 31.040, 31.180, 31.190, subd. 1.
While broad scope of actions in which declaratory relief may be granted to determine legal status and
rights of parties is recognized, a declaratory judgment in essence does not carry with it element of coercion
as to either party, but rather determines their legal rights without undertaking to compel either party to pay
money or to take some other action to satisfy such rights as are determined to exist by declaratory
judgment. NRS 31.010, 31.030, subd. 1, 31.040, 31.180.
A declaratory judgment may, under appropriate circumstances, be coupled with injunctive relief. NRS
31.010, 31.030, subd. 1, 31.040, 31.180.
OPINION
By the Court, Pike, J.:
Appeal from an order of the trial court granting a preliminary injunction enjoining
appellant from declaring a default on, negotiating, or bringing any attachment proceeding
with reference to a certain promissory note executed by plaintiff.
Appellant Aronoff (defendant below) is hereinafter referred to as Aronoff, and respondents
Katleman, El Ranco, Inc., a Nevada corporation, and El Ranco Hotel Operating Co., a
Nevada corporation (plaintiffs below) are referred to as Katleman. Katleman controls the two
respondent corporations.
Prior to January 1, 1958 Katleman had been the sole owner of El Ranco Hotel Operating
Co., a corporation, which operated the El Rancho Vegas Hotel in Las Vegas, including its
gambling, restaurant and bar.
which operated the El Rancho Vegas Hotel in Las Vegas, including its gambling, restaurant
and bar. On January 1, 1958 Aronoff paid Katleman $500,000 for a one-half interest in said
El Ranco Hotel Operating Co. By written agreement dated April 1, 1958 Katleman agreed to
repay the $500,000 to Aronoff for the return of the one-half interest, less one-half the amount
of the operating losses for the period from January 1, 1958 to April 1, 1958. Aronoff was also
to be credited for any profits accruing from revenue during the remainder of 1958. It was
agreed that the amount of the operating losses and of any profits during the periods indicated
were to be ascertained by accountants engaged by the respective parties.
On April 29, 1958 the accountants made a partial accounting to the parties covering the
first three months of 1958 showing an operating loss for that period of $292,658.01 plus
$4,875, plus an undetermined insurance expense.
On February 16, 1959 Aronoff sued Katleman for $398,369 as the amount claimed to be
due and unpaid to him pursuant to the agreement and caused an attachment to be levied
against Katleman's property. The attachment halted the operations of El Rancho Vegas Hotel.
Aronoff and Katleman and their counsel conducted negotiations as a result of which Aronoff
caused the attachment to be released on February 18, 1959. In connection with such
negotiations on the same date Katleman delivered to Aronoff a non-interest bearing
negotiable promissory note in the sum of $315,869, which provided for monthly installment
payments and acceleration of the entire balance at the option of the holder in the event of
default of any payment. Concurrently the parties entered into a written agreement giving
Aronoff the right to waive the security of a deed of trust given to secure payment of the
promissory note and to avail himself of all remedies provided by law in connection with the
enforcement of the payment of said note. Katleman also paid the sum of $100,000 to Aronoff
and canceled certain other indebtedness claimed to be owed him by Aronoff.
The suit brought by Aronoff was not dismissed, and the attachment bond for more than
$90,000 remains on file with the clerk of the trial court conditioned that Aronoff will pay all
costs awarded to Katleman and all damages which may have been sustained by him by reason
of the attachment.
Katleman thereafter made the $25,000 payment due on the note on April 1, 1959 and
similar payments in like amount on May 1 and June 1, 1959. However, prior to a $50,000
payment becoming due on the note on July 1, 1959 Katleman commenced the present suit.
Katleman's first amended and supplemental complaint against Aronoff was filed on June 16,
1959. Among other things it alleged that Katleman executed and delivered to Aronoff the
promissory note and accompanying documents by reason of duress and business compulsion.
Such complaint further alleged the written agreement between the parties of April 1, 1958,
the partial accounting for the three months' period ending March 31, 1958, the halting of the
hotel operations through the attachment suit brought by Aronoff on February 16, 1959, the
expenses incurred by Katleman during the three days that the hotel operations were stopped
by the attachment, and the negotiations between the parties including the payment of
$100,000, and the delivery to Aronoff by Katleman of the promissory note and the other
considerations already referred to.
The complaint also alleges that, under the partial accounting made, the one-half of the
operating loss of the first three months of 1958 chargeable to Aronoff amounts to
$232,464.78 and that such sum should be credited against the $500,000 owed to Aronoff by
Katleman. The complaint further alleges additional amounts claimed to be due to Katleman
or the respondent corporations, sums covering hotel bills totaling $11,404.36, $8,000 due
Katleman from Aronoff since October 1, 1958 (the basis of which indebtedness is not
alleged) and alleges items of $7,500 and $3,000 as attorney's fees paid on Aronoff's behalf in
1958.
Additional allegations of the complaint are that El Ranco Hotel Operating Co. suffered an
immediate operating loss of $3S,104.94 by reason of the attachment.
ating loss of $38,104.94 by reason of the attachment. In addition, damage to the general
business reputation and good will of such corporation is alleged in the amount of $150,000
and punitive damages for $100,000 are sought. The complaint alleges that the amount of the
promissory note does not correctly state the balance owed by Katleman to Aronoff, alleges
the payment of the $100,000 and the three monthly payments of $25,000 each made on the
note in order to avoid a repetition of the attachment proceedings, and alleges that a
controversy exists which should be expeditiously adjudicated by the court and prays that the
court adjudicate and declare the true balance, if any, owing by and to the parties, and for
special, general and exemplary damages and for general relief. No injunctive relief was
sought at the time that Katleman's complaint was filed.
Aronoff's answer was filed June 18, 1959 which, among other things, specifically denied
that Aronoff owed any of the sums sought in Katleman's complaint, and that any of the
payments made by Katleman were made in order to avoid repetition of attachment
proceedings, and denies that there is a controversy as to the true balance of the promissory
note. As a matter of affirmative defense it alleges Katleman's refusal to comply with the
agreement of April 1, 1958, the bringing of the attachment suit and its dismissal in
consideration of the delivery of the promissory note, and the payment of the other
considerations by Katleman to Aronoff. Certain counterclaims are likewise asserted by
Aronoff which allege conditions under which Aronoff paid the $500,000 to Katleman and the
circumstances which caused him to request its return and the negotiations leading to the
execution by the parties of the agreement of April 1, 1958 which Aronoff alleges he would
not have executed except for duress and business compulsion asserted against him by
Katleman.
The second counterclaim alleges the agreement and exchange of valuable considerations
by the parties of February 18, 1959 and the bringing of the present suit after such compromise
and settlement of differences between the parties.
between the parties. Aronoff asks that the judgment be given against Katleman for the sums
found to be due to Aronoff and for damages in the sum of $100,000 occasioned by the
bringing of the present suit by Katleman.
On June 26, 1959 Katleman filed his motion for preliminary injunction supported by his
affidavit. Aronoff filed a motion to quash such application, which motion was supported by
Aronoff's affidavit. Katleman's affidavit incorporated the allegations of his complaint into the
affidavit by reference thereto. The motions were heard simultaneously and the court granted
the preliminary injunction and ordered that Katleman file bond in the sum of $50,000
conditioned for the payment of costs and damages to any party found to have been wrongfully
enjoined or restrained.
Aronoff contended that as the attachment statutes
1
specifically prescribe complete, valid
and adequate legal rights and remedies applicable to this situation for the protection of the
rights of both parties, the trial court exceeded its jurisdiction in granting the equitable remedy
of injunctive relief.
____________________

1
NRS 31.010. The plaintiff at the time of issuing the summons, or at any time afterwards, may have the
property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless
the defendant gives security to pay such judgment, as hereinafter provided * * *.
NRS 31.030 (1) Before issuing the writ, the clerk shall require a written undertaking on the part of the
plaintiff payable in lawful money of the United States, in a sum not less than $200, and not less than one-fourth
of the amount claimed by plaintiff, with two or more sureties to the effect that if the plaintiff dismiss such action
or if the defendant recover judgment the plaintiff will pay in lawful money of the United States all costs that may
be awarded to the defendant, and all damages which he may sustain by reason of the attachment including
attorney's fees, not exceeding the sum specified in the undertaking. * * *
NRS 31.040. The writ shall be directed to the sheriff of any county in which property of such defendant
may be, and require him to attach and safely keep all the property of such defendant within his county not
exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of
which shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking
of at least two sufficient sureties in an amount sufficient to satisfy such demand,
[Headnote 1]
Katleman, on the other hand, stated that he delivered the note only by reason of duress and
business compulsion. He argued as a basis for injunctive relief that he (Katleman) was
apprehensive that if the $50,000 payment due on the note of July 1, 1959 was not paid
Aronoff would exercise his option to declare the entire balance of the note payable, and
attach, and that Katleman would not then be in a position to give a release of attachment bond
in double the amount of the demand, and that heavy business losses and damage to him
would ensue, and therefore by judicial authority and statute
2
he is entitled to a preliminary
injunction to prevent such acts during the pendency of the suit.
It is not denied that on April 1, 1958 a total of $500,000 less one-half of the operating
losses was owing by Katleman to Aronoff. The figures submitted by the accountants as
operating losses for the first three months of 1958 when considered with the $175,000 already
paid and all setoffs claimed by Katleman in his complaint but not including general
unliquidated or exemplary damages sought by him show a sum in excess of $60,000 still
due from Katleman to Aronoff at the time that this suit was brought.
____________________
besides costs, in the money or currency of the contract, in which case to take such undertaking. Several writs
may be issued at the same time to the sheriffs of different counties.
NRS 31.180. Whenever the defendant shall have appeared in the action, he may apply, upon reasonable
notice to the plaintiff, to the court in which the action is pending, or to the judge thereof, for an order to
discharge the attachment, wholly or in part, upon the execution and filing of the undertaking mentioned in NRS
31.190. Such order may be granted directing the release from the operation of the attachment, upon the filing of
such undertaking and the justification of the sureties thereon, if required by the plaintiff, of all or any part of the
property, money, debts or credits attached, as the case may be. All the proceeds of sales and moneys collected by
the sheriff, and all the property attached remaining in his hands, so released, shall be delivered or paid to the
defendant upon the filing of such undertaking and making such justification, if required by the plaintiff.
NRS 31.190 (1) On granting such order, the court or the judge shall require an undertaking on behalf of the
defendant, with at least two sureties, residents and freeholders, or householders, in the county, which shall be
filed:
(a) To the effect, in case the value of the property or the amount of money, debts, or credits sought to be
released shall equal or exceed the amount claimed by the plaintiff in the complaint, that the defendant will pay to
the plaintiff the amount of the judgment which may be recovered in favor of the plaintiff in the action not
complaint but not including general unliquidated or exemplary damages sought by him show
a sum in excess of $60,000 still due from Katleman to Aronoff at the time that this suit was
brought. Katleman has not pleaded or asserted his inability to pay the $50,000 due on the note
on July 1, 1959 and has not made any tender of this amount or any portion of the same.
Monthly payments of $50,000 each for four months commencing July 1, 1959 are required by
the terms of the note, with the final payment due and payable on November 1, 1959. To date,
by reason of the authority of the injunction, Katleman has been relieved of making these
monthly payments.
Appellant argues at considerable length that as the relief obtained from the temporary
injunction is equitable in its nature, Katleman's failure either to do equity or to offer to do
equity or to come into court with clean hands precluded his right to the equitable relief
accorded him. Although there appears to be merit in this contention, we find it unnecessary to
discuss the same or to rely upon it in our disposition of the appeal.
____________________
exceeding the sum specified in the undertaking, which shall be at least double the amount so claimed by the
plaintiff, and in the money or currency of the contract; or
(b) To the effect, in case the value of the property or the amount of money, debts, or credits sought to be
released shall be less than the amount so claimed by the plaintiff, that the defendant will pay the amount of such
judgment, to the extent of the value of the property, or amount of money, debts, or credits sought to be released,
not exceeding the sum specified in the undertaking, which shall be at least double the amount of such property,
money, debts or credits, and in the money or currency of the contract. * * *

2
NRS 33.010. An injunction may be granted in the following cases:
1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief
or any part thereof consists in restraining the commission or continuance of the act complained of, either for a
limited period or perpetually.
2. When it shall appear by the complaint or affidavit that the commission or continuance of some act,
during the litigation, would produce great or irreparable injury to the plaintiff.
3. When it shall appear, during the litigation, that the defendant is doing or threatens, or is about to do, or is
procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the
action, and tending to render the judgment ineffectual.
While Katleman contends that the complaint seeks declaratory relief there are no
allegations in the complaint or in the prayer seeking to have the court determine any legal
right relating to the promissory note. The court is asked to adjudicate and declare the true
balance, if any, owing Katleman and to the parties. The motion for injunctive relief was not
filed concurrently with the complaint, but on June 26, 1959, some ten days later.
[Headnote 2]
While the broad scope of actions in which declaratory relief may be granted to determine
the legal status and rights of the parties is recognized, a declaratory judgment in essence does
not carry with it the element of coercion as to either party. Rather, it determines their legal
rights without undertaking to compel either party to pay money or to take some other action
to satisfy such rights as are determined to exist by the declaratory judgment. See Nevada
Management Co. v. Jack, 75 Nev. 232, 338 P.2d 71; 15 Cal.Jur.2d, Declaratory Relief, sec. 5;
62 Harvard L.Rev. 787.
[Headnote 3]
This court recently held in Nevada Management Co. v. Jack, supra, that, under appropriate
circumstances, a declaratory judgment may be coupled with injunctive relief. However, even
if it be assumed that Katleman's complaint may properly be construed as a complaint seeking
declaratory relief, the circumstances of the nature justifying injunctive relief in the Nevada
Management Co. v. Jack case, supra, do not appear in the instant case. Viewed most
favorably to the pleader in this aspect, the complaint shows that it seeks declaratory relief
only as to any balance due either party, which is more in the nature of an accounting, and
under its allegations would require a trial upon the merits, rather than in a preliminary
proceeding under the guise of injunctive relief to preserve the status quo. Under the
circumstances, there would seem to be a serious question as to the propriety of granting
preliminary injunctive relief. See City of San Diego v. Cuyamaca Water Co., 209 Cal.
209 Cal. 105, 287 P. 475. We pass, however, to the main assignment of error, whose
resolution must guide us in the disposition of this appeal.
The basic question is whether, under the stated facts, the relief afforded to Katleman by the
Nevada attachment statutes is full and adequate. We believe that it is. Under such statutes
Katleman has the opportunity to post bonds under the various contingencies provided by such
statutes.
Katleman complains of the harshness of the provisions of the Nevada attachment statutes.
The statutes can be viewed as having received the consideration of the legislature as recently
as the time when they were amended in 1957 and, if harsh, their possible modification would
necessarily have to be taken care of by way of legislative enactment.
Here the statutes (having given a right to Aronoff to sue on his note and to secure by
attachment the benefits of any judgment obtained against Katleman) likewise provided to
Katleman a complete protection against the attachment and the remedy by which such relief
might be obtained. This was twofoldeither by a bond to prevent the attachment or a bond to
release the attached property. This provided a complete and valid remedy for the right thus
created, and the right and remedy thereby given are exclusive. Valley Drive-In Theatre Corp.
v. Superior Court, 79 Ariz. 396, 291 P.2d 213. It was error for the court below to substitute
for this remedy and its fixed requirements for bond an equitable remedy by way of a
preliminary injunction conditioned on the posting of a materially smaller bond, in an amount
fixed in the court's discretion.
No showing was made before the trial court and none is made here that the performance of
any of the acts restrained, other than attachment, would result in any immediate and
irreparable injury to Katleman. Enjoining such acts was error. 27 Cal.Jur.2d, Injunctions, sec.
8.
Reversed, with costs to appellant, and remanded with instructions to the trial court to grant
Aronoff's motion to quash Katleman's motion for preliminary injunction, and to dissolve
such preliminary injunction.
and to dissolve such preliminary injunction. Remittitur to be issued forthwith inasmuch as the
trial on the merits below has been set for December 7, 1959.
____________
75 Nev. 434, 434 (1959) Troop v. Young
ROBERT TROOP, a Minor, and RAYMOND TROOP and HELEN TROOP, Parents of Said
Minor, Appellants, v. BARBARA JOYCE YOUNG, Sometimes Known as BARBARA J.
CARR, a Minor, by Her Guardian Ad Litem, KATHERINE COWAN, Respondent.
No. 4188
October 28, 1959 345 P.2d 226
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge, based on jury verdict, and from the orders denying motions for judgment
notwithstanding the verdict, and for new trial.
Action by automobile guest against host driver for injuries sustained in an accident which
occurred when automobile upset wherein host testified that while attempting to make a
pretty good turn, at a speed of 35 miles an hour on a narrow, dirt, two-track road he hit a
large rock which blew out right front tire and turned automobile on its side, and guest
testified that she had cautioned host to take it easy. From adverse judgment of the lower court
the host appealed. The Supreme Court, Badt, J., held that evidence presented a question for
jury on issue of gross negligence of host.
Affirmed.
Vargas, Dillon & Bartlett and Alex A. Garroway, of Reno, for Appellants.
Richard L. Waters, Jr., of Carson City, for Respondent.
75 Nev. 434, 435 (1959) Troop v. Young
1. Automobiles.
In action by automobile guest against host driver for injuries sustained in accident which occurred when
automobile upset wherein host testified that while attempting to make a pretty good turn, at a speed of 35
miles an hour on a narrow, dirt, two-track road he hit a large rock which blew out right front tire and turned
automobile on its side, and guest testified that she had cautioned host to take it easy, evidence presented a
question for jury on issue of gross negligence of host.
2. Automobiles.
Where reasonable men could draw different inferences from evidence presented on question of existence
of gross negligence of host motorist, question is one of fact for jury and not one of law for the court.
OPINION
Plaintiff was a guest in an automobile driven by defendant, and the judgment for damages
in her favor was accordingly, under Nevada's guest statute, based upon the finding of
defendant's gross negligence. Appellant contends that as a matter of law no gross negligence
appeared, and that a reversal must follow. We have concluded that reasonable minds could
differ as to whether or not the defendant was guilty of gross negligence; that the issue was
therefore properly left to a determination by the jury and that there was no error in denying
the motion for new trial or in denying motion for judgment notwithstanding the verdict.
[Headnote 1]
Defendant at the time of the accident was a boy of the age of 16 years without benefit of
having, or ever having had, a driver's license. Plaintiff was a 14-year-old girl. The accident
occurred just off the Ash Canyon Road to the west of Carson City. According to defendant's
own testimony the upset happened on a narrow, dirt, two-track (one lane) road. Within a few
minutes prior to the accident he had run out of gas. He walked up the road a short distance to
the Joost home to obtain gas, walked back, then drove back up the road to the Joost home.
Coming back down the road, with plaintiff as his passenger, he had started by "digging
out," that is, spinning his wheels, accomplished by depressing the accelerator to the floor
of the car and then putting the car in motion.
75 Nev. 434, 436 (1959) Troop v. Young
passenger, he had started by digging out, that is, spinning his wheels, accomplished by
depressing the accelerator to the floor of the car and then putting the car in motion. Within a
distance of less than a quarter of a mile he had accelerated his speed to about 40 miles an
hour. At this speed he went into a slight turn, which was immediately followed by a pretty
good turn, which he attempted to make at a speed of 35 miles an hour. He testified that he
hit a rock bigger than a basketball that was in the road and that he had not seen such rock in
the three previous times he had traveled the road; that hitting the rock blew out the right front
tire and that the car turned on its side in a bunch of rocks.
The plaintiff testified that she had just cautioned defendant to take it easy, that he
slammed on the brakes, and that the car then turned over. She also testified that earlier in
the day while they were returning from Virginia City, down a steep and winding road, she had
remonstrated with defendant at least five to ten times or more about his excessive speed.
[Headnote 2]
It is not asserted that defendant was not negligent. He asserts simply that under the facts of
the case he was as a matter of law not guilty of gross negligence. We held, however, in Kuser
v. Barengo, 70 Nev. 66, 254 P.2d 447, that where reasonable men could draw different
inferences from the evidence presented on the question of the existence of gross negligence,
the question is one of fact for the jury and not one of law for the court. In that case, as here,
defendant referred to numerous cases in which the trial court was held to be without error in
holding that as a matter of law gross negligence had not been proved and that an order of
nonsuit was proper. In that case, as here, particular reliance was had by the defendant on Hart
v. Kline, 61 Nev. 96, 116 P.2d 672. It is only necessary to say that in all such cases the facts
were different and that the holdings referred to do not compel the conclusion in this case
advanced by appellant.
It was therefore proper to submit the issue to the jury with appropriate instructions. The
instruction given the jury on the issue of gross negligence was word for word in the
language approved by this court in Hart v. Kline, supra.
75 Nev. 434, 437 (1959) Troop v. Young
jury on the issue of gross negligence was word for word in the language approved by this
court in Hart v. Kline, supra.
Three other assignments of error are asserted by appellant. We have carefully considered
them, but find them to be without merit. The judgment and orders appealed from are affirmed
with costs.
McNamee, C. J., and Pike, J., concur.
____________
75 Nev. 437, 437 (1959) Johnson v. Brown
H. C. JOHNSON, Appellant, v.
OREN BROWN, Respondent.
No. 4187
October 29, 1959 345 P.2d 754
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge,
Department No. 3.
Action against fireman, who drove fire engine, for injuries sustained by truck passenger
when truck was struck by fire engine. The lower court rendered judgment for passenger, and
fireman appealed. The Supreme Court, McNamee, C. J., held that where fireman driving fire
engine in response to emergency call proceeded through stop sign on heavily traveled through
street at a speed in excess of speed limit, substantially cut corner and, while on wrong side of
street, collided with truck, fireman was not driving with due regard for safety of all persons
using street, and in absence of contributory negligence he was liable to guest passenger of
truck for injuries sustained.
Affirmed.
Goldwater, Taber and Hill, of Reno, for Appellant.
Woodbury, Forman, Wedge, Blakey and Thompson and Richards and Swanson, of Reno,
for Respondent.
1. Automobiles.
Driver of emergency vehicle answering an emergency call is required to exercise reasonable precautions
against extraordinary dangers of the situation which duty compels him to create, and he must keep in mind
the speed at which his vehicle is traveling and the probable consequences of his disregard of traffic signals
and other rules of the road. St.1955, c. 118, sec. 1.
2. Automobiles.
Reno ordinances and state statute with respect to emergency vehicles were designed to give emergency
vehicles extraordinary rights, but were not intended to absolve drivers thereof from duty to be on lookout at
all times for safety of public whose peril is increased by their exemptions from the rules of the road.
St.1955, c. 118, sec. 1.
3. Automobiles.
Where fireman driving fire engine in response to emergency call proceeded through stop sign on heavily
traveled through street at a speed in excess of established speed limits, substantially cut corner and, while
on wrong side of street, collided with truck, fireman was not driving with due regard for safety of all
persons using street, and in absence of contributory negligence he was liable to guest passenger of truck for
injuries sustained as proximate result of fireman's conduct. St.1955, c. 118, sec. 1.
4. Automobiles.
In action by guest passenger of truck for injuries sustained in collision of truck with fire engine, question
whether guest passenger was guilty of contributory negligence in collision was for jury and its conclusion
from the evidence and the instructions was conclusive. St.1955, c. 118, sec. 1.
5. Trial.
Whether, under circumstances of a particular case, arguments of counsel suggesting a mathematical basis
for fixing damages for pain and suffering is an improper invasion of rights of jury is to be determined by
trial judge in exercise of judicial discretion. NRS 16.090.
6. Trial.
Argument suggesting a mathematical basis for fixing damages for pain and suffering may be used only
for illustrative purposes, trial court should insist that argument be premised by an admonition that
suggestions of counsel are not to be taken as evidence but are merely the thoughts of counsel as to what
would be proper damages to award and trial court should not hesitate to limit counsel whenever it feels that
rights of jury to determine for itself what fair and reasonable compensation for such items of damages are
being invaded, or to give such further admonition as it deems necessary. NRCP 51.
7. Trial.
In personal injury action, permitting counsel in summation to jury to suggest a mathematical basis for
fixing damages for pain and suffering was not improper on ground that it was an
unwarranted intrusion into domain of jury, inasmuch as counsel stated that if jury
thought counsel was being unfair jury should come to its own conclusion.
for pain and suffering was not improper on ground that it was an unwarranted intrusion into domain of jury,
inasmuch as counsel stated that if jury thought counsel was being unfair jury should come to its own
conclusion. NRCP 51.
OPINION
Respondent was a guest passenger in a truck as it was being driven north on Chestnut
Street (now Arlington Avenue) in the city of Reno toward the intersection of that street and
West Commercial Row. At this time appellant, a fireman for the city, was driving a fire
engine in response to an emergency call proceeding west on West Commercial Row. After
rounding the corner and while driving in excess of the statutory speed limit the fire engine
came in contact with the truck on Chestnut Street just a few feet south of the intersection,
causing to respondent the injuries complained of. Evidence showed that at the time of the
collision, the truck driver was wholly within his own lane of traffic and was applying his
brakes.
The jury's verdict was for respondent, and appeal is from the judgment based thereon.
Three errors are assigned for our consideration.
1. Appellant maintains that the trial court erred in giving to the jury the following
instruction relative to the degree of care required of the driver of an emergency vehicle while
responding to an emergency call.
It is the law of this state that a fire engine, responding to an emergency call and
displaying a red light visible from the front, and sounding a siren, is exempt from and shall
not be required to observe certain laws that generally apply to the drivers of vehicles on the
public streets.
This means that the driver of a fire engine, under such circumstances, need not observe
laws regarding speed, the use of different lanes of the street, rights of way, stop signs, and
turns at intersections. This exemption, however, will not relieve the driver of an emergency
vehicle from the duty to drive with due regard for the safety of all persons using the street,
nor shall it protect the driver of any such vehicle from the consequence of the reckless
disregard of the safety of others."
for the safety of all persons using the street, nor shall it protect the driver of any such vehicle
from the consequence of the reckless disregard of the safety of others.
This instruction merely restates the then existing law
1
pertinent to the rights and duties of
drivers of emergency vehicles.
There is sufficient evidence in the record to show that appellant was entitled to those
exemptions afforded by law to operators of emergency vehicles as are enumerated in said
instruction.
It is appellant's contention that the quoted instruction contradicts itself in that while
properly charging the jury that the fire engine was exempt from observing certain rules of the
road it went on to state * * * This exemption, however, will not relieve the driver of an
emergency vehicle from the duty to drive with due regard for the safety of all persons using
the street
* * *.
Appellant argues that the requirement that he drive with due regard for the safety of
others is met by his compliance with the conditions that entitle him to the exemptions.
There is substantial authority to sustain this view of appellant.
In the case of Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599, 601, where a
statute similar to the Reno ordinance provided that an authorized emergency vehicle is
exempt by law from complying with specified statutes and ordinances regulating the
operation of vehicles on public roads, the court held that if such vehicle is responding to an
emergency call, is displaying a visible red light from the front, and is sounding a siren, the
driver thereof cannot be negligent in violating such regulations in the absence of reckless
disregard of the safety of others. With respect to that part of the statute which states that the
provisions thereof shall not, however, relieve the driver * * * from the duty to drive with
due regard for the safety of all persons using the highway," the court said:
____________________

1
Nev. Stat. 1955, c. 118, sec. 1; NCL 1943-1949 Supp., sec. 4350.3; Ord. City of Reno, sec. 10-60, sec.
10-74, sec. 10-75.
with due regard for the safety of all persons using the highway, the court said:
A simple analysis of these statutory provisions discloses the clear intention of the
Legislature to recognize the paramount necessity of providing a clear and speedy pathway for
such vehicles when actually confronted with the emergency in which the entire public may be
assumed to be concerned. The expression with due regard for the safety' of all persons using
the highway was explained in the Balthasar Case, where the court said, 187 Cal. 302, at page
311, 202 P. 37, 41, 19 A.L.R. 452: It is evident that the right of way of fire apparatus over
other vehicles is dependent upon due regard to the safety of the public only in so far as such
due regard affects the person required to yield the right of way. Notice to the person
required to yield the right of way is essential, and a reasonable opportunity to stop or
otherwise yield the right of way necessary in order to charge a person with the obligation
fixed by law to give precedence to the fire apparatus.' This is the only reasonable
interpretation that the statute will bear. If the driver of an emergency vehicle is at all times
required to drive with due regard for the safety of the public as all other drivers are required
to do, then all the provisions of these statutes relating to emergency vehicles become
meaningless and no privileges are granted to them. But if his due regard' for the safety of
others means that he should, by suitable warning, give others a reasonable opportunity to
yield the right of way, the statutes become workable for the purposes intended.
* * * * * * *

Our conclusions from the foregoing are that when the operator of an emergency vehicle
responding to an emergency call gives the statutory notice of his approach the employer is not
liable for injuries to another, unless the operator has made an arbitrary exercise of these
privileges. In such cases speed, right of way, and all other rules of the road' are out of the
picture; the only questions of fact, in so far as the public owner is concerned, are first,
whether there was an emergency call within the terms of the statute; second, whether
the statutory warning was given; and third, whether there was an arbitrary exercise of
these privileges.
questions of fact, in so far as the public owner is concerned, are first, whether there was an
emergency call within the terms of the statute; second, whether the statutory warning was
given; and third, whether there was an arbitrary exercise of these privileges. Here the
emergency was conceded, the sounding of the siren was proved by the only substantial
evidence offered, and an arbitrary exercise of the privileges has not been shown.
Accord: Raynor v. City of Arcata, 11 Cal.2d 113, 77 P.2d 1054; Lakoduk v. Cruger, 48
Wash.2d 642, 296 P.2d 690.
[Headnote 1]
It is clear to us that the majority and better rule is in opposition to the California rule as
expressed in the Lucas case, supra, and requires the driver of an emergency vehicle answering
an emergency call to exercise reasonable precautions against the extraordinary dangers of the
situation which duty compels him to create, and he must keep in mind the speed at which his
vehicle is traveling and the probable consequences of his disregard of traffic signals and other
rules of the road.
In the case of Montalto v. Fond du Lac County, 272 Wis. 552, 76 N.W.2d 279, 282, the
Wisconsin Supreme Court construed its statute which contained a provision exempting
authorized emergency vehicles from certain rules of the road and which stated that this
provision shall not relieve the operator of an authorized vehicle from the duty to operate with
due regard for the safety of all persons using the highway. After noting the construction
placed on such a statute by the California courts, it stated as follows:
Appellants argue that the same construction should be given to sec. 85.40 (5), Stats. We
cannot agree. We deem the better rule to be that expressed in the following cases:
The right of way given to public service vehicles and their exemption from traffic
regulations, however, do not relieve their operators from the duty of exercising due care to
prevent injury to themselves and others lawfully upon the ways. * * * while they have a right
to assume in the first instance that the operators of other vehicles will respect their right of
way at an intersection, they are warned by a red light flashing against them that other
vehicles on the intersecting way are invited to proceed by a green light and may do so.
other vehicles will respect their right of way at an intersection, they are warned by a red light
flashing against them that other vehicles on the intersecting way are invited to proceed by a
green light and may do so. Even if the driver of the other vehicle through negligence
disregards their right of way, they must still use due care to avoid a collision. The measure of
their responsibility is due care under all the circumstances. (Citing cases.)' Russell v. Nadeau,
1943, 139 Me. 286, 29 A.2d 916, 917.
As we understand appellant's position, it contends that since its ambulance was on an
emergency call, the issue of negligence in the rate of speed could not arise against it. This
contention is not sound. The law simply exempts it from the arbitrary speed of 20 miles per
hour, but it was still under the duty of exercising ordinary care, and in the rate of speed the
court convicted it of failing to exercise ordinary care.' Grammier-Dismukes Co. v. Payton,
Tex.Civ.App. 1929, 22 S.W.2d 544, 546.
In our opinion, the giving of visible and audible warnings may or may not afford a
reasonable opportunity to others to yield the right of way, depending upon the circumstances
present. And the failure to afford that opportunity may be ordinary negligence or reckless
disregard, depending on those circumstances.
To adopt the view of the appellants would mean that a lack of due regard' would have to
amount to a reckless disregard' before an ambulance driver could be held negligent as to
speed. That the legislature had no such intention is clear from the fact that sec. 85.40 (5),
Stats. both requires that a driver operate with due regard for the safety of others and prohibits
the exercise of his privilege with a reckless disregard for their safety.
Similarly the Maryland Court in City of Baltimore v. Fire Insurance Salvage Corps, 219
Md. 75, 148 A.2d 444, 447, refused to follow the California rule, and said:
The appellant earnestly urges us to adopt what may be called the California rule. In
interpreting statutes somewhat similar to ours, that State has held that if the audible signal be
given, speed, right of way, and all other rules of the road are out of the picture,' and the
driver cannot be held responsible for ordinary negligence, but only for 'an arbitrary
exercise of these privileges' {the words of the California statute corresponding to
'reckless disregard of the safety of others' in ours).
driver cannot be held responsible for ordinary negligence, but only for an arbitrary exercise
of these privileges' (the words of the California statute corresponding to reckless disregard of
the safety of others' in ours). Lucas v. City of Los Angeles, 1938, 10 Cal.2d 476, 75 P.2d 599,
604; Coltman v. City of Beverly Hills, 1940, 40 Cal.App.2d 570, 105 P.2d 153. However, we
think the correct rule is that adopted by the Supreme Court of Wisconsin in Montalto v. Fond
du Lac County, 1956, 272 Wis. 552, 76 N.W.2d 279, 283. * * * We, therefore, hold that
under a proper construction of Section 214, the provision that requires the operator of an
authorized emergency vehicle to do so with due regard for the safety of all persons using the
street' renders him liable for ordinary negligence, namely, a failure to exercise reasonable care
and diligence under the circumstances.
In City of Kalamazoo v. Priest, 331 Mich. 43, 49 N.W.2d 52, 54, the court stated:
It will be noted that the quoted statute, according emergency vehicles the right-of-way,
conditions the same upon the sounding of an audible signal by siren, etc. In addition, the
statute expressly provides that the driver thereof shall not be relieved from the duty to drive
with due regard for the safety of others. The statute exempting such driver from speed limits
contains a like provision concerning due regard for the safety of others. Plaintiff cites cases
(all California cases, the primary being Lucas, supra) for the proposition that the statutory
requirement of due regard for the safety of others is met by the giving of suitable warning.
Had such been the legislative intent in the enactment of the Michigan statute, which expressly
requires the giving of an audible warning as a condition precedent to an emergency vehicle's
acquiring the right-of-way, no purpose would have been served by the further express
requirement of the statute that such vehicle be driven with due regard for the safety of others.
* * * * * * *

Driving a fire truck into an intersection in full reliance upon the right to exceed speed
limits and the right to proceed without stopping for the stop sign or the through street, but
without observing or giving any heed to oncoming traffic on the intersecting through
street did not amount to driving with due regard for the safety of others as required by
the statute.
to proceed without stopping for the stop sign or the through street, but without observing or
giving any heed to oncoming traffic on the intersecting through street did not amount to
driving with due regard for the safety of others as required by the statute. Such driving in
reliance upon a statutory right-of-way has frequently been held to constitute contributory
negligence as a matter of law on the part of plaintiff drivers of private vehicles. * * *
Accord: Henderson v. Watson, Ky. 1953, 262 S.W.2d 811; Ruth v. Rhodes, 66 Ariz. 129,
185 P.2d 304. See also Russell v. Nadeau, 139 Me. 286, 29 A.2d 916.
[Headnote 2]
While we are not unmindful that the Reno ordinances and state statutes are designed to
give emergency vehicles extraordinary rights, they were not intended to absolve the drivers
thereof from the duty to be on the lookout at all times for the safety of the public whose peril
is increased by their exemptions from the rules of the road. We believe that sound public
policy requires such a construction. As we stated in the case of Springer v. Federated Church,
71 Nev. 177, 283 P.2d 1071, 1072, It may be true that the public conscience demands a more
extensive acceptance of tort liability * * *; that the general custom and practice of today is to
accept such liability and insure against it. If such be true, the public is better able to carry
this burden than the individual.
[Headnote 3]
Under the facts of the present case where the evidence shows that appellant, while
responding to an emergency call, approached a through street upon which there is a stop sign
for entering vehicles, the through street being heavily traveled at that particular time of day,
and proceeds through the stop sign without stopping at a speed in excess of the established
speed limits, substantially cutting the corner, and is at the time of the collision on the wrong
side of the street, and his vision of oncoming traffic is substantially obstructed, he is not
driving with due regard for the safety of all persons using the street," and, in the absence of
contributory negligence, he is liable to any person injured as a proximate result of his
conduct.
street, and, in the absence of contributory negligence, he is liable to any person injured as a
proximate result of his conduct.
[Headnote 4]
2. There is no merit in appellant's contention that respondent was guilty of contributory
negligence. Such issue was a matter for the jury and its conclusion from the evidence and the
instructions is conclusive. Wells v. Shoemake, 64 Nev. 57, 72, 177 P.2d 451, 459.
3. Over appellant's objection respondent's counsel in his summation to the jury was
permitted to suggest a mathematical basis for fixing damages for pain and suffering. He
stated: The argument I am going to make is obviously distasteful to defendants' attorney, but
it is the only way I can possibly aid you and give you a guide. If you think I am being unfair,
you go into the jury room and say so and come to your own conclusion. It is the only way I
know how to argue pain and suffering, and I am frank to say that, ladies and gentlemen. As I
stated, what is it worth to have your femur violently driven into your pelvis? What is it worth
to have your doctor save your life by a tube tapped into your chest? I suggest $5,000 for the
initial blow and injury. He was in the hospital for 75 days, but for only 67, approximately, he
was in traction and cast.
You have seen the traction and you heard the doctor describe the cast. Now, what is it
worth, what is it worth to have the traction pin pushed through your leg? What is it worth to
have a cast around your body? What is it worth to be in a prison for 67 days? Would ten cents
a minute be unfair? That would be $6 an hour. Consider it yourselves. I will give that ten
cents a minute, $6 an hour. You can make up your minds whether you feel that is unfair or
not. That would be $144 a day, or counsel can correct me if I am wrong, $9,648 for 67 days.
The recent and leading case on this subject, Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60
A.L.R.2d 1331, is very persuasive that such suggestion to the jury constitutes an unwarranted
intrusion into the domain of the jury.
jury. The cases in favor and against the rule announced in the Botta case are discussed therein
as well as in the annotation thereto (60 A.L.R.2d 1347). In New Jersey, however, the rule is
that neither court nor counsel are permitted to refer to the ad damnum clause of the
complaint.
The rule is to the contrary by statute in Nevada. NRS 16.090 provides for the reading of
the pleadings to the jury, and it is the practice in this state for the entire complaint including
the prayer thereof, together with the other pleadings to be read as the first order of
proceedings after the jury has been sworn. Furthermore, it is common practice in this state for
the trial court to instruct the jury that if its verdict is for the plaintiff, it should not be in
excess of the particular amount specified in the prayer of the complaint.
[Headnote 5]
We feel therefore that the preferable rule in this state in view of our statute and the custom
and practice prevalent thereunder is that whether, under the circumstances of the particular
case, the arguments of counsel suggesting a mathematical basis for fixing damages for pain
and suffering is an improper invasion of the rights of the jury is to be determined by the trial
judge in the exercise of judicial discretion.
[Headnote 6]
Inasmuch as this type of argument may be used only for illustrative purposes, the trial
court should insist that it be premised (and in this case it in effect was) by an admonition that
the suggestions of counsel are not to be taken as evidence but are merely the thoughts of
counsel as to what would be proper damages to award for this item. It should not hesitate to
limit counsel whenever it feels that the rights of the jury to determine for itself what would be
fair and reasonable compensation for such items of damages, are being invaded, or to give
such further admonition as it deems necessary. NRCP 51.
[Headnote 7]
We are not inclined to hold that the lower court erred in permitting the argument to the
jury as aforesaid.
Affirmed.
____________
75 Nev. 448, 448 (1959) Gill v. St. Ex. Rel. Booher
ELLIOTT E. GILL, City Clerk, City of Reno, a Municipal Corporation, Appellant, v. STATE
OF NEVADA, on Relation of PAUL E. BOOHER, Respondent.
No. 4207
November 2, 1959 345 P.2d 421
Appeal from judgment of the Second Judicial District Court, Washoe County; John F.
Sexton, Presiding Judge, Department No. 3.
Suit by dog kennel operator for writ of mandamus to compel city clerk to issue renewal
license authorizing operator to conduct kennel. The lower court entered judgment issuing
peremptory writ of mandate and city clerk appealed. The Supreme Court, Pike, J., held that
where city council in substantial compliance with city ordinance revoked operator's kennel
license, clerk's authority to issue renewal license, which prior to council's action may have
been a ministerial duty to issue license, no longer existed and mandamus could not be
invoked.
Roy Lee Torvinen and Richard Breitwieser, of Reno, for Appellant.
Stanley H. Brown, of Reno, for Respondent.
1. Mandamus.
Where city council in substantial compliance with city ordinance took necessary action to revoke license
to operate kennel, ministerial duty of city clerk to issue a renewal license no longer existed and mandamus
would not lie to compel issuance of renewal license.
2. Mandamus.
Mandamus is a remedy which may be invoked to cause an administrative officer to perform a ministerial
act when duty to perform such act is clear.
OPINION
Paul E. Booher, respondent herein, operated a dog kennel at 3660 Baker Lane, Reno,
Nevada, under a city business license for the year commencing July 1, 1957 and ending June
30, 1958.
On June 25, 1958 he applied to Elliott E. Gill, city clerk of the city of Reno, for a renewal
of such license for the year commencing July 1, 1958. The city clerk refused to issue such
license. Respondent then brought suit and the trial court issued a peremptory writ of mandate
commanding the city clerk to issue to respondent a general business license to operate the
kennel for the period indicated. The city clerk appeals from the judgment that the peremptory
writ of mandate issue.
Upon stipulation of the parties, copies of the minutes of certain meetings of the Reno city
council pertaining to the subject matter were made part of the record in this appeal. The
minutes of the council meeting held October 28, 1957 reflect council action taken at that time
for respondent to be cited to appear before a public meeting to be held November 12, 1957 to
show cause why his license should not be revoked.
On November 1, 1957 a written notice, bearing that date, was served upon respondent
personally, advising him of the council action, that the formal charge was that his business on
Baker Lane was a nuisance and was detrimental to the peace of the city of Reno, and that he
should be present at the November 12, 1957 meeting and might then present evidence. The
minutes of the November 12, 1957 council meeting and the record disclose that respondent
Booher appeared personally and that the notice dated November 1, 1957 was read to him
advising him of the formal charges made against him.
Respondent called on several persons to testify concerning the manner in which the kennel
was being operated, and other persons present protested the noise caused by the dogs'
barking. After all evidence had been submitted by the respective parties, upon motion carried
by unanimous vote of the six councilmen then present, Booher was given until July 1, 1958
either to remove his business or to have his license revoked. Booher received notice of the
council action and did not move his kennel, but applied to the city clerk for a renewal of his
license.
A city of Reno ordinance then in effect made it unlawful for any person to keep a dog
which, by loud or frequent or habitual barking or other noise, caused annoyance to the
neighborhood or to any person therein.
1
Another ordinance provided that all licenses should
be subject to revocation by the city council for the failure of any licensee to comply with the
provisions of the city ordinances, and that if any licensee should maintain any business as a
nuisance or detrimental to the peace of the city of Reno the city council might, upon
complaint or upon its own motion, take action for the revocation of such license. Such
ordinance provided that the licensee should be cited to appear before the council to show
cause why his license should not be revoked, that at the hearing formal charges should be
made against the licensee, the licensee might present witnesses and other evidence
considered, and that after such hearing the license could be revoked by action of five-sixths of
the members of the city council.
2
We consider that there was substantial compliance by the
council with the applicable requirements of the city ordinances relating to revocation of
respondent's kennel license. Accordingly we are unable to agree with his contention that the
city clerk was required to grant him a renewal of his license.
[Headnote 1]
While, in the absence of the action taken by the city council to revoke respondent's license,
the city clerk may have had the ministerial duty to issue a license,3 after the revocation
action taken by the city council on November 12, 1957, such duty no longer existed.
____________________

1
Reno Municipal Code, ch. 12, secs. 12-58.

2
Reno Municipal Code, ch. 6, secs. 6-27.
have had the ministerial duty to issue a license,
3
after the revocation action taken by the city
council on November 12, 1957, such duty no longer existed.
The city council had authority to revoke respondent's license, and its action had the effect
of divesting the clerk of power to issue a license to respondent. The record shows that the
clerk was present at the meeting of the city council on November 12, 1957 and took the
minutes of that meeting.
[Headnote 2]
Mandamus is a remedy which may be invoked to cause an administrative officer to
perform a ministerial act when the duty to perform such act is clear. State ex rel. Conklin v.
Buckingham, 58 Nev. 450, 83 P.2d 462, and cases there cited. No such situation is present
here. On the contrary, it affirmatively appears that the governing authority, namely the city
council, had taken action toward the revocation of respondent's license and that such action
was inconsistent with the clerk having any ministerial duty to issue a renewal of the license.
Mandamus will not lie to compel an officer to do an act which, without its command, it
would not be lawful for him to do. State ex rel. Conklin v. Buckingham, supra.
Although the foregoing is determinative of this appeal, respondent has urged that an
adverse vote on a motion to revoke his license at a hearing before the city council had on July
8, 1957 was res adjudicata as to the charge of operation of a nuisance. Whether the doctrine
of res adjudicata is applicable to proceedings of a city council need not be determined in this
case because the record fails to show an identity of issues.
The prior hearing was initiated upon the complaint of an individual. It appeared that the
hearing of November 12, 1957, some four months later, was initiated by the council on its
own motion. There was no transcript of testimony made of either hearing. We have no reason
to presume that the condition maintaining in November was the same as that shown to exist
in the preceding July.
____________________

3
Reno Municipal Code, secs. 6-15, 6-16, and 6-18.
Reversed, with costs, and remanded to the trial court with instructions to dismiss the
peremptory writ of mandate issued April 24, 1959.
____________
75 Nev. 452, 452 (1959) Heward v. Sutton (Cross Appeals)
ELMER S. HEWARD, Appellant and Cross Respondent, v. JAMES SUTTON, an
Incompetent Person, by His Guardian, GILBERT SUTTON, Respondent
and Cross Appellant.
Nos. 4127 and 4128
November 4, 1959 345 P.2d 772
Department No. 1.
Allegedly incompetent seller brought action by his guardian against buyer and his assignee
to rescind contract of sale of metal press and for damages for loss of use of press. The lower
court entered judgment rescinding contract of sale and awarding damages for loss of use of
press, and the assignee appealed, and the seller cross-appealed. The Supreme Court,
McNamee, C. J., held that evidence sustained finding of District Court that seller was
mentally incompetent at time of execution of contract of sale and that therefore contract
should be canceled.
Judgment affirmed as to each appeal.
(Petition for rehearing denied December 10, 1959.)
C. B. Tapscott, of Reno, for Appellant and Cross Respondent.
Sinai & Sinai, of Reno, for Respondent and Cross Appellant.
1. Contracts.
Question whether there is mental capacity to contract is a question of fact to be resolved in light of
surrounding circumstances.
2. Contracts.
Mental incapacity that affects validity of a contract must be of the time in which the transaction occurs,
regardless of previous or subsequent insanity.
3. Sales.
In action by allegedly incompetent seller by his guardian against buyer and his assignee to rescind
contract of sale of metal press, and for damages for loss of use of press, evidence sustained trial court's
finding that allegedly incompetent seller was mentally incompetent at time of execution of contract of sale
and that therefore contract should be canceled.
4. Mental Health.
contract of sale of metal press and for damages for loss of use of press, trial court, after finding that seller
had right to disaffirm the contract, could require assignee to pay seller the rental value of the press during
the time that assignee and buyer had possession of the press.
5. Mental Health.
contract of sale of metal press and for damages for loss of use of press, trial court properly awarded seller
only $125 a month for loss of use of press, though it had been stipulated at pre-trial hearing by counsel for
the parties that rental value of press was $300 a month, and no evidence pertaining to value of loss of use
of press was presented to trial court, where case was at issue September 8, 1953, and trial did not take
place until July 2, 1958, and during pendency of case buyer's assignee had six different counsel. NRCP
16.
OPINION
Heward has appealed from a judgment rescinding a contract of sale of a metal press and
awarding Sutton damages in the sum of $9,312.50 for his loss of use of said press. Sutton
filed a cross-appeal contending that the damages awarded him are inadequate.
On December 14, 1951, James Sutton, by a contract of sale, sold a metal press to George
Cook for $2,500. The bill of sale was deposited in escrow with First National Bank, which
was directed to receive the purchase price in installments on behalf of the seller and to deliver
the bill of sale to the purchaser upon receipt in full of the purchase price. The metal press was
of the value of $4,500 at the time of sale, according to the findings of the trial court.
value of $4,500 at the time of sale, according to the findings of the trial court.
On March 27, 1952, Gilbert Sutton, as guardian of the person and estate of James Sutton,
incompetent, gave notice in writing to Cook of rescission of said contract of sale and of
demand for return of the press. The press was not returned and thereafter Cook sold his
interest in the contract to Heward.
1
This action was then commenced against both Cook and
Heward, but Cook is not a party to this appeal.
Heward's main contention on this appeal relates to the sufficiency of the evidence to
support the finding that James Sutton was on December 14, 1951 mentally incompetent to
enter into the contract of sale.
The record discloses without contradiction that James Sutton had a history of
incompetence since 1947. He was first hospitalized at Livermore Sanitarium for mental
illness in July 1947. He was then hospitalized for a month and a half at the Sansum Clinic
where his illness was diagnosed as paranoiac psychosis. Thereafter, from May 2, 1949 to July
30, 1949, he again was a patient at Livermore Sanitarium, his illness diagnosed as
schizophrenia paranoid type. After July 30, 1949 he was at liberty to roam about the country
and did so until his commitment to the Nevada State Hospital in March 1952 as a chronic
schizophrenic paranoid type, where he has been confined ever since. While he was at large,
he spent some time in Washington, D. C. and at various places on the west coast.
The testimony of Dr. Sidney J. Tillim, superintendent and medical director of Nevada
State Hospital, was received without objection and was positive to the effect that James
Sutton, on December 14, 1951 at the time he executed the contract of sale, and for several
years prior thereto was mentally incompetent because of insanity. This testimony was based
upon not only personal observation and examination (he first met James Sutton in February or
March of 1947) but also the records of the subject's medical history.
Dr. Tillim's conclusions were corroborated by at least one other witness.
____________________

1
We are not concerned with the question of whether Heward was a purchaser for value without notice.
one other witness. No expert testimony to the contrary was offered or received in evidence.
[Headnote 1]
Contractual capacity is a question of fact to be resolved in the light of the surrounding
circumstances. Hawkins v. Randolph, 149 Ark. 124, 231 S.W. 556.
[Headnote 2]
The mental incapacity that affects the validity of a contract must be of the time in which
the transaction occurs, regardless of previous or subsequent insanity. 17 C.J.S., sec. 133a., n.
22-24.
[Headnote 3]
We hold there is sufficient evidence to support the court's finding of mental incompetence
existing at the time of the execution of the contract of sale and that, therefore, the action of
the court in decreeing that said contract be canceled and annulled and of no force and effect
was proper.
Counsel for appellant has conceded that the crux of this entire case is whether or not the
respondent was insane on December 14, 1951 and that the other questions or problems
arising in connection therewith are merely incidental to the main issue.
There are, however, still other matters which require our consideration.
[Headnote 4]
The court having found that respondent had the right to disaffirm the contract, it could
then require appellant to pay respondent the rental value of the metal press during the time
appellant and Cook had possession of the same. Allenbach v. Ridenour, 51 Nev. 437, 279 P.
32. This principal of law seems to be conceded by both parties. But a question arises as to the
ascertainment of such value.
At a pre-trial hearing before the court it was stipulated by the counsel for the parties that
the rental value of the metal press was $300 per month.
2
Because of such stipulation no
evidence pertaining to the value of respondent's loss of use of said press was presented
to the trial court.
____________________

2
It was suggested in the briefs that counsel for appellant agreed to this figure in order to give more weight to
his contention that he could have made $40,000 in the use of the metal press.
such stipulation no evidence pertaining to the value of respondent's loss of use of said press
was presented to the trial court. The court in its written decision stated that plaintiff is
entitled to rent from December 14, 1951 not at the rate of $300 per month but at the rate of
$125 per month, which sum is reasonable under all the circumstances, and made findings to
correspond. Its judgment based on such findings awarded respondent damages in the sum of
$9,312.50 for loss of use by respondent of said metal press from December 14, 1951 to
February 28, 1958, the date of the judgment. Respondent claims this to be error because the
trial court should have allowed a per mensem of $300 pursuant to the stipulation. Appellant
argues that, because the court failed to adopt the stipulation as made by the parties, it in effect
was giving relief against the same which requires the entire stipulation to be set aside.
We cannot agree with either contention. Rule 16 NRCP gives the court power to modify
stipulations to prevent manifest injustice.
[Headnote 5]
While the date of the pre-trial conference when the stipulation as to rental value was made
had to be some time prior to the date of trial, the record does not disclose that date. However,
it does show that the complaint was filed April 24, 1952; that the case was at issue September
8, 1953; that the trial did not take place until July 2, 1958; that during the pendency of the
case in the court below, appellant had six different counsel.
3
Under such circumstances the
trial court properly could have concluded that the delays were unforeseeable at the time the
stipulation was made and that to prevent manifest injustice it was necessary to reduce the
amount of the monthly rental that the parties theretofore had agreed was reasonable.
Appellant's claim of offset unrelated to any act of respondent or of respondent's guardian
in his representative capacity is without merit.
____________________

3
On appeal, two other counsel at separate intervals of time have represented appellant.
As to each appeal the judgment is affirmed. Each party will pay his own costs on appeal.
____________
75 Nev. 457, 457 (1959) Intercoast Mutual Live Ins. Co. v. Andersen
INTERCOAST MUTUAL LIFE INSURANCE COMPANY and INTERCOAST
INSURANCE ASSOCIATION, Appellants, v. LOIS W. ANDERSEN, Respondent.
No. 4192
November 5, 1959 345 P.2d 762
Action to recover under a hospitalization policy. The lower court entered judgment
adverse to insurers and they appealed. The Supreme Court, Badt, J., held that where an
accident and hospitalization policy provided that coverage existed only for the term during
which the policy was in force and terminated on the last day for which insurance premiums
had been paid, but that such termination shall be without prejudice to any claim originating
prior thereto, such policy covered insured's claims for hospitalization and other expense
based on an accident which occurred during policy coverage, for a period not only to date of
termination of the policy, but for a period thereafter during which such expenses were
incurred as a result of the accident.
Affirmed.
Gray and Young, and James R. Brooke, of Reno, for Appellants.
Stewart, Horton, Campbell and Free, of Reno, for Respondent.
1. Insurance.
Where an accident and hospitalization policy provided that coverage existed only for the term during
which the policy was in force and terminated on the last day for which insurance premiums had been paid,
but that such termination shall be without prejudice to any claim originating prior thereto, such policy
covered insured's claims for hospitalization and other expense based on an accident which occurred during
policy coverage, for a period not only to date of termination of the policy, but for a period thereafter during
which such expenses were incurred as a result of the accident.
2. Insurance.
Where a hospital liability policy provided benefits for each particular physical disability arising from a
separate and distinct cause, an insured was entitled to benefits under such policy for the expenses incurred
following fracture of his leg, while engaged in calisthenics, even though a possible weakened condition of
the leg due to a stainless steel screw inserted in the bone after a first fracture might have contributed to the
second fracture.
3. Insurance.
The term insured as used in a hospitalization policy was simply descriptio personae and could not be
deemed to apply to an insured only in the technical character that would automatically exclude him from
benefits for hospitalization expenses after lapse of the policy arising out of an accident which occurred
prior to the lapsing of the policy.
OPINION
Respondent's assignor, Royal Stewart, was injured in a skiing accident February 3, 1957
and sustained a spiral fracture of the bones of the left leg. Hospitalization, medical treatment,
discharge, and return to his usual pursuits followed. He was at the time of his accident
covered by the provisions of an insurance policy issued by appellants, and was paid by
appellants under the terms of his policy. This policy lapsed November 10, 1957 for failure to
pay premiums.
On October 12, 1957, some eight months after the first injury, but a month before the
policy lapsed, Mr. Stewart, while engaged in calisthenics in preparation for the coming ski
season, slipped and fell, causing a transverse fracture of the same leg. He entered St. Mary's
Hospital in Reno on that date and remained there until October 16, 1957.
there until October 16, 1957. It was not until November 29, 1957 that X-ray photographs
demonstrated the fracture. On January 2, 1958 he entered Washoe Medical Center for
treatment and surgery. Appellants refused to pay hospital, surgical, and other benefits under
the policy accruing after November 10, 1958 on the ground that the policy had lapsed on such
date, that his claim had not originated prior to that date, that the second fracture was in part
caused by the first fracture, and accordingly did not arise from a separate and distinct cause,
and was not suffered directly and independently of all other causes. Each of such contentions
was based on sundry exclusionary clauses in the policy.
The issues before the district court were confined entirely to a construction of the policy
clauses involved. The learned trial judge, before whom the case was tried without a jury,
construed these clauses in favor of the plaintiff, and the two defendant insurance companies
have appealed from the resulting judgment.
The policy in question contains various conditions, restrictions, and limitations recited in
the several sections of the instrument. These occur (1) under the general provisions, (2) under
the hospitalization section, (3) under the hospitalization medical section, (4) the surgical
section, and (5) the accident expense section.
Appellants contend that certain clauses or expressions in each one of these sections
exclude plaintiff's assignor from the coverage claimed, or otherwise negative appellants'
liability. It becomes necessary to examine each one of the provisions in question.
[Headnote 1]
(1) The general provisions. These provide (in general, specific, repeated and redundant
verbiage) that the coverage exists only for the term during which the policy is in force and
terminates on the last day for which the insurance premiums have been paid; but that such
termination shall be without prejudice to any claim originating prior thereto.
We have supplied the emphasis of the clause subject to this phase of the dispute. As noted
in our recital of the facts, the policy terminated November 10, 1957.
the facts, the policy terminated November 10, 1957. The accident occurred October 12, 1957,
during the policy coverage. Hospitalization, treatments, and other expense covered a period
not only to November 10, 1957, but also four days from January 2, 1958 until January 6,
1958. Appellants contend that if the claim originates subsequently to termination no benefits
may be provided and that it is obvious that claims do not originate until the insured receives
the necessary hospitalization or surgical services; that here, since the services were rendered
after the expiration of the policy, no valid claim for such services could be asserted.
In support of this contention appellants rely upon Van Zanten v. National Casualty
Company, 333 Mich. 28, 52 N.W.2d 581, which contains language appearing to support this
contention, saying that claims for hospital services, after the date of the termination of the
policy (though growing out of an accident occurring during the coverage period), did not
originate prior to the termination of the policy because such provision, we think, must be
construed as having reference to the benefits accruing while the insurance was in effect.
Appellants clinch the reasoning of Van Zanten in the following language: In conclusion,
respondent is obviously confused over the use of the word claim' throughout the policy.
Perhaps it should be pointed out that the accident gives rise to the disability, which in turn
gives rise to the loss, which in turn gives rise to the claim * * *. It is the claim which must
originate prior to the termination of the policy, not merely the accident and the resulting
disability. In answer to a question from the court during the oral argument, appellants
forcefully asserted their contention as follows: Question. If an insured is injured on the first of
the month, requiring hospitalization and treatment to the tenth of the month, but the term of
the policy expires on the fifth of the month, it is your contention that the company is liable
only for the hospitalization up to the fifth but not for the hospitalization from the fifth to the
tenth? Answer. Yes.
Although some of the facts appearing in Van Zanten and some of the provisions of the
Van Zanten policy differ from those in the instant case, it must be conceded that on the
whole the language used by the Michigan court would appear to support appellants'
argument.
and some of the provisions of the Van Zanten policy differ from those in the instant case, it
must be conceded that on the whole the language used by the Michigan court would appear to
support appellants' argument. Other cases, however, are not in accord. The general statement
of the text writer found at 45 C.J.S. 977, Insurance, sec. 897, is:
Where an accident policy is in full force and effect when insured sustains an accidental
injury, his cause of action arises immediately, regardless of whether the policy is kept alive by
subsequent payment of premiums, and he is entitled to recover the full amount of indemnity
provided.
The text is supported by reference to American Casualty Company v. Horton
(Tex.Civ.App.), 152 S.W.2d 395, in which the court said, id. 399:
The defendant's second proposition is that, because plaintiff only paid premium sufficient
in amount to keep the policy alive for two months after the date of the accident, he was
entitled to only two months' indemnity, or $100. To this, we cannot agree. The policy being in
full force and effect when plaintiff was accidentally injured, resulting in total disability, his
cause of action immediately arose, and he was entitled to recover the full amount of
indemnity provided, irrespective of whether or not the policy was kept alive by the
subsequent payment of premiums. (Emphasis supplied.) As here applied we see no
distinction between the originating of a claim and the arising of a cause of action. When the
cause of action arises, the claim originates. It may be noted that under Nevada Rules of Civil
Procedure, which follow the Federal Rules, we have in virtually all instances substituted the
expression plaintiff's claim for the expression in the old civil practice act statement of a
cause of action. Rule 7(a) NRCP requires the filing of a complaint and Rule 8(a) provides
what shall be contained in such a claim for relief. Under Rule 8(b) the defendant must state
his defense to such claim. Under Rule 8(e) statements of a claim may be made alternately
or hypothetically. Thus under the federal rule the word claim is used to denote the facts
which give rise to a right enforceable in the courts.
which give rise to a right enforceable in the courts. Original Ballet Russe v. Ballet Theatre, 2
Cir., 133 F.2d 187, 189. And the use of the term claim in place of cause of action has in
many instances broadened and liberalized the latter term. See White v. Holland Furnace Co.,
Inc., D.C., 31 F.Supp. 32.
Our conclusion that respondent's claim originated while the policy was in force is
reinforced by provisions appearing under other sections of the policy. Under the
hospitalization section providing coverage for amounts charged for drugs, X-rays, laboratory
examinations, and other hospital services a typewritten provision added to the printed policy
reads: The hospitalization benefits will be renewed when * * * the dates of hospital
discharge and readmission are separated by a return to active full-time work * * *.
Under the accident expense section, if other coverage does not fully indemnify the insured
for the treatment for his accidental injuries, there is further indemnification up to a maximum
of $300. While it is true that this provision is made dependent upon the fulfillment of all
other conditions of the policy, this additional coverage is available if the surgical or hospital
treatment commences within 90 days after the injury. No reference is made to a
commencement date as of the originating of the claim.
[Headnote 2]
(2) Hospitalization section. Exclusion from the benefits under this section is asserted by
appellant by reason of the provision that the benefits therein provided are for each particular
physical disability arising from a separate and distinct cause. This contention is based upon
a single statement on the part of the doctor who attended respondent's assignor. The doctor
testified on direct examination that the accident was a new fracture of the leg on or about
October 12, 1957, and was caused by whatever exercise he was doing at home in the way of
calisthenics; that the presence of the stainless steel screw [inserted in treatment of the first
fracture] did not fracture the leg, but that whatever exercise he was doing fractured the leg."
doing fractured the leg. On cross-examination he testified that the bone had fully healed
between the time of the June fracture and the time of the second fracture in October; that for
all practical purposes the bone heals so as to become as strong after the fracture as it was
before; that the insured is not a light person and that the doctor remembered seeing him
walking up and down the street on his own for three and one-half months with no
disturbance in the leg; that it was true that there is some absorption around the threads of the
steel screws and that the screw caused the bone to absorb and give it a weakened area in the
bone itself. He was then asked: Q. That was probably a contributing factor to the [second]
fracture at that time? A. It was a contributing factor.
By reason of the testimony that the stainless steel screw inserted after the first fracture
contributed to the second fracture, it is contended that the latter did not arise from a
separate and distinct cause. A careful reading of the doctor's testimony, however, indicates
that he was describing a possible weakened condition of the leg that would make it more
susceptible to a fracture if subjected to a sufficient straina condition rather than a cause.
See Mutual Life Insurance Co. v. Dodge, 4 Cir., 1926, 11 F.2d 486, 59 A.L.R. 1290. This,
nonetheless, left the second fracture as arising from a separate and distinct cause, namely, the
calisthenics in which Mr. Stewart was engaging. In any event, this phase of the problem
requires a construction of the policy clause involved, and we think it proper to apply the rule
that the ambiguity, if any, should be resolved in favor of the insured. Ismert-Hincke Milling
Co. v. American Credit Indemnity Co., 8 Cir., 224 F.2d 538. We accordingly find no error in
the trial court's construction of the provisions of the hospitalization section to hold that the
coverage applied.
This is reinforced by the provisions of the general section to the effect that the termination
provisions shall be without prejudice to any claim originating prior thereto. It is also
reinforced by the provision in the hospitalization section to the effect that the
hospitalization benefits will be renewed when the dates of hospital discharge and
readmission are separated by return to active full-time work.
hospitalization section to the effect that the hospitalization benefits will be renewed when the
dates of hospital discharge and readmission are separated by return to active full-time work.
In this respect Mr. Stewart testified that after he was discharged by Dr. Becker he returned to
full-time activities; that all the braces had been removed; that he was walking on his leg; that
in July he helped move the office furniture (cabinets and desks, etc.) downstairs from his
former upstairs location in the office building, and had no difficulties with his leg until the
second fracture of October 12.
3. Hospitalization medical section. This provides for daily benefits when an insured is
entitled to benefits under the hospitalization section. As we hold contrary to appellants'
contentions with reference to the hospitalization section, it automatically follows that benefits
under the hospitalization medical section apply.
4. Accident expense section. This provides for an additional indemnity up to $300 if the
insured is not otherwise fully indemnified. It is challenged because it applies only when the
injury is suffered directly and independently of all other causes. We have above held that
such was the case despite the doctor's testimony that the screw inserted in the earlier fracture
contributed to the second fracture. The trial court's conclusion that plaintiff's assignor was
likewise entitled to the benefits of this section was accordingly without error.
[Headnote 3]
Appellants place emphasis on the repeated use of the word insured as being entitled to
benefits. This they connect with the provisions fixing the time when the policy lapsed after
which respondent was again hospitalized. They thus conclude that respondent was not the
insured at the time. We think however that the term the insured as thus used in the policy
was simply descriptio personae and was not intended to apply to respondent only in the
technical character that would automatically exclude him from benefits arising out of the
accident which occurred prior to the lapsing of the policy.
The district court's judgment in favor of respondent was based upon findings that listed in
detail the items of recovery to which plaintiff was entitled under the several sections of the
policy. No error is asserted in the tabulation other than the contention that they are all within
the exclusionary provisions of the contract. Such contentions we have held to be without
merit.
____________
75 Nev. 465, 465 (1959) Houser v. Dist. Ct.
ROBERT C. HOUSER and THOMAS J. LaGESS, Petitioners, v. FOURTH JUDICIAL
DISTRICT COURT of the State of Nevada in and for the County of Elko, Respondent.
No. 4245
November 6, 1959 345 P.2d 766
Original proceedings in prohibition to restrain Fourth Judicial District Court from
proceeding with trial of defendants on charge of grand larceny for allegedly stealing carcass
of dead bovine animal. The Supreme Court, Pike, J., held that statutory provision that every
person who shall feloniously steal any cow, bull, steer, calf, or any one or more head of cattle
not his own property but belonging to another person shall be deemed guilty of grand larceny
did not cover alleged theft of carcass of dead cow.
Writ granted.
Charles B. Evans, Jr., of Elko, for Petitioner Houser.
Wright & Eardley, of Elko, for Petitioner LaGess.
Joseph F. McDaniel, District Attorney, Elko County; Roger Foley, Attorney General, of
Carson City, for Respondent.
1. Larceny.
Statutory provision that every person who shall feloniously steal any cow, bull, steer, calf, or any one or
more head of cattle not his own property but belonging to some other person shall be deemed guilty of
grand larceny is supplemented by statutory provision that every person who shall feloniously steal personal
goods or property of another of value of $100 or more shall be deemed guilty of grand larceny. NRS
205.220, 205.225, subd. 1.
2. Larceny.
Statutory provision that every person who shall feloniously steal any cow, bull, steer, calf, or any one or
more head of cattle not his own property but belonging to another person shall be deemed guilty of grand
larceny did not cover alleged theft of carcass of dead cow. NRS 205.225.
3. Larceny.
Amended information which failed to allege that value of carcass of dead cow allegedly stolen by
defendants was $100 or more did not charge defendants with grand larceny and therefore did not charge
public offense triable in District Court. NRS 205.220, 205.225, subd. 1.
4. Criminal Law.
Prosecution for theft of property less than $100 in value should be conducted by proceedings had in
justice court. NRS 205.220.
5. Criminal Law.
Where amended information failed to charge elements of offense of grand larceny or any other felony or
gross misdemeanor, Fourth Judicial District Court was without jurisdiction to proceed with trial of
defendants upon the amended information.
OPINION
Petition for a writ of prohibition restraining the trial court from proceeding with the trial of
petitioners herein on the charge of grand larceny. Petitioners contend that the trial court is
without jurisdiction for the reason that the amended information does not charge a public
offense under the laws of this state.
On November 5, 1958 petitioners were arrested in Elko County, Nevada, and on December
10, 1958 their preliminary hearing was had before the justice of the peace of Elko Township
at Elko.
The amended complaint filed in the justice court charged that on November 4, 195S the
defendants committed the felony of grand larceny in that the defendants did willfully kill
a cow or steer which was running at large on the range, with the intent to defraud the
owner thereof and to appropriate the carcass of said animal to their own use.
charged that on November 4, 1958 the defendants committed the felony of grand larceny in
that the defendants did willfully kill a cow or steer which was running at large on the range,
with the intent to defraud the owner thereof and to appropriate the carcass of said animal to
their own use. Such crime was alleged to have been committed in the vicinity of Jarbidge in
Elko County. Each of the defendants, petitioners herein, was held to answer and released on
bail.
On December 18, 1958 the district attorney filed an information in the district court
charging the defendants with having committed a felony, grand larceny, in that they killed a
cow or steer, which reiterated the substance of the language of the amended complaint filed in
the justice court. The petitioners were arraigned before the district court upon the charge
contained in such information and, upon the entry of their pleas of not guilty, the trial was set
for September 14, 1959. The defendants have been at liberty on bail ever since the trial
setting. On September 11, 1959 the district attorney filed an amended information charging
that the
* * * defendants * * * did * * * steal, take and carry away the carcass of a bovine animal
(cow, bull or steer), the personal property of another, * * * with the intent to appropriate the
same to their own use * * *. On September 14, 1959 counsel for defendants filed a motion to
quash the amended information and to dismiss the action, and also a demurrer to the amended
information. Among the grounds of demurrer urged was that the amended information does
not state a public offense under any provisions of the laws of the State of Nevada of which
the district court has jurisdiction. On September 14, 1959 the court disallowed defendants'
demurrer and denied said motion. The trial court at that time required the defendants to plead
to the amended information. Each defendant pleaded not guilty.
Counsel for respondent states that the amended information was drawn under NRS
205.225(1), the pertinent portions of which read as follows: Every person who shall (1)
Feloniously steal, take and carry, lead, drive or entice away any * * * cow, bull, steer, calf,
* * * or any one or more head of cattle * * * not his own property but belonging to some
other person, * * * shall be deemed guilty of grand larceny, * * *."
any one or more head of cattle * * * not his own property but belonging to some other person,
* * * shall be deemed guilty of grand larceny, * * *.
Respondent's counsel contends that this section of the Nevada penal statutes applies to the
theft of the carcass of a dead cow as well as to the stealing of the live animal, and relies upon
the decision of this court in State v. Murray, 67 Nev. 131, 215 P.2d 265, 216 P.2d 606, in
support of his position. However, this point was not raised or decided in State v. Murray,
supra, and the decision in that case cannot be taken as authority for the proposition urged by
respondent.
In opposition to respondent's contention, petitioners cite State v. Hedrick, 272 Mo. 502,
199 S.W. 192, L.R.A. 1918 C, 574, where the court construed a statute which provided that
the theft of certain designated species of animals including cattle would constitute grand
larceny. The court there held that the statute did not apply to the theft of such animals when
dead, citing Bishop on Statutory Crimes (3d ed., p. 426, n. 13).
In People v. Smith, 112 Cal. 333, 339, 44 P. 663, 665, in construing a similar statute,
making it grand larceny to steal a cow or steer, the court said, To make the stealing of one of
the animals named, however, grand larceny, the animal must be a live one, and not a dead
carcass. It is true, if one should kill one of the animals for the purpose of stealing it, and then
take and carry away the whole or a part of the body, it would be grand larceny. But if one
should go into a field and find a dead animal lying there, and should take and carry away the
body, or a part of it, it would not be grand larceny, unless the part carried away was of the
value of $50 or more. See also People v. Ojeda, 132 Cal.App. 593, 23 P.2d 316.
[Headnote 1]
In enacting NRS 205.225 the legislature designated certain unlawful acts pertaining to the
cattle of another, including theft of such cattle, as grand larceny. The provisions of this
comprehensive statute are supplemented by the provisions of NRS 205.2201 making it the
offense of grand larceny to steal, take and carry away, the personal goods or property of
another of the value of $100 or more.
by the provisions of NRS 205.220
1
making it the offense of grand larceny to steal, take and
carry away, the personal goods or property of another of the value of $100 or more. NRS
205.225 makes the theft of the animal, regardless of value, the crime of grand larceny when
the other elements of the statute are violated.
[Headnotes 2-4]
By reason of the foregoing we hold that the theft of the carcass of a dead cow is not
covered by the provisions of NRS 205.225, and that the amended information does not charge
the defendants with grand larceny under the provisions of NRS 205.220, as the value of the
carcass is not alleged to be of the value of $100 or more. Accordingly, we also hold that the
amended information does not charge a public offense against defendants triable in the
district court. As this prosecution is for a felony, and by information, we do not decide
whether or not an offense of less grade than felony or gross misdemeanor is contained in the
charge as stated in the amended information. A prosecution for the theft of property less than
$100 in value would be conducted by proceedings had in the justice court.
[Headnote 5]
In Re Waterman, 29 Nev. 288, 89 P. 291, 11 L.R.A., N.S., 424, this court held that there
can be no conviction for or punishment of a crime without a formal and sufficient accusation
and that in the absence thereof a court acquires no jurisdiction whatever and, if it assumes
jurisdiction, the trial and conviction would be a nullity. As the amended information fails to
charge the elements of the offense of grand larceny or any other felony or gross misdemeanor,
the trial court is without jurisdiction to proceed with the trial of defendants upon such
amended information.
____________________

1
205.220. Every person who shall feloniously steal, take and carry away, lead or drive away the personal
goods or property of another, of the value of $100 or more, shall be deemed guilty of grand larceny, and upon
conviction thereof shall be punished by imprisonment in the state prison for any term not less than 2 years nor
more than 14 years.
It Is Ordered that the peremptory writ of prohibition issue, and that the trial court be
restrained from proceeding with the trial of defendants upon said amended information, and
the trial court is directed to exonerate the bail of defendants.
____________
75 Nev. 470, 470 (1959) Warner v. Seaboard Finance
ELWOOD A. WARNER, dba Nevada Sheet Metal Shop and GEORGE COLFER,
Appellants, v. SEABOARD FINANCE COMPANY, a Delaware Corporation, Qualified to do
Business in the State of Nevada, Respondent.
No. 4195
November 10, 1959 345 P.2d 759
Appeal from Judgment of the Second Judicial District Court, Washoe County; Grant L.
Action by assignee of home modernization contract, assigned under master dealer's
contract, seeking recourse against assignor upon homeowner's refusal to make payments on
the assigned contract. The lower court entered judgment for assignee, and assignor appealed.
The Supreme Court, Badt, J., held that evidence sustained findings that agents of assignor
made misrepresentations and false sales statements in violation of master dealer's contract,
and that assignor was liable therefor, and hence that assignor breached warranties and
guaranties of master dealer's contract, so that recourse against assignor was justified.
Affirmed.
Frank R. Petersen, of Reno, for Appellants.
Springer, McKissick & Hug, of Reno, for Respondent.
Assignments.
In action by assignee of home modernization contract, assigned under master dealer's contract, seeking
recourse against assignor upon homeowner's refusal to make payments on assigned contract, evidence
sustained findings that assignor's agents made misrepresentations and false sales statements in violation of
master dealer's contract, and that assignor was liable therefor, and hence that assignor breached warranties
and guaranties of master dealer's contract, so that recourse against assignor was justified.
OPINION
Appellants have appealed from a judgment in favor of respondent growing out of a
contract designated Home Modernization Dealer Agreement. Appellants are hereinafter
referred to as Nevada Sheet Metal and respondent is referred to as Seaboard.
Nevada Sheet Metal, under the written contract, referred to by counsel as the master
agreement, sold to Seaboard a contract entered into between Nevada Sheet Metal and
Kenneth M. Stone and Norma Stone for the installation of a metal storm door, windows, and
awnings. The amount of the sale from Nevada Sheet Metal to Stone was $918. This however
was made payable in 36 consecutive monthly installments of $33.15 each, which aggregated
$1,193.40 under the installment contract. Stone having repudiated the contract and having
refused to make payments for the reasons hereinafter discussed, Seaboard commenced the
action against Nevada Sheet Metal for the recovery of $918, its advance under the Stone
contract, and $496.74, its advance under a second contract referred to as the Vernon contract,
together with interest, costs, and a reasonable attorney fee. We first devote our attention to the
Stone contract.
The master contract was executed in consideration of Seaboard's purchase of the Stone and
Vernon contracts and pursuant to Nevada Sheet Metal's desire to sell to Seaboard sundry
other notes, purchase money contracts, sales agreements, etc. The sale and assignment to
Seaboard was first stated to be without recourse. It then recited a number of agreements and
warranties on the part of Nevada Sheet Metal and provided that in the event of the breach
by the latter of any of its warranties with reference to modernization contracts entered
into by it, Seaboard's waiver of recourse against Nevada Sheet Metal was abrogated,
whereupon Nevada Sheet Metal unconditionally guaranteed the full performance of all of
the terms and conditions of such contracts.
recited a number of agreements and warranties on the part of Nevada Sheet Metal and
provided that in the event of the breach by the latter of any of its warranties with reference to
modernization contracts entered into by it, Seaboard's waiver of recourse against Nevada
Sheet Metal was abrogated, whereupon Nevada Sheet Metal unconditionally guaranteed the
full performance of all of the terms and conditions of such contracts.
Among others, Nevada Sheet Metal warranted (1) that all of its contracts would be valid
and enforceable deferred payment obligations in accordance with the terms of the contracts
with the respective purchasers; (2) that each of such contracts would be free from setoff or
counterclaim of any nature; (3) that each of such contracts had been or would be made in
good faith and actually signed by the purchasers therein named; (4) that the property sold
would not be defective in any particular. Nevada Sheet Metal further covenanted: I (We)
understand that I (we) are fully responsible for the Home Modernization activity of all sales
personnel, that ethical and proper selling practice will be followed, and that immediate
attention will be given all complaints involving materials, workmanship, or sales
representations.
Asserting false and fraudulent representations and defective materials and workmanship,
Stone refused to make payments to Seaboard on the assigned contract, and Seaboard
thereupon sought by its demand upon Nevada Sheet Metal and its subsequent suit against
Nevada Sheet Metal its recourse against the latter.
Its complaint alleged that in violation of its responsibility for all sales personnel and for
the following of ethical and proper selling practices, Nevada Sheet Metal's salesmen made
false and fraudulent sales representations, in that they told Stone that, because of his dynamic
appearance and personality, if they were allowed to place certain improvements on his house,
including storm doors, storm windows and awnings, and if he would appear on a weekly
television show in a testimonial capacity, and would permit the home to be displayed as a
model home, that no payments would be expected under the contract and that the
installation would be made in consideration of the use of Stone's premises as a model
home and for television appearances.
expected under the contract and that the installation would be made in consideration of the
use of Stone's premises as a model home and for television appearances.
Seaboard further asserted a violation of the warranty that the contract would be valid and
enforceable and that it had been made in good faith, as the salesmen perpetrated a fraud upon
the Stones and induced them to sign the installment contract in blank, without any recital of
any sums payable under it, and upon the representation that it was merely an authorization to
proceed and a receipt for the delivery of materials and an acknowledgment of the completion
of the improvements, all of which were necessary to support a requisition for delivery of the
materials; that Nevada Sheet Metal had further violated the warranty that the property would
not have been misrepresented to the purchaser; and that the property installed was defective
in many particulars and the workmanship unsatisfactory.
These and other allegations of breach were denied by Nevada Sheet Metal and the case
went to trial upon the issues thus made. Stone and his wife, corroborated by other witnesses,
testified to the representations made by Nevada Sheet Metal salesmen and as to the nature of
the work done, and the court, trying the case without a jury, filed a written opinion stating
that the evidence clearly showed that the activities of Nevada Sheet Metal salesmen violated
the terms and conditions of the master dealer agreement, and that the Stones thought they
were signing simply an authorization to proceed with the work. Formal findings of fact
followed to the effect that agents of Nevada Sheet Metal made misrepresentations and false
sales statements in violation of the master dealer's contract; that Nevada Sheet Metal was
liable and responsible therefor, and that as a result Nevada Sheet Metal had failed to perform
the warranties and guaranties of the master dealer's contract and had breached said contract to
plaintiff's damage. Separate findings were made with reference to the Stone contract and with
reference to the Vernon contract. The court concluded that recourse against Nevada Sheet
Metal was justified. Entry of judgment followed in the sum of $918 on the former, $496.74
on the latter, and for interest, costs, and attorney fees.
on the former, $496.74 on the latter, and for interest, costs, and attorney fees.
As assignments of error in support of this appeal, Nevada Sheet Metal asserts insufficiency
of the evidence to support the findings above outlined. We find no support for this
assignment. Although the evidence is conflicting in some respects and although the testimony
of plaintiff's witnesses was to some extent weakened on cross-examination, there is ample
substantial evidence in the record to sustain the findings. The learned trial judge apparently
gave full credence to the testimony of Mr. and Mrs. Stone and other corroborating testimony.
To rehearse such testimony in detail would add nothing to this opinion.
Appellants' briefs are devoted almost entirely to questions of agency and to the contention
that the sales agents of Nevada Sheet Metal were not only without actual authority to make
the representations charged to them but were without any apparent or ostensible authority to
make such representations; that such representations were so unusual and so remarkable as to
have put the purchasers on their guard and made it their duty to inquire as to the sales agents'
authority and good faith and to discover at their own peril whether the principal had
authorized the representations made. We need not pursue the subject. Nevada Sheet Metal, by
the express terms of the master contract, accepted full responsibility for the activity of all
sales personnel and full responsibility that ethical and proper selling practices would be
followed, and that immediate attention would be given to all complaints involving sales
representations. Under the facts as found by the court, with ample support for the findings,
Seaboard was justified, upon repudiation of the contract by the Stones, to seek recourse from
Nevada Sheet Metal.
What we have said with regard to Nevada Sheet Metal's contract with Stone, applies a
fortiori to its contract with Vernon.
The judgment is affirmed with costs.
____________
75 Nev. 475, 475 (1959) Novack & Sons v. Hoppin
ALEX NOVACK & SONS, a California Corporation, and MURPHY JOHNSON,
Appellants, v. PATRICIA HOPPIN, Widow of William Hoppin, PATRICK HOPPIN by his
Mother and Guardian Ad Litem, Patricia Hoppin; BILLY HOPPIN, by his Mother and
Guardian Ad Litem, Patricia Hoppin; CARRIE LYNN HOPPIN, by Her Mother and
Guardian Ad Litem, Patricia Hoppin; and HOLLY ALICE HOPPIN, by Her Mother and
Guardian Ad Litem, Patricia Hoppin, Respondents.
No. 4251
November 10, 1959 345 P.2d 769
Department No. 2.
Proceeding upon motions to dismiss appeal from final judgments based on jury's verdict
entered in the trial court. The Supreme Court held that, where, in extending time for appeal,
district court inadvertently designated October 22, instead of October 12, as end of extended
period, but, had appellant availed itself of the full 30 days for appeal and had district court
then extended time for docketing appeal for the full 90-day period, appellant would have had
until November 12 to docket its appeal, and appellant, which had at all times acted in good
faith to perfect its appeal, required the extension because of inability of court reporter to
prepare transcript prior to October 2, and respondent was not prejudiced by failure to docket
appeal on or before October 13, neglect to do so within the time allowable was excusable,
that failure to furnish respondents with copy of transcript did not warrant dismissal of the
appeal.
On motions to dismiss appeal, motions denied.
Goldwater, Singleton, Dickerson and Miles, of Las Vegas, for Appellant Novack & Sons.
Deaner, Butler and Adamson, of Las Vegas, for Appellant Johnson.
Robert Callister, of Las Vegas, and Melvin Belli, of San Francisco, California, for
Respondents.
District court was without authority to extend period within which record on appeal could be filed and
appeal could be docketed. NRCP 73(g).
Failure to file record on appeal within time allowed by law does not deprive the Supreme Court of
jurisdiction, and, in case of excusable neglect the Supreme Court, in exercise of its discretion, may
disregard the late docketing. NRCP 73(g).
Where, in extending time for appeal, district court inadvertently designated October 22, instead of
October 12, as end of the extended period, but, had appellant availed itself of full 30 days for appeal and
had District Court then extended time for docketing appeal for full 90-day period, appellant would have
had until November 12 to docket its appeal, and appellant, which had at all times acted in good faith to
perfect its appeal, required the extension because of inability of court reporter to prepare the transcript
prior to October 2, and respondent was not prejudiced by failure to docket appeal on or before October 13,
neglect to do so within the time allowable was excusable. NRCP 73(a, g).
An appellant is required to furnish a copy of transcript to counsel for each party appearing separately.
NRCP 75(b, g).
Where important legal questions were involved in an attempt to appeal from judgments in excess of
$225,000, and, at time when original and one copy of transcript was ordered by counsel for one appellant,
it was incumbent upon respondents to order and pay for their own copy if they desired one, but thereafter,
apparently without knowledge of either appellant or respondents, rules were amended to require appellant
to furnish a copy to each counsel for each party appearing separately, failure to furnish copy of transcript
did not warrant dismissal of appeal. NRCP 75.
Where order extending time for filing record on appeal appeared on its face to have been obtained on
behalf of both appellants upon application of named attorney and record was intended to be record on
appeal of both appellants and contained notice of appeal, bond on appeal, and designation of contents of
record on appeal of each appellant, and each appellant had paid his filing fee, and Supreme Court had
found that record on appeal comprised a record applicable to each appellant and had ordered appeals
consolidated for oral argument on record of appeal, one appellant would be considered to have docketed
record on appeal even though attorney, who obtained record on appeal, had previously and subsequently
appeared only in capacity of attorney for other appellant. NRCP 75.
OPINION
On Motion To Dismiss
Per Curiam:
On the 4th day of May 1959 final judgments based on jury verdicts were entered in the
court below in favor of respondents and against appellants. On July 15, 1959 motions to set
aside the verdicts and for new trial were denied by a written order. Thereafter, on the same
day, July 15, 1959, the corporate appellant served and filed its notice of appeal and on July
20, 1959, the individual appellant did likewise.
On August 3, 1959 appellants, upon application of William Singleton as counsel for
defendants (appellants), obtained a written order from the court below extending the time for
filing the record on appeal and docketing appeal to October 22, 1959. As to the corporate
appellant this was nine days more than the permissible period of extension provided by
NRCP 73(g) and it was four days more as to the individual appellant. The corporate appellant
docketed the record on appeal with the clerk of this court on October 22, 1959.
On October 28, 1959, pursuant to the request of appellants, an order was made herein that
the record on appeal filed by the corporate appellant may be used by each and all appellants
with the same force and effect as if each of the appellants individually had filed said record
on appeal as its or his record on appeal.
No copy of the record on appeal was furnished counsel for respondents, but they were
advised that a copy would be available for their use in the Clark County Law Library or at any
other convenient place.
Motion to Dismiss Appeal of Appellant
Alex Novack & Sons, a California Corporation
[Headnotes 1, 2]
Under said Rule 73(g), the last day the district court could have allowed for docketing the
appeal of the corporate appellant was October 13, 1959. The district court was without
authority to extend the period beyond this date. The failure to file the record on appeal within
the time allowed by law does not deprive this court of jurisdiction and in case of excusable
neglect this court, in the exercise of its discretion, may disregard the late docketing.
time allowed by law does not deprive this court of jurisdiction and in case of excusable
neglect this court, in the exercise of its discretion, may disregard the late docketing. Garibaldi
Bros. v. Waldren, 72 Nev. 12, 292 P.2d 356.
[Headnote 3]
If this appellant had availed itself of the full 30 days for appeal as allowed by NRCP 73(a)
and the trial court had then extended the time for docketing the appeal for the full 90-day
period, the appellant would then have had until November 12, 1959 within which to have
docketed its appeal.
It appears from the record herein that the order signed by the district court extending the
time inadvertently designated the time as October 22 instead of October 12 and that the
oversight was not recognized by appellant's counsel until the 21st day of October 1959. No
motion to dismiss was filed herein until November 2, 1959, 11 days after the record was
docketed.
It further appears that an extension of time within which to docket the appeal had been
required because of the inability of the court reporter to prepare the transcript of the testimony
prior to October 2, 1959.
1
It appears that this appellant at all times acted in good faith to
perfect its appeal. The record fails to show that the respondent has in any way been
prejudiced by a failure to docket the appeal on or before October 13, 1959. Under all of these
circumstances we feel that the neglect to do so within the time allowable was excusable.
Respondents contend that the appeal should be dismissed because this appellant failed to
furnish respondent a copy of the record on appeal as required by NRCP 75.
In Tryba v. Fray, 74 Nev. 320, 330 P.2d 499, 500, we stated:
Rule 75 would appear to be in a state of confusion as to the necessity for service upon
opposing parties of a copy of the transcript of testimony included in a record on appeal.
____________________

1
The reporter's charges for preparation of the original transcript and one copy thereof was $1,101.26. Only
one copy had been ordered by appellant, and respondents were informed by the court reporter of such fact before
she started to prepare the same.
copy of the transcript of testimony included in a record on appeal. Rule 75(b) dealing with the
transcript appears clearly to contemplate that no copies need be provided, but that the copy
filed with this court shall be available for the use of the other parties.
Undoubtedly the rule should be clarified to eliminate apparent inconsistencies. Until such
clarification is accomplished it is the view of this court that Rule 75(o) should be read
consistently with Rule 75(b) and that no copy of the transcript in the case need be served
upon opposing counsel.
[Headnote 4]
Since that decision, Rules 75(b) and 75(g) were amended so as to require the furnishing of
a copy of the transcript to counsel for each party appearing separately.
2
These amendments
became effective on October 1, 1959 and it seems that the state of confusion still exists
inasmuch as neither the appellant nor the respondents on October 2, 1959 seem to have had
knowledge of the amendment of the rules at the time the transcript of the testimony was made
available by the court reporter.
[Headnote 5]
The nature of this case involving judgments in excess of $225,000 and containing
important legal questions for a decision forces us to the conclusion that the failure to furnish
the copy of the transcript of trial and proceedings does not warrant the dismissal of the appeal
on this ground under the circumstances herein presented.
The decision in this case recognizing the amendment of Rule 75 is expected to end any
confusion which has heretofore existed regarding the necessity for appellant to deliver a copy
of the reporter's transcript of the evidence to the counsel for each party appearing separately.
____________________

2
When the original and one copy of the transcript was ordered by counsel for appellant on or about July 31,
1959, at that time, under the decision of Tryba v. Fray, supra, it was incumbent upon respondents to order and
pay for their own copy of the reporter's transcript if they desired one, then knowing that only the original and one
copy had been ordered.
Motion to Dismiss Appeal of
Appellant Johnson
What has been said regarding the appeal of Alex Novack & Sons applies as well to the
appeal of Murphy Johnson.
There are two other matters to consider with respect to the Johnson appeal.
[Headnote 6]
Respondents contend that Johnson has not docketed any record on appeal with this court,
unless the record on appeal on file herein is considered the record on appeal for both
appellants.
It is plainly evident from the record that it was intended by the parties to be the record on
appeal of both said appellants (as well as the record on appeal of a consolidated case with
which we are not now concerned). The record contains the notice of appeal, the bond on
appeal, and the designation of contents of record on appeal of each appellant. Also, the filing
fee of each appellant has been paid to the clerk.
This court in making its said order of October 28, 1959 noted the contents of the record on
appeal and finding it comprised a record applicable to each appellant, ordered the appeals
consolidated for oral argument on the one record of appeal in accordance with NRCP 75(b).
The contention that appellant Johnson has not docketed any record on appeal is without
merit.
The order extending time for filing the record on appeal appears on its face to have been
obtained on behalf of both appellants upon the application of William Singleton, their
attorney. The fact that William Singleton theretofore and since has appeared only in the
capacity of attorney for Alex Novack & Sons is not material.
Motions to dismiss are denied.
____________
75 Nev. 481, 481 (1959) State of Nev. v. Johnson
THE STATE OF NEVADA, Appellant, v.
POYDRAS JOHNSON, Respondent.
No. 4193
November 19, 1959 346 P.2d 291
Department No. 2.
Prosecution for unlawful possession of narcotic drugs. From a judgment of conviction and
sentence entered by the trial court, the state appealed. The Supreme Court, McNamee, C. J.,
held that under statute providing that person convicted of possession of narcotics in violation
of state laws after he has previously been convicted of any violation of laws of United States
or of any state, territory, or district relating to narcotic drugs shall be punished by a fine of not
more than $2,000 and by imprisonment for not less than five years or more than ten years,
sentence imposed on defendant, who was convicted on charge of unlawful possession of
narcotic drugs after he had previously been convicted of violation of federal laws relating to
narcotic drugs, of a term of not less than two years nor more than five years and a fine of
$1,000 was below the minimum punishment provided and was erroneous.
Judgment reversed and cause remanded with directions.
Roger Foley, Attorney General, of Carson City, and George Foley, District Attorney,
Clark County, for Appellant.
George E. Franklin, Jr., of Las Vegas, for Respondent.
1. Criminal Law.
Under statute providing that person convicted of possession of narcotics in violation of state laws after he
has previously been convicted of any violation of laws of United States or of any state, territory, or district
relating to narcotic drugs shall be punished by a fine of not more than $2,000 and by imprisonment for not
less than five years or more than ten years, sentence imposed on defendant, who was convicted on a charge
of unlawful possession of narcotic drugs after he had previously been convicted of violation of federal laws
relating to narcotic drugs, of a term of not less than two years nor more than five years and a fine
of $1,000 was below the minimum punishment provided and was erroneous.
years nor more than five years and a fine of $1,000 was below the minimum punishment provided and was
erroneous. NRS 453.210.
2. Criminal Law.
A judgment of conviction and sentence must conform to punishment prescribed by statute. NRS
453.210.
3. Criminal Law.
Supreme Court on appeal has power to direct correction of the sentence which does not conform to the
minimum punishment provided by statute. NRS 177.240, 453.210.
4. Criminal Law.
Where penal statute gives no discretion to trial court in fixing punishment, it is proper for Supreme Court
without remand to modify an erroneous sentence to conform to the statute, but where the trial court does
have discretion in fixing the punishment, Supreme Court must remand the case to the trial court with
directions to correct an erroneous sentence. NRS 177.240, 453.210.
OPINION
This is an appeal by the state from the judgment of the trial court rendered after trial by
jury. Appellant hereinafter is referred to as state and respondent as defendant.
[Headnote 1]
Defendant was convicted of a charge contained in an information that he unlawfully
possessed narcotic drugs and that he had been previously convicted of a violation of the laws
of the United States relating to narcotic drugs. Under NRS 453.210, a person convicted of
possession of narcotics in violation of the laws of this state after he shall previously have
been convicted of any violation of the laws of the United States or of any state, territory or
district relating to narcotic drugs shall be punished by a fine of not more than $2,000 and be
imprisoned in the state prison for not less than five years or more than ten years.
The trial court sentenced the defendant as follows:
* * * that he be punished by imprisonment in the state prison of the State of Nevada for a
term of not less than two years nor more than five years and a fine of $1,000."
not less than two years nor more than five years and a fine of $1,000.
[Headnote 2]
A judgment of conviction and sentence must conform to the punishment prescribed by
statute. Ex Parte McClure, 6 Okl.Cr. 241, 118 P. 591.
The sentence in this case manifestly is a sentence below the minimum punishment
provided by law for the particular offense and is therefore erroneous. State ex rel. Steffes v.
Risjord, 228 Wis. 535, 280 N.W. 680.
[Headnote 3]
This court on appeal has power to direct its correction. Ex Parte Melosevich, 36 Nev. 67,
133 P. 57; Patterson v. Hudspeth, 170 Kan. 30, 223 P.2d 974; Caudill v. State, 9 Okl.Cr. 66,
130 P. 812; NRS 177.240.
[Headnote 4]
Where the penal statute gives no discretion to the trial court in fixing the punishment, it
would be proper for this court without remand to modify the sentence to conform to the
statute. State v. Moore, 48 Nev. 405, 233 P. 523. In this case, however, the applicable statute
does give discretion, limited as it is to the amount of the fine.
Under these circumstances the judgment must be reversed and the cause remanded with
directions to the trial court to correct its judgment within the terms of the law as in its
discretion it may deem proper.
____________
75 Nev. 484, 484 (1959) Fitch v. LaTourrette
LeROY FITCH and IRENE FITCH, His Wife, Appellants, v. GENE LaTOURRETTE,
THOMAS McKEOWN, WASHOE TITLE INSURANCE COMPANY, a Nevada
Corporation, FIRST NATIONAL BANK OF NEVADA, a National Banking Corporation,
SAMUEL F. BEARDSLEY and FLORENCE W. BEARDSLEY, His Wife, and WILLIAM
H. SCHAEFER and GRACE M. SCHAEFER, His Wife, Respondents.
No. 4197
November 25, 1959 346 P.2d 704
Action by vendors of six lots, which were sold under arrangement whereby a house was to
be constructed on each lot, with cost thereof to be financed by bank loans and with deed of
trust in favor of bank upon each lot to be superior to deed of trust of vendors, against bank
escrowee, realtors and builder to recover purchase price on two lots. The lower court held that
vendors were entitled to judgment against builder only and that brokers were entitled to
recover their commission on the two lots, and vendors appealed. The Supreme Court, Badt,
J., held that evidence sustained finding that vendors elected to look to personal credit of
builder and agreed to accept purchase price of each lot out of builder's assignment to him out
of moneys payable to builder under building contract, and that therefore vendors were not
entitled to recover from other parties when builder became insolvent but that brokers were
not entitled to commission on such two lots.
Affirmed in part. Reversed in part.
Ernest S. Brown, of Reno, for Appellants.
Emile J. Gezelin, of Reno, for Respondents Gene LaTourrette and Thomas McKeown.
Sidney W. Robinson, of Reno, for remaining Respondents.
1. Fraud.
In action by vendors of six lots which were sold under arrangement whereby a house was to be
constructed on each lot, with cost thereof to be financed by bank loans and with deed of trust in favor of
bank upon each lot to be superior to deed of trust of vendors, against realtors who allegedly assured
vendors that they were protected by the then deed of trust, when in fact builder was insolvent, evidence
sustained finding that realtors did not make such assurances on occasion of any of the later sales at which
time builder was insolvent and that realtors were not guilty of fraud.
2. Mortgages.
Where six lots were sold under arrangement whereby construction loan for building of house on each lot
was financed through bank with bank's commitment dependent upon its receiving a deed of trust as first
lien on property, vendors, who had a deed of trust on all lots, executed authorization to escrowee to execute
a reconveyance of particular lot involved, vendors did not receive purchase price for lot until final moneys
were made available by bank, and vendors caused reconveyance to be executed and recorded and accepted
in its place an assignment from builder of balance of moneys due builder, vendors upon insolvency of
builder were entitled to only an apparently worthless judgment against builder for purchase price of lots
and were not entitled to recover from any other party to transaction.
3. Mortgages.
In action by vendors of six lots, which were sold under arrangement whereby a house was to be
constructed on each lot, with cost thereof to be financed by bank loans and with deed of trust in favor of
bank upon each lot to be superior to deed of trust of vendors, against bank, realtor's builder and others
involved in transaction, evidence sustained finding that vendors elected to look to personal credit of builder
and agreed to accept purchase price of each lot out of builder's assignment of moneys payable to builder
under his building contract.
4. Brokers.
Where original agreement of sale of six lots negotiated by brokers recognized contemplation of parties
that bank would have to finance construction of dwelling on each lot and provided for payment of
commission to brokers in connection with that transaction but did not fix time for payment, and did not
require down payment on preliminary sale, brokers, who did not demand payment of commissions on sale
of first three lots until money became available to vendors out of respective final bank payments, were not
entitled to commission on two other lots which were conveyed under transaction but for which vendors
were not paid because of insolvency of builder.
5. Appeal and Error; Costs.
Sundry briefs filed in district court had no place in record on appeal and would be disregarded with
reference to apportionment of costs.
OPINION
The parties to the appeal will be referred to by abbreviated names.
Fitch owned six lots in Reno. He sold them through his real estate agents and brokers,
LaTourrette and McKeown, to LaRoque for $13,500 under a written agreement that such sum
was payable on or before 18 months. Deed was executed and recorded. Nothing was paid
down, but LaRoque executed and recorded a deed of trust to secure the entire purchase price.
The contract of sale contained, among others, the following provisions:
1. Buyers contemplate the construction of a dwelling house upon each of the said lots,
the cost thereof to be financed by loans from Union Federal Savings and Loan Association at
Reno, Nevada, or some other lending agency and to give as security for the payment of each
such loan a deed of trust upon the particular lot upon which such improvements are placed
and which said deed of trust shall be superior to the deed of trust of the Sellers to the extent
of monies advanced for such construction costs.
2. Upon the sale of each of the said dwelling house units the Sellers shall be entitled to
receive the sum of two thousand two hundred fifty dollars ($2,250.00) and upon such
payment shall release the lot so sold from the lien of the trust deed securing payment of the
sums due them hereunder.
4. Sellers agree to pay a real estate commission of one thousand, three hundred fifty
dollars ($1,350.00) to LaTourrette & McKeown in connection with this transaction.
The brokers mentioned in paragraph 4 above quoted were not parties to the contract of sale
and there was, at the time, no independent written or oral contract as to when the brokers'
commissions were payable.
Three lots were sold, each as a separate transaction, and in each case a construction loan
was financed through the First National Bank. In each case the bank's commitment was
dependent upon its receiving a deed of trust as a first lien on the property.
commitment was dependent upon its receiving a deed of trust as a first lien on the property. In
each case escrow papers were put through the title company. In each case Fitch executed an
authorization to the title company to execute a reconveyance of the particular lot involved. In
each instance of these three sales Fitch had to wait, not only for the whole construction
period, but until the expiration of the period for filing labor and material liens against the
property, to the end that he was paid his purchase price of the lot (less the commission, which
went directly to LaTourrette and McKeown) out of the final moneys that were made available
by the bank. On each occasion no advance to any extent whatsoever was made by the bank
until the recording of the partial reconveyance by the trustee under Fitch's written instructions
and the execution of a title certificate by the title company to the effect that the bank's deed of
trust was a first lien.
On the occasion of Fitch's execution of the first authorization for the title company to
reconvey he was told by McKeown that he was fully protected by his deed of trust, but that he
ought to be advised by his own attorney. He phoned an attorney, telling him that he wanted
his advice to like extent as if he were protecting his own property. The attorney told him that
he could safely sign the papers. Fitch kept reiterating that McKeown assured him that he,
Fitch, was protected by his deed of trust. On this first sale McKeown admitted that he so
advised Fitch, but explained at the trial that this was because he felt that Fitch was amply
protected by the lien of his deed of trust on the remaining five lots. McKeown insisted,
however, that he had not made such statements on the occasion of any of the later sales.
As noted, there were ample funds to pay Fitch on the first three sales and construction
contracts and likewise to pay out of such money the commissions to the brokers.
[Headnote 1]
The situation arising out of the last two salesthe sales to Beardsley and to Schaefer, gave
rise to the present litigation. Fitch and his wife signed the authorizations for reconveyance.
These papers authorized the title company to record the reconveyance at once.
title company to record the reconveyance at once. Fitch testified that his understanding was
that the papers would not be recorded until his sale price of $2,250 was either on deposit with
the title company for him or the payment definitely assured. McKeown denies this. He
testified that he told Fitch that these last sales would go through the regular normal
procedures, the same as the former sales. Fitch testified that it was agreeable to him that
payment to him would be delayed until the expiration of time for filing liens, but that it was
not agreeable to him to waive his first lien without assurance of payment. So far, then, as this
appeal attacks the judgment absolving LaTourrette and McKeown of fraud, it is apparent that
the trial court accepted the testimony of McKeown, supported, as it was, by the circumstances
attending the first three sales. With such finding this court will not interfere.
When it appeared that LaRoque became insolvent and that the surety company that wrote
his performance bond had taken over the completion of his contract, the bank, which had
theretofore sent its final payment of some $3,500 under the Schaefer contract to the title
company, demanded and received from the title company the return of such payment so that
the same might be paid to the bonding company or to persons having material or labor liens.
Total advances by the bank under said contract amounted to some $17,000 and it would
appear from the bank's memorandum of advances on each of the two contracts in question
that all such advances were made after the reconveyances by the title company to LaRoque
under the written authorizations signed by Fitch and his wife. In both the Beardsley sale and
the Schaefer sale LaRoque had executed an assignment authorizing the bank to pay to Fitch
the moneys due the latter under each of the two respective deals.
Fitch, receiving no moneys in either the Beardsley or Schaefer deals, commenced this
action, joining as defendants LaRoque, the title company, the bank, LaTourrette and
McKeown, Beardsley and Schaefer. LaRoque defaulted. He was insolvent. He is not a party
to this appeal.
to this appeal. We have already disposed of Fitch's appeal from the judgment absolving
LaTourrette and McKeown from the charges of fraud. Fitch's cause of action against the title
company and the bank was based upon the original escrow and their knowledge of its terms
whereunder his sale price was protected by a first lien and whereunder the property was not to
be reconveyed until payment of such price. He alleged the complete knowledge of the title
company and the bank of this situation. While it is true that the original Fitch-LaRoque
contract provided that Fitch's trust deed was not to be released as against the respective lots
until the $2,250 purchase price of each lot was actually paid Fitch, the same contract bound
Fitch to the knowledge that LaRoque contemplated construction of a dwelling on each lot,
financed by the bank's advances, to be secured by a deed of trust superior to the deed of trust
of [Fitch] to the extent of moneys advanced for such construction costs.
[Headnote 2]
The situation of course resulted in an impasse. The title company's reconveyance under
Fitch's written instructions of course would destroy, and did destroy, his first lien. But
without this the bank would make no advances on its construction loan, a situation well
known to all parties. A refusal by Fitch to authorize the partial reconveyance would have
meant no loan, no construction of the residence, no sale of the lot. Perhaps Fitch was ill
advised. Perhaps an agreement subordinating his lien to that of the bank would have sufficed,
thus leaving Fitch at least with a second lien. Or perhaps he could have obtained a second
mortgage or deed of trust. Instead, he caused the reconveyance to be executed and recorded
and accepted in its place an assignment from LaRoque to himself of balance of moneys due
LaRoque under the building contract. This was quite effective on the first three lots upon
which buildings were constructed, in which cases Fitch suffered only the delay in awaiting
the completion of construction and the final payment by the bank. The same course, resulting
in each case of a modification of the original plan, proved disastrous to Fitch when
LaRoque became insolvent, the surety on the contract bond took over, and there was no
surplus of funds upon which LaRoque's assignment to Fitch could become operative.
case of a modification of the original plan, proved disastrous to Fitch when LaRoque became
insolvent, the surety on the contract bond took over, and there was no surplus of funds upon
which LaRoque's assignment to Fitch could become operative.
[Headnote 3]
This situation is reflected in the trial court's findings that Fitch elected to look to the
personal credit of LaRoque and agreed to accept the purchase price of each lot out of
LaRoque's assignment to him out of moneys payable to LaRoque under his building contract.
These findings are amply supported. The court gave Fitch the only relief available, an
apparently worthless judgment against LaRoque for $4,500, the purchase price of the two
lots. In these findings and the judgment based thereon, we find no error.
The lower court's denial of relief against Beardsley and Schaefer was likewise without
error. Beardsley and Schaefer bought from LaRoque under independent agreements. Payment
was conditioned on issuance of title insurance showing title respectively in Beardsley and
Schaefer, but subject to the bank's trust deed. No cause of action was established on the part
of Fitch against either Schaefer or Beardsley.
[Headnote 4]
Another issue remains to be considered. The court awarded LaTourrette and McKeown
judgment for commissions. Fitch appeals from this judgment also. McKeown testified
positively that in his agreement with Fitch for the sale by his firm of Fitch's lots, the firm
would await payment of its commissions until [Fitch] had received the sum designated as a
purchase price of each respective lot. The brokers insist that payment of their commissions
became due upon the original sale from Fitch to LaRoque and rely upon the decision of this
court in Engel v. Wilcox, 75 Nev. 323, 340 P.2d 93, in which we held that the defaults of the
buyers did not destroy the obligation of the seller to pay the brokers' commissions. However,
in that case we clearly distinguished the cases in which it appeared that commissions to the
brokers were payable out of the purchase money, which is the case here.
money, which is the case here. The original Fitch-LaRoque agreement of sale of the six lots
negotiated by LaTourrette and McKeown recognized the contemplation of the parties that the
bank would have to finance the construction of a dwelling on each lot, and provided for the
payment of commission to LaTourrette and McKeown in connection with this transaction.
No time was fixed for such payment. The brokers realized from the beginning the nature of
the LaRoque sale as being merely preliminary to future sales and construction contracts by
LaRoque through FHA financing, emphasized by the fact that no down payment was required
on the preliminary sale. They apparently did not expect and never demanded payment of
commissions on the sales of the first three lots until the money became available to Fitch out
of the respective final bank payments.
The judgment denying relief to appellants as against all respondents is affirmed with costs.
[Headnote 5]
The judgment in favor of LaTourrette and McKeown in the sum of $675 is reversed with
costs, and remanded with instructions to enter judgment in favor of appellants on the said
counterclaim of LaTourrette and McKeown. Any difficulties attendant upon apportioning the
respective costs awarded growing out of the determination of what parts of the transcript are
devoted to the respective issues do not require present determination. We may note, however,
the inclusion in the record of sundry briefs filed in the district court. Such briefs serve only to
encumber the records of this court, have no place in the record on appeal, and must be
disregarded with reference to the apportionment of costs.
____________
75 Nev. 492, 492 (1959) Delkin v. Nev. Title Guar. Co.
FRED LADD DELKIN and JAMES LADD DELKIN, Appellants, v. NEVADA TITLE
GUARANTY CO., a Nevada Corporation, and HATTIE MAY PAVLO, Respondents.
No. 4202
November 25, 1959 346 P.2d 703
Department No. 3.
Action by sellers of corporate stock against escrow holder for escrow holder's alleged
violation of its trust. The lower court awarded judgment in favor of escrow holder after
rectifying error by removing item of liability erroneously included by escrow holder in
distributing documents and cash in accordance with escrow agreement, and sellers appealed.
The Supreme Court, McNamee, C. J., held that, where the escrow agreement called for sale
of 60 percent of outstanding stock in corporation to owner of other 40 percent for stated sum
less 60 percent of corporation's liabilities, which were to be reflected by balance sheet to be
furnished by public accountant, but escrow agreement provided no time limit for furnishing a
balance sheet, public accountant had duty to substitute, anytime before close of escrow, a
corrected balance sheet which reflected all corporate liabilities coming to his knowledge, and,
therefore, escrow holder did not violate its trust in making distribution on basis of subsequent
balance sheet which reflected liabilities in excess of those shown on original balance sheet
submitted by public accountant.
Affirmed.
Herman E. Fisher, Jr., of Las Vegas, for Appellants.
Emerson J. Wilson, of Reno, for Respondents.
Escrows.
Where escrow agreement for sale of 60 percent of outstanding stock in corporation to owner of other 40
percent for stated sum less 60 percent of corporation's liabilities, which were to be reflected by balance
sheet to be furnished by public accountant, provided no time limit for the furnishing of balance sheet,
public accountant had duty to substitute, any time before close of escrow, corrected balance
sheet which reflected all corporate liabilities coming to his knowledge, and,
therefore, escrow holder did not violate its trust in distributing documents and cash
on basis of subsequent balance sheet which reflected liabilities in excess of those
shown on original balance sheet submitted by public accountant.
time before close of escrow, corrected balance sheet which reflected all corporate liabilities coming to his
knowledge, and, therefore, escrow holder did not violate its trust in distributing documents and cash on
basis of subsequent balance sheet which reflected liabilities in excess of those shown on original balance
sheet submitted by public accountant.
OPINION
Appellants are the plaintiffs below and respondents are the defendants below.
Plaintiffs and defendant Pavlo were the owners of all of the corporate stock of Lon-Gene,
Inc., a corporation. On December 13, 1956, they entered into an agreement whereby plaintiffs
agreed to sell to Pavlo all of their stock representing 60 percent of the total outstanding shares
of the corporation for $71,500, less 60 percent of the outstanding liabilities of the corporation.
The liabilities were to be reflected by a balance sheet to be furnished by one Carl A. Brown, a
public accountant, employed by both Pavlo and plaintiffs. The agreement was in the nature of
an escrow agreement which designated the defendant, Nevada Title Guaranty Co., the escrow
holder. On December 13, 1956 the said agreement was placed in escrow and on the same day
Brown deposited in escrow a balance sheet which he subsequently withdrew. Thereafter he
deposited another balance sheet which reflected liabilities of $8,919.39 in excess of the
liabilities shown in the original balance sheet.
Upon receipt of all the documents and cash required under said escrow agreement to be
deposited in escrow, the said escrow holder distributed the documents and cash as specified
in the escrow agreement and closed the escrow.
Plaintiffs claim that in recognizing the second balance sheet the escrow holder violated its
trust and, therefore, the plaintiffs were damaged in the sum of $5,315.63 (being 60 percent of
the said sum of $8,919.39).
As stated in the opinion of Judge Taylor in the court below: "From the entire transaction
it is evident that the parties intended that the basis of the settlement would be the true
net liabilities."
From the entire transaction it is evident that the parties intended that the basis of the
settlement would be the true net liabilities.
It is not seriously disputed, nor could it be, that the extra liabilities enumerated in the
second schedule were actual existing liabilities of the corporation except one item of $322.24
which was erroneously included in the second balance sheet and which was deducted
therefrom by the trial court.
Plaintiffs contend that Brown's authority to prepare the liability sheet was limited to the
first liability sheet which he deposited in escrow and that if additional liabilities came to his
or the contractual parties' attention thereafter, they were subject to rectification pursuant to a
term of the agreement which provides as follows:
In the event that there are liabilities not disclosed on the balance sheet submitted as
aforesaid, the Buyer shall be authorized to discharge the said liabilities and deduct from said
payments on each promissory note (i.e., the note to James Ladd Delkin and the note to Fred
Ladd Delkin) 30% of the amount of the liability or liabilities so discharged, after arbitration.
It is to be noted, however, that the escrow agreement provided no time limit for the
furnishing or supplying of the balance sheet.
In our opinion it was proper for Brown, in fact it was his duty, to substitute a corrected
balance sheet any time before the close of the escrow, reflecting all corporate liabilities
coming to his knowledge. Cf. Meeks v. Stillwell, 54 Ohio St. 541, 44 N.E. 267.
The distribution of funds by the escrow holder was made pursuant to the amended balance
sheet and this was proper except as to said item of $322.24. In its judgment the trial court
rectified this error and gave judgment in favor of each of the plaintiffs and against Pavlo in
the sum of $193.34. At the same time it awarded judgment in favor of the defendant, Nevada
Title Guaranty Co., which was proper.
____________
75 Nev. 495, 495 (1959) State Ex Rel. Lyon v. Lyon
STATE OF NEVADA, Ex Rel. ANNA MARIE LYON, Appellant, v. LESTER
DAVID LYON, Respondent.
No. 4167
November 30, 1959 346 P.2d 709
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Proceeding on petition by wife filed under Uniform Reciprocal Enforcement of Support
Act praying that court find a duty upon part of husband to support her. From a judgment of
the trial court holding that husband did not owe wife a duty to support her, the wife appealed.
The Supreme Court held that it would assume that the lower court's conclusion was supported
by competent evidence in absence of transcript of evidence.
Affirmed.
William J. Raggio, District Attorney, John H. Mathews, Assistant District Attorney, of
Reno, for Appellant.
Maurice J. Sullivan, of Reno, for Respondent.
In a proceeding on a petition filed under Uniform Reciprocal Enforcement of Support Act praying that
court find a duty upon part of husband to support wife and to order husband to support her, initiating state
cannot fix liability of husband in responding state. NRS 130.010 to 130.300.
In proceeding on a petition filed under Uniform Reciprocal Enforcement of Support Act praying that
court find a duty on part of husband to support wife and to order husband to support her, it is obligation of
court in responding state to determine whether husband is under a duty to support wife and such
determination may be made by the latter court only upon basis of evidence adduced before that court.
NRS 130.010 to 130.300.
In proceeding on petition by wife filed under Uniform Reciprocal Enforcement of Support Act praying
that court find a duty upon part of husband to support her, Supreme Court assumed that lower court's
conclusion that husband did not owe wife a duty to support was supported by competent evidence in
absence of transcript of evidence. NRS 130.010 to 130.300.
OPINION
Per Curiam:
This is an appeal from the judgment decreeing that respondent does not owe appellant a
duty to support her.
Under the Uniform Reciprocal Enforcement of Support Act (NRS 130.010-130.300) a
petition was filed in the court below on behalf of appellant praying that the court find a duty
upon the part of respondent to support appellant and to order respondent to support her.
California was the initiating state.
The only record before this court is an agreed statement dated November 4, 1958, signed
by the attorneys for appellant and respondent, which recites the marriage of the parties in
1930, a California decree of separate maintenance in 1949 wherein the defendant (respondent
herein) personally appeared, a Nevada default decree of divorce on December 1, 1954 granted
to respondent based upon substituted service (personal service on the appellant in California),
and a contempt hearing in California wherein the California court denied recognition of the
Nevada divorce on a finding that respondent's residence in Nevada was not bona fide. As a
further fact it recites that on the 19th day of October 1954, respondent Lester David Lyon,
established residence in the State of Nevada, and has continued to reside in the State of
Nevada to the present time.
1

The agreed statement concludes as follows:
The matter was heard before the Honorable Gordon W. Rice, District Judge, evidence
was presented by both parties, the matter was argued and submitted, and the Court, on the 3rd
day of July 1958, entered its order finding that the respondent does not owe Anna Marie Lyon
a duty to support, and ordered that respondent need not pay support to Anna Marie Lyon, and
dismissed respondent.
[Headnote 1]
In the case of Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30, 32, it was pointed out
that the initiating state cannot fix the liability of the obligor in the responding state.
____________________

1
This recital is evidential of respondent's bona fide residence in Nevada.
state cannot fix the liability of the obligor in the responding state. In this regard the New
Jersey court said:
In effect it (the finding of the court in the initiating state) amounts merely to a finding that
the allegation of the complaint warrants further proceedings; it is in no way evidentiary as to
defendant's liability.
[Headnote 2]
It is apparent from the agreed facts that the initiating state in one proceeding found that the
respondent's residence in Nevada was not bona fide and thus the Nevada divorce based
thereon was invalid, while on the other hand the counsel herein have stipulated that
respondent has continued to be a resident of Nevada ever since October 19, 1954, the day he
established his Nevada residence. The agreed statement consisting of stipulated facts is
evidentiary matter.
* * * it is the obligation, not of the initiating court, but of the court in the responding
state, to determine whether or not the defendant spouse is under a duty to support the plaintiff
spouse; and such determination may be made by the latter court only upon the basis of
evidence adduced before that court * * *. Pfueller v. Pfueller, supra.
2

[Headnote 3]
We do not know what evidence in addition to said agreed statement was considered by
Judge Rice in the court below which resulted in his conclusion that the respondent does not
owe Anna Marie Lyon a duty to support, and in the absence thereof we must assume that the
lower court's conclusion was supported by competent evidence.
Affirmed.
____________________

2
Not only the facts but also the sufficiency of the petition are determinable by the responding state. Manis v.
Genest, 210 Ga. 16, 77 S.E.2d 525.
____________
75 Nev. 498, 498 (1959) Steward v. State
EARL LEWIS STEWARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 4155
December 1, 1959 346 P.2d 1083
Defendant was convicted of first degree murder. The trial court entered judgment and
order denying defendant's motion for new trial, and defendant appealed. The Supreme Court,
McNamee, C. J., held that a truck is a place within meaning of statute providing that when,
in opinion of court, it is proper that jury should view place in which offense is charged to
have been committed, or in which any other material fact occurred, it may order jury to be
conducted in a body, in custody of officer, to place, which must be shown to them by
person appointed by court for that purpose, and that defendant was not prejudiced because
jury was permitted to view a truck, which was identical with truck in which killing took
place, since a view by jury of actual truck, in which killing took place, would have been
proper under statute.
Affirmed.
Keith Williams, of Elko, for Appellant.
Roger D. Foley, Attorney General, Joseph O. McDaniel, District Attorney, of Elko, for
Respondent.
1. Criminal Law.
A truck is a place within meaning of statute providing that when, in opinion of court, it is proper that
jury should view place in which offense is charged to have been committed, or in which any other
material fact occurred, it may order jury to be conducted in a body, in custody of officer, to place, which
must be shown to them by person appointed by court for that purpose. NRS 175.315.
2. Criminal Law.
In murder prosecution, defendant was not prejudiced because jury was permitted to view a truck, which
was identical with truck in which killing took place, since a view by jury of actual truck, in which killing
took place, would have been proper under statute. NRS 175.315.
OPINION
Appellant was convicted of first degree murder. The jury by its verdict fixed the penalty at
death. Appeal is taken from the judgment and order denying appellant's motion for a new
trial.
The only question raised on appeal is whether the trial court over the objection of appellant
erred in permitting the jury to view a truck and the inside thereof outside the courtroom and
without the presence of defendant and his counsel.
1
It was not the same truck that the victim
had been killed in but according to the evidence it was one identical therewith. The view was
not had at the premises where the crime, or where any material fact connected therewith,
occurred.
NRS 175.315 provides:
When, in the opinion of the court, it is proper that the jury should view the place in which
the offense is charged to have been committed, or in which any other material fact occurred,
it may order the jury to be conducted in a body, in the custody of an officer, to the place,
which must be shown to them by a person appointed by the court for that purpose; and the
officer must be sworn to suffer no person to speak or communicate with the jury, nor to do so
himself on any subject connected with the trial, and to return them into court without
unnecessary delay, or at a specified time.
The homicide admittedly took place in the cab of the victim's truck. Defendant, in his
written statement in evidence, detailed the events leading up to his shooting of the victim and
described their relative positions in the truck and cab. Photographs were received in evidence
showing both the inside and outside of the truck and cab. To have permitted a view of the
actual truck and cab where the encounter took place would not have been violative of the
statute under these circumstances.
____________________

1
Defendant's objection was based on the grounds that the view would amount to the taking of evidence out of
court, and that the view was not of the place where the alleged offense was committed. No question was
presented to the trial court of the right of the defendant to be present during the view.
been violative of the statute under these circumstances. It would have been a view of the
scene of the alleged offense and in this sense it would have been the place in which the
offense is charged to have been committed.
[Headnote 1]
The fact that the place consists of a vehicle would not circumvent the statute. Sweeney
v. Willette, 98 N.H. 512, 104 A.2d 398; State v. Cates, 97 Mont. 173, 33 P.2d 578; State v.
Smith, 62 Ariz. 145, 155 P.2d 622. Accord: Howe v. State, 85 Okl.Cr. 22, 185 P.2d 481.
* * * the process of view need not be applicable merely where land is to be observed; it is
applicable to any kind of object, real or personal in nature, which must be visited in order to
be properly understood. IV Wigmore on Evidence (3d Ed.), sec. 1163, p. 270.
What would have been seen by the jury would not be evidence as such and is not intended
so to be. The purpose of the view would be to enable the jury better to understand evidence
which has been or may be introduced. State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L.R.A. 33.
[Headnote 2]
Since we have concluded that a view of the actual vehicle in which an offense is charged
to have been committed would have been proper under the circumstances, we can see nothing
prejudicial to the defendant in permitting the jury to view an identical vehicle as was done in
this case. 1931 Rouse's Trial (Notable British Trials Series, p. 257; murder by burning the
deceased in an abandoned motor car; the jury was allowed to inspect a car of identical
model). In fact it would appear that the view would tend to be beneficial to the defendant as it
enabled the jury to understand and more fully appreciate the written statement of the
defendant, already in evidence, pertaining to his conception of what had taken place in the
cab, and it made clearer and more understandable defendant's oral corroborating testimony
that followed.
Defendant has urged that the trial court in permitting the view deprived him of certain
constitutional rights and privileges, the nature of which are considered at length in State
v. Merritt, 66 Nev. 3S0
the view deprived him of certain constitutional rights and privileges, the nature of which are
considered at length in State v. Merritt, 66 Nev. 380, 212 P.2d 706. The present case is
clearly distinguishable.
In the Merritt case we concluded that the view there permitted involved primarily the
taking of evidence out of court and the defendant was thereby deprived of his constitutional
rights of confrontation and cross-examination. That situation does not here exist. From a
practical point of view some evidence would naturally be perceived by the jury, but any such
evidence would be merely incidental to the view, and as aforesaid it was not prejudicial to the
defendant. Under these circumstances the defendant's constitutional rights and privileges have
not been impaired. The words of Justice Cardoza writing for the majority of the court in
Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 338, 78 L.Ed. 674,
are of especial significance with respect to this particular matter:
Privileges so fundamental as to be inherent in every concept of a fair trial that could be
acceptable to the thought of reasonable men will be kept inviolate and inviolable, however
crushing may be the pressure of incriminating proof. But justice, though due to the accused, is
due to the accuser also. The concept of fairness must not be strained till it is narrowed to a
filament. We are to keep the balance true.
The constitution and statutes and judicial decisions of the Commonwealth of
Massachusetts are the authentic forms through which the sense of justice of the People of that
Commonwealth expresses itself in law. We are not to supersede them on the ground that they
deny the essentials of a trial because opinions may differ as to their policy or fairness. Not all
the precepts of conduct precious to the hearts of many of us are immutable principles of
justice, acknowledged semper ubique et ab omnibus (Otis v. Parker, 187 U.S. 606, 609, 23
S.Ct. 168, 47 L.Ed. 323, 327), wherever the good life is a subject of concern. There is danger
that the criminal law will be brought into contemptthat discredit will even touch the great
immunities assured by the Fourteenth Amendmentif gossamer possibilities of prejudice
to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction
in obedience to local law, and set the guilty free."
even touch the great immunities assured by the Fourteenth Amendmentif gossamer
possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of
competent jurisdiction in obedience to local law, and set the guilty free.
We are not unmindful that in the Merritt case the court in considering the type of view
permissible under our statute used certain language which appears to be in conflict with our
views herein expressed. Such language was unnecessary for the conclusion therein reached
and consequently we do not consider such statements as governing authority.
The legislature of this state has ordained that this court shall on appeal give judgment
without regard to technical error or defect which does not affect the substantial rights of the
parties. NRS 177.230.
No prejudicial error appearing, the judgment and order denying a new trial are affirmed,
and the district court is directed to make the proper order for carrying into effect, by the
warden of the state prison, the judgment.
____________
75 Nev. 502, 502 (1959) Chisholm v. Redfield
HAROLD S. CHISHOLM, Appellant, v.
L. V. REDFIELD, Respondent.
No. 4196
December 2, 1959 347 P.2d 523
Department No. 2.
Suit to enjoin breach by defendant of agreement to let plaintiff run defendant's business
until sufficient moneys were realized to reimburse plaintiff for sums advanced. The trial court
granted the relief sought, and an appeal was taken. The Supreme Court, Badt, J., held that
evidence sustained findings that alleged agreement had been made and that defendant had
advanced money to defendant individually.
had been made and that defendant had advanced money to defendant individually.
Affirmed.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondent.
1. Injunction.
In suit to enjoin breach by defendant of agreement to let plaintiff run defendant's business until sufficient
moneys were realized to reimburse plaintiff for sums advanced, evidence sustained finding that agreement
alleged had been made.
2. Injunction.
moneys were realized to reimburse plaintiff for sums advanced, evidence sustained finding that advances
had been made by plaintiff to defendant individually in amounts claimed.
3. Injunction.
Under circumstances, agreement for exclusive control by plaintiff of defendant's business until plaintiff
should be reimbursed for sums advanced, was not so indefinite, ambiguous or uncertain that its breach
could not be enjoined.
4. Injunction.
Enjoining breach by defendant of agreement, to permit plaintiff to operate lumber yards until sufficient
moneys were realized to reimburse plaintiff for sums advanced, was proper, and did not amount (1) to
effecting a receivership of lumber company without sanction of statutory requirements for corporate
receivership or (2) to erroneously in effect adjudging specific performance. NRS 33.010.
Defense of statute of frauds must be specially pleaded, and if not so pleaded it is waived. NRCP 8(c),
12(b, h).
Where defendant did not plead statute of frauds as an affirmative defense to suit to enjoin breach by
defendant of agreement let plaintiff run defendant's business until sufficient moneys were realized to
reimburse plaintiff for sums advanced, and did not object to evidence of oral contract, move to strike
testimony, or present matter to trial court in his motion for new trial or otherwise, question was not
properly before reviewing court on appeal from judgment awarding injunction. NRCP 8(c), 12(b, h).
7. Injunction.
moneys were realized to reimburse plaintiff for sums advanced, finding in favor of contract implied finding
of consideration.
OPINION
Appellant has appealed from a judgment awarding respondent an injunction against
appellant, and from an order denying appellant's motion to dissolve an earlier preliminary
injunction. The parties will be referred to by name.
Redfield's complaint, filed June 3, 1957, alleged Chisholm's indebtedness to him in a sum
in excess of $250,000 theretofore advanced by him to Chisholm for the financing and
operation of two lumber yards in Washoe County. He alleged that on January 1, 1957 the two
agreed that Redfield was to operate and manage the lumber yards until sufficient moneys
were realized by way of profits or from a sale of the business to reimburse him; that on June
3, in violation of the agreement, Chisholm padlocked the gates and closed the lumber yards,
rendering their operation by Redfield impossible, with resulting irreparable damage to
Redfield unless Chisholm was restrained from interference with Redfield's operations. No
other relief was sought. Chisholm's answer admitted padlocking the lumber yards on June 3,
1957, but denied all other material allegations of the complaint.
The case was tried by the court without a jury and the court made findings to the effect that
in August 1955 Chisholm sought financial assistance from Redfield for the operation of the
former's lumber business, at which time Redfield agreed to lend Chisholm from time to time
amounts equal to one-half of Chisholm's inventory and two-thirds of his accounts receivable;
that by January 1, 1957 Redfield had advanced to Chisholm in excess of $250,000, which was
then due and owing; that on January 1, 1957 the parties agreed that Redfield should assume
the entire management and control of said lumber business until such time as sufficient
money was received, either by way of profits or the sale of said business, to reimburse
Redfield for all money advanced by him to Chisholm; that on June 3, 1957 Chisholm closed
and padlocked the yards, making it impossible for Redfield to operate them; that unless
restrained, Chisholm would prevent Redfield's operation, whereby Redfield would suffer
great and irreparable injury; and that Redfield had no plain, speedy, or adequate remedy
at law.
for Redfield to operate them; that unless restrained, Chisholm would prevent Redfield's
operation, whereby Redfield would suffer great and irreparable injury; and that Redfield had
no plain, speedy, or adequate remedy at law.
Chisholm asserts several grounds for reversal: (1) that the evidence does not support the
findings, (a) as to the asserted agreement, or (b) as to the advancement of any money to
Chisholm individually;
1
(2) that the evidence shows that the advances by Redfield were not
made to Chisholm but partly to H. S. Chisholm, Inc., and partly to Riverside Lumber
Company, a corporation, or to Oregon-Nevada Lumber Company, a corporation; that the
advances were not loans but contributions to the capital stock of Oregon-Nevada Lumber
Company, to which Chisholm had likewise contributed capital by way of the lumber yards
owned or leased by him and sundry improvements, trucks and other equipment aggregating
some $92,000 in value; (3) that even if such agreement had been made as alleged and found
by the court, it was so indefinite, ambiguous, and uncertain as not to support an injunction;
(4) that Redfield, in suing Chisholm as an individual, had in effect established a receivership
of Oregon-Nevada Lumber Company, with himself as the receiver, without the sanction of
any of our statutory requirements essential to a corporate receivership; (5) that the agreement
is void under the statute of frauds because (a) it was equivalent to a lease of lands for more
than one year, and (b) because it was not to be performed within one year; and (6) that the
agreement is void for want of consideration and lack of mutuality.
[Headnote 1]
(1) Redfield testified definitely and positively to the agreement placing the operation and
control of the lumber yards in his hands, detailing the circumstances and conversations
leading up to it. This was met by positive denials by Chisholm. The testimony was in
diametrical opposition. The trial court chose to accept the testimony of Redfield and to reject
that of Chisholm.
____________________

1
This is considered under (2) infra.
of Redfield and to reject that of Chisholm. We must accordingly hold that there was support
for the finding that the agreement was made. State ex rel. Department of Highways v.
Shaddock, 75 Nev. 392, 344 P.2d 191; Swartout v. Grover Collins Drilling, etc., 75 Nev. 297,
339 P.2d 768.
[Headnote 2]
(2) The same situation applies to appellant's contention that all of Redfield's advances
were made to one or another of the three corporations mentioned and none to Chisholm as an
individual. Fifty pages of cross-examination met with Redfield's constant insistence that he
dealt with Chisholm as an individual. When confronted with his numerous checks, all payable
to Oregon-Nevada Lumber Company, the fact that they were deposited to the credit of that
company in the bank, and that payments for merchandise, expenses, etc. were all by way of
checks drawn in the name of Oregon-Nevada Lumber Company, signed by him and
Chisholm, and later by him alone, he insisted that this was merely a matter of mechanics; that
Chisholm was simply operating under a new name and that he, Redfield, was continuing to
finance him under the original agreement. Many circumstances and particular transactions
were inquired into, and many activities in the relationship appeared to be casual, informal,
and slipshod in the extreme. Chisholm had pleaded that the parties were engaged in a joint
adventure, and there was evidence of something in the nature of a joint adventure whereunder
both Redfield (by way of cash) and Chisholm (by way of his lumber yards, stock, and
equipment) contributed to the capital of a corporation to be formed and which actually was
formed. But apparently it was a dry corporation which functioned only by the use of its
name, without bylaws, without meetings of directors, without issuance of its corporate stock,
and without (although there was some evidence contra) conveyance to it of any property. The
court found that there was no joint adventure. We cannot say that the finding that the
advances were made by Redfield to Chisholm individually in the amounts claimed was
without substantial support.
[Headnote 3]
(3) We must also reject the contention that the contract was so indefinite, ambiguous, and
uncertain that its breach could not be enjoined. The parties operated under the original
agreement for advances secured by one-half of inventories and two-thirds of accounts
receivable for the last six months of 1955 and all of 1956, till Redfield called a halt on
account of what he considered Chisholm's excessive purchases and poor business judgment,
and insisted that he be placed in full control. Upon Chisholm's acquiescence they operated
under the new agreement for six months more, with Redfield being reimbursed from time to
time, mainly out of receipts on account of bills receivable. Under these circumstances we
cannot say that the agreement for exclusive control in Redfield until he should be reimbursed
was so indefinite, ambiguous, or uncertain as to exclude the right of injunctive relief against
its breach. See MacDonald v. Rosenfeld, 83 Cal.App.2d 221, 188 P.2d 519.
[Headnote 4]
(4) For similar reasons we are not impressed with the argument that the injunction against
violation of the contract unlawfully effected a receivership over the corporation, or
erroneously in effect adjudged a specific performance. Statutory requirements for the
injunction were met. NRS 33.010. And the power to restrain the breach of a contract under
proper circumstances and conditions has long been recognized. In Muncie Natural Gas Co. v.
Muncie, 160 Ind. 97, 66 N.E. 436, 441, 60 L.R.A. 822 (1903), the court said: [A]ppellee had
a right to appeal to equity * * *. The city was a party to the contract, and it complains of the
breach of a negative covenant. This is a case, so far as the covenant is concerned, for a
negative specific performance by means of an injunction. A court of equity * * * will not
suffer men to depart from their agreements at pleasure * * *. The contract, as found by the
court, gave Redfield full control. In effect it was an agreement by Chisholm not to interfere
with that control. Other necessary elements being present, it was a classic example of equity's
right to enjoin the breach.
to enjoin the breach. See discussion and citation of cases in 28 Am.Jur 853, Injunctions, sec.
85 et seq.
[Headnotes 5, 6]
(5) Whatever difficulties might, before the adoption of NRCP, have attended the
determination of whether the oral contract was void under the statute of frauds, or what
problems of construction or analysis of the contract might have been involved (see Levy v.
Ryland, 32 Nev. 460, 109 P. 905; Stanley v. Levy & Zentner Co., 60 Nev. 432, 112 P.2d
1047, 158 A.L.R. 76), the question is not now properly before us. Appellant did not plead the
statute as an affirmative defense, nor, it may be noted, did he object to evidence of the oral
contract, move to strike the testimony, or present the matter to the trial court in his motion for
new trial or otherwise. Under Rule 8(c) the defense must be specially pleaded, and under Rule
12(b) and (h), if not so pleaded, it is waived. Morgan Electric Co. v. Neill, 9th C.C.A., 198
F.2d 119.
[Headnote 7]
(6) The trial court was apparently not asked to make a finding on consideration for the oral
contract, but its finding in favor of the contract implies a finding of consideration. Under our
practice, when findings are not made or requested, any findings necessary to support the
judgment are presumed. Murray v. Osborne, 33 Nev. 267, 277, 111 P. 31, 33. Our rules
provide adequate opportunity for correction or modifications of the findings. These were not
sought. In any event the existence of a consideration seems clear. The business had been
running at a sizable loss and Redfield told Chisholm that it could not continue that way, that
Redfield could not afford to keep putting up the money to pay the accruing bills, but that he
was willing to let Chisholm continue as manager of the wholesale end while Redfield would
have supervision of the entire operation. The implication is clear that Redfield would keep
putting up the money to pay the accruing bills and would be willing to let Chisholm continue
as manager of the wholesale end, provided that Chisholm would agree to sole control and
operation by Redfield.
operation by Redfield. The extent of the consideration is manifest. Not only had Redfield put
over a quarter of a million dollars into the business, but the very nature of the business
indicated to both parties that the accruing bills would amount to very material sums, and that
it would be incumbent upon Redfield to satisfy them. A balance sheet submitted by the
accountants of the parties listed during the period July 1 to December 31, 1956 sundry
amounts expended for overhead expense itemized as truck expense, yard expense, buying
expense, selling expense, general and administrative expense, and were shown to average
over $6,000 a month. This did not include actual purchases averaging over $34,000 a month.
During the same period, income from sales averaged less than $20,000 a month. It is true that
the statement showed an inventory December 31, 1956 of over $107,000, but neither this nor
other existing assets minimizes (though it provides to some extent the means of
reimbursement) the very material consideration growing out of Redfield's undertaking. See
MacDonald v. Rosenfeld, 83 Cal.App.2d 221, 188 P.2d 519.
McNamee, C. J. and Pike, J., concur.
____________
75 Nev. 509, 509 (1959) Lietaert v. Shinners
HERBERT LIETAERT, Appellant, v. WILBUR J. SHINNERS and
NEVA C. SHINNERS, His Wife, Respondents.
No. 4199
December 7, 1959 347 P.2d 282
Appeal from judgment of the Second Judicial District Court, Washoe County; Merwyn H.
Brown, Presiding Judge, Department No. 1.
Action by tenant against landlords for injuries sustained in a fall attributed to presence of
decomposed granite or sand on outside step and for negligence of landlords in failing to have
handrails on step area and to keep the step area and a common walkway properly lighted
in violation of city ordinance.
landlords in failing to have handrails on step area and to keep the step area and a common
walkway properly lighted in violation of city ordinance. From adverse judgment of the lower
court, the tenant appealed. The Supreme Court, Pike, J., held that evidence was insufficient to
establish a possible violation of ordinance provisions as proximate cause of injuries sustained
and evidence concerning municipal building code was properly excluded and court properly
declined to instruct concerning it.
Judgment affirmed.
Goldwater, Taber and Hill, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondents.
In action by tenant against landlords for injuries sustained in fall attributed to presence of decomposed
granite or sand on outside step and for negligence of landlords in failing to have handrails on step area and
to keep step area and a common walkway properly lighted in violation of city ordinance, evidence was
insufficient to establish a possible violation of ordinance provisions as proximate cause of injuries
sustained and evidence concerning municipal building code was properly excluded and court properly
declined to instruct concerning it.
In action by tenant against landlords for injuries sustained in a fall attributed to presence of decomposed
granite or sand on outside step and for negligence of landlords in failing to have handrails on step area and
to keep step area and a common walkway properly lighted in violation of city ordinance, wherein there was
a lack of evidence tending to establish that a possible violation of ordinance provisions was a proximate
cause of fall and injuries, court properly rejected testimony of city building inspector relating to
interpretation and meaning to be given to certain terms appearing in building code.
3. Appeal and Error; Landlord and Tenant.
granite or sand on an outside step on south side of six-plex and for negligence of landlords in allegedly
failing to have handrails on step area and to keep step area and a common walkway leading to it properly
lighted, evidence was insufficient to establish that failure on part of landlords to furnish additional exterior
lighting leading to walkway was proximate cause of tenant's injury and instruction that there was no
common-law duty on landlords to light passageway used in common by tenants was not prejudicial and did
not constitute reversible error.
granite or sand on an outside step on south side of six-plex and for negligence of landlords in allegedly
failing to have handrails on step area and to keep step area and a common walkway leading to it properly
lighted, court properly refused to give tenant's requested instructions making it duty on part of landlords to
furnish a reasonable amount of artificial light when there was absence of proof that failure of landlords to
furnish additional exterior lighting was a proximate cause of the fall.
In action by tenant against landlords for injuries sustained by a fall attributed to decomposed granite or
sand on outside step on side of six-plex wherein there was testimony that tenant had left his apartment
about an hour earlier to make a purchase and that he returned and that there was light so that he could see
where he was going, evidence was sufficient to support instruction on assumption of the risk.
OPINION
This is an appeal from a judgment of the trial court based upon a jury verdict in favor of
the respondents.
Appellant Lietaert rented and occupied an apartment in a six-plex owned by the
respondents Shinners in Reno, Nevada. Some nine days after the inception of his tenancy,
while returning to his apartment, Lietaert slipped, fell and sustained injuries. Lietaert
attributed his fall to the presence of decomposed granite or sand on an outside step on the
south side of the six-plex. His complaint charged respondents with negligence for having
permitted such condition to exist. It also charged negligence for failure to have handrails on
the step area and for failure to keep the step area and a common walkway leading to it
properly lighted. Violations of a city of Reno municipal ordinance known as the Municipal
Building Code (Ordinance No. 1093, sec. 3305(g)) requiring handrails on stairways was
alleged as negligence, and a violation of another section of the same ordinance requiring the
lighting of exits (sec. 3312(a)) was asserted by appellant at the trial, although its violation
was not specifically pleaded.
[Headnote 1]
Appellant contends error on the part of the trial court in (1) not admitting the building code
of the city of Reno in evidence and in refusing to instruct the jury on such building code; (2)
instructing the jury that in Nevada there is no common law duty on the landlord to light
passageways used in common by several tenants; (3) instructing the jury on assumption of
risk.
[Headnote 2]
We find no error by the trial court in refusing either to admit the municipal building code
into evidence or to instruct the jury concerning it. This conclusion is reached because there is
a lack of evidence tending to establish that a possible violation of the ordinance provisions
was a proximate cause of appellant's fall and injuries. In the absence of evidence so
connecting violation of an ordinance with the accident, violations of the ordinance provisions
were not germane to the issue of negligence. Shramek v. Huff, 135 Neb. 178, 280 N.W. 450;
Winterson v. Pantel Realty Co., 135 Neb. 472, 282 N.W. 393; Petrey v. Luizzi, 76 Ohio App.
19, 61 N.E.2d 158. For the same reason, the trial court properly rejected the testimony of the
city building inspector, tendered by appellant, relating to the interpretation and meaning to be
given certain terms appearing in the building code. This disposes of appellant's first point on
appeal.
[Headnote 3]
Appellant's second assignment of error is that the trial court should not have instructed the
jury that in Nevada there is no common law duty on the part of a landlord to light
passageways used in common by several tenants. The evidence shows that the six-plex
building had its long direction north and south, faced west, and that each of the six dwelling
units had its own entrance door opening directly upon a cement walkway used in common by
all the tenants. Photographs in the record show that this walkway on the west side of the
structure was less than four feet wide, was elevated off the ground a distance of not more than
two feet, had no roof, and was completely open on its west side.
roof, and was completely open on its west side. The only arrangements provided for exterior
artificial lighting of the walkway and step area were individual light sockets and bulbs placed
above the door of each apartment, which light was controlled from within the particular unit.
Some 150 feet to the south there was a street light on Grove Street. Appellant's apartment was
adjacent to the southernmost apartment. At the southern end of the walkway was a parking
area, having the decomposed granite surface common to the entire area immediately adjacent
to and surrounding the six-plex. Tenants leaving such parking area reached the walkway by
stepping up one step and then stepping on the walkway. Appellant had followed such route
immediately prior to his fall.
The accident occurred about 9:15 o'clock p. m., August 22, 1957.
Appellant testified that he had walked across the decomposed granite parking area and had
placed his right foot on the step when he slipped and fell. At the time he fell none of the unit
entrance lights over the walkway was lighted. He testified that he could see the corner of the
building, a white building next door, a nearby white fence to his left, and the step upon which
he placed his right foot, but that he did not see the sand upon the step. He testified that he had
walked over the area where the fall occurred at least two or three times a day during the
period of his occupancy prior to the accident, and that he had been over the area several times
at night during the same period. Appellant's testimony was also to the effect that the general
conditions relating to the step and the coarse sand in the adjacent area and the lighting were
the same on the date of the accident as they had been at the inception of and during his
tenancy.
There is an absence of proof that failure on the part of the landlord to furnish additional
exterior lighting to the walkway or southern approach to the walkway was a proximate cause
to appellant's fall. This being true, a determination of any such common law duty of the
landlord to light the common walkway and step area does not present itself for decision in
this case.
lord to light the common walkway and step area does not present itself for decision in this
case. In our view of the evidence, the instruction given and complained of by appellant was
without prejudice to appellant and did not constitute reversible error on the part of the trial
court. In such instruction, although the jury was advised that the landlord retaining control of
common approaches for the use of tenants was under no duty to provide lights for such
common approaches, the same instruction informed the jury that it might consider whether
the landlord used ordinary care in keeping the common approaches reasonably safe for the
tenants, and whether the plaintiff used ordinary care for his own safety and, in that regard,
might consider that lighting facilities were in place on the exterior wall near the unit
apartment doors that could be turned on and off by the tenants.
[Headnote 4]
Neither, for the reasons already given, under the record in this case do we find error by the
trial court's refusal to give appellant's requested instructions making it the duty on the part of
the landlord to furnish a reasonable amount of artificial light as part of the landlord's duty to
exercise reasonable care.
[Headnote 5]
Appellant's third assignment of error is that the trial court erred in instructing the jury on
assumption of risk.
Under such instruction appellant's knowledge of any dangerous condition existing on the
premises, as well as his voluntary submission of himself to that danger, were issues of fact
submitted for determination by the jury. Respondent's answer denied negligence and pleaded
contributory negligence and assumption of risk as affirmative defenses.
Evidence in this case, in addition to that hereinabove referred to, shows that there were
about 11 children besides the adults living in the apartment house during the summer school
vacation month when this accident occurred.
The manager of the apartments testified that she swept the walkway at least once a day or
more frequently, if necessary, and that she sprinkled the area to the south of the walkway. She
also testified that she had not received any complaints about the condition of the area and
knew of no one falling there except appellant.
Appellant testified that he had seen the manager, Mrs. Snyder, sweep the step and
walkway on one occasion and had noticed some of the other tenants sweep and that he had on
occasions swept (apparently confining his sweeping to the walkway in the vicinity of his
apartment).
Necessarily persons walking over the sandy area and into the six-plex carried with them
undetermined quantities of sand onto the step and common walkway. There is a complete
absence of evidence as to the quantity of sand on the step at the time the appellant fell, and as
to the length of time during which the sand was there prior to the accident. Likewise there is
no proof of actual knowledge, or knowledge chargeable to the landlords, of the presence of
such sand on the step. However, appellant's testimony shows that he left his apartment about
8:30 o'clock p. m. to make a purchase, with the intent to return directly to the apartment, and
that he did so return within less than an hour after he had left. From all that appears in the
record he left the apartment house by way of the identical step upon which he fell. He
testified that when he left the apartment it was still pretty light and that due to long
evenings he considered the light condition continued until about 9:00 or 9:30 o'clock p. m.
(daylight saving time was then in effect). Appellant further testified that he could see where
he was going. Other portions of his testimony as to what he was able to observe just prior to
the fall have already been referred to.
Appellant charged respondents with negligence in that they permitted a dangerous
condition to exist on the step, but denied knowledge of such dangerous condition himself.
We consider that there was sufficient evidence to dispute appellant's denial of knowledge
of any such dangerous condition and to support the instruction on assumption of risk.
assumption of risk. Thus there was no error in giving such instruction.
The evidence supports the verdict in this case. Judgment affirmed, with costs to
respondent.
McNamee, C. J. and Badt, J., concur.
____________
75 Nev. 516, 516 (1959) Shaheen v. Riviera Hotel Corp.
KAREM C. SHAHEEN, Appellant, v. RIVIERA
HOTEL CORPORATION, a Corporation, Respondent.
No. 4208
December 10, 1959 347 P.2d 285
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge,
Department No. 2.
Action for injuries sustained by parking lot attendant, whose compensation consisted
entirely of gratuities received from guests, when he tripped on guy wire while crossing an
island in front of defendant's hotel en route to parking lot to get guest's automobile. The lower
court rendered judgment of dismissal, and plaintiff appealed. The Supreme Court, McNamee,
C. J., held that evidence raised questions of fact as to whether defendant had knowledge of
customary use of island by parking lot attendants, so as to make plaintiff an invitee rather
than a mere licensee when he entered island, as to whether defendant had been negligent in
not posting some warning of existence of wire or in not illuminating island or in not posting
no trespass signs thereon, as to whether plaintiff had had knowledge of existence of guy wire
and as to whether plaintiff had been proceeding in dark in familiar or unfamiliar place.
Reversed.
John Manzonie and John F. Mendoza, of Las Vegas, for Appellant.
Clarence Sundean, of Las Vegas, for Respondent.
Negligence.
In action for injuries sustained by parking lot attendant, whose compensation consisted entirely of
gratuities received from guests, when he tripped on guy wire while crossing an island in front of defendant's
hotel while en route to parking lot to get guest's automobile, evidence raised questions of fact as to whether
defendant had knowledge of customary use of island by parking lot attendants, so as to make plaintiff an
invitee rather than a mere licensee when he entered island, as to whether defendant had been negligent in
not posting some warning of existence of wire or in not illuminating island or in not posting no trespass
signs thereon, as to whether plaintiff had had knowledge of existence of guy wire and as to whether
plaintiff had been proceeding in dark in familiar or unfamiliar place.
OPINION
Appellant on April 25, 1955 was a car parking attendant at the Riviera Hotel in Clark
County, Nevada, owned and operated by respondent. He had been so occupied from the time
the hotel opened on April 19 or 20, 1955. He was not on the payroll of respondent but worked
under one Weeks, the supervisor of the hotel's parking lot, who likewise was not on the hotel
payroll but was subject, as was appellant, to directions from the hotel's general manager and
its bell captain. The compensation of both Weeks and appellant consisted entirely of
gratuities received from guests. Appellant in moving quickly to pick up a guest's car benefited
not only himself as thereby he would earn more gratuities, but also the hotel in furnishing its
guests better service.
On April 25, 1955, between the hours of three and four in the morning, appellant, having
received a guest's claim check at the entrance to the hotel, started off to get the guest his car.
In doing so he crossed an island in front of the hotel, tripped on a 20-foot-long guy wire
which was used to support one of the newly planted trees on the island, fell, and sustained
injuries. There were no flags on the guy wire or elsewhere to warn of its presence, and the
area was not lighted. No signs to keep out of the island which was partially surrounded by a
walkway had been posted.
After hearing appellant's evidence, the trial court, in an oral decision, determined that
appellant's occupation made him a business invitee, but that his position was altered to that of
a mere licensee when he entered the island, and in the absence of respondent's active
negligence appellant took the premises as he found them. The court then went on to say that
the respondent owed appellant only the duty to keep the premises in a reasonably safe
condition and there being no evidence of negligence on the part of defendant the motion for
dismissal may be granted.
Appeal is taken from the judgment of dismissal based on this action of the trial court in
granting respondent's motion to dismiss.
It is appellant's contention that the evidence presented several factual matters which should
have been submitted to the jury. With this we agree.
1. The evidence discloses that the area within the island had not been completed, and that
it was filled with sand preparatory to the planting of grass therein. Appellant customarily
crossed the island as such a route was the quickest, being the shortest distance between the
hotel entrance and the car parking area. He testified, however, that he had never before
crossed the particular part thereof where he tripped and fell. Evidence of witnesses other than
appellant corroborated appellant's testimony that other parking attendants as well as guests of
the hotel customarily used this island as a pathway.
In the case of Babcock & Wilcox Co. v. Nolton, 58 Nev. 133, 71 P.2d 1051, 1053, Mrs.
Nolton while a visitor at the company plant was injured when a company truck driver backed
his car into hers while she was parked in an area marked as restricted to company cars only.
This court approved an instruction to the jury that if it found that the restricted area was
habitually used by visitors for parking, without objection by the company, such customary or
habitual use without objection may give rise to an implication of consent to such use so that
the users may have the status of licensees instead of trespassers.
In the Nolton case customary or habitual use of a restricted area advanced the status of a
trespasser to that of a licensee. Based on the same reasoning, customary or habitual use of the
island in the present case by an invitee who would ordinarily become a mere licensee in using
a part of the premises not covered by the invitation could create an implied invitation to use
the island when such person was on an errand of benefit both to the user and the proprietor.
This would be true, however, only if the proprietor had knowledge of such customary use.
Whether respondent had knowledge of such customary use was a question of fact for the
jury to determine. The island being where it was in front of the main entrance of the hotel and
the showing of its continued use as a pathway by parking attendants and guests presented
evidence which a jury could consider in determining whether the respondent had knowledge
of such customary use.
While there is no direct evidence of knowledge on the part of appellant [Babcock &
Wilcox Co.], we are of the opinion that the circumstances as shown by respondent's witnesses
of the use constantly made of the parking space immediately in front of the office building
used by the superintendent and other officials of appellant tended to prove knowledge on its
part. Babcock & Wilcox Co. v. Nolton, supra.
2. Whether or not appellant had knowledge of the existence of the guy wire prior to his
injury therefrom likewise was a factual question, and this is conceded by respondent.
Appellant testified he had no such knowledge. Circumstances tended to show that he did.
1
If
the jury would conclude that appellant did have knowledge, it would be immaterial whether
his status at the time was that of invitee or licensee; in either event he would not be entitled to
recover. However, if he were a mere licensee, he would not be entitled to recover whether
or not he knew of the existence of the guy wire.
____________________

1
The evidence disclosed that the guy wire was in place from the day the hotel opened; that appellant
customarily crossed the island; that his shift commenced at 6:00 p. m. each day when it was daylight; one of
appellant's witnesses, a fellow car attendant during the day shift, according to his testimony, knew of the
existence of the guy wire prior to the accident.
licensee, he would not be entitled to recover whether or not he knew of the existence of the
guy wire.
From the foregoing it is apparent that factual questions were presented relative to the
following: (1) whether respondent was negligent in not posting some warning of the existence
of the wire, or in not illuminating the island, or in not posting no trespass signs thereon; (2)
the status of appellant as a licensee or invitee; (3) whether or not respondent had knowledge
of the customary use of the island by the car parking attendants; (4) whether or not appellant
had knowledge of the existence of the guy wire; (5) and whether or not appellant at the time
was proceeding in the dark in a familiar or unfamiliar place. See Tryba v. Fray, 75 Nev. 288,
339 P.2d 753.
For this reason it was mandatory for the trial court to submit such factual matters to the
jury in order for it to determine if the defendant was negligent, and if so, whether the
appellant assumed the risk of danger in venturing upon the island or was guilty of
contributory negligence.
Reversed with costs and remanded for further proceedings.
____________
75 Nev. 520, 520 (1959) Schopper v. Kelley
FRED W. SCHOPPER, LENORA A. SCHOPPER, and ROBERTA J. SCHOPPER, dba
SCHOPPER'S NURSERY COMPANY, and CHARLES CUNNINGHAM,
Appellants, v. EDWARD KELLEY, Respondent.
No. 4203
December 11, 1959 347 P.2d 279
Appeal from order of the Second Judicial District Court, Washoe County; A. J. Maestretti,
Judge, Department No. 1, granting new trial.
Action arising out of collision of plaintiff's left-turning automobile with defendants'
approaching pickup truck.
The trial court entered order granting new trial, and defendants appealed. The Supreme Court,
Pike, J., held that the evidence disclosed that there was no abuse of discretion in granting new
trial on ground of insufficiency of evidence to justify verdict for defendants.
Judgment affirmed.
Vargas, Dillon and Bartlett and Alex A. Garroway, of Reno, for Appellants.
Jack Streeter, of Reno, for Respondent.
1. New Trial.
In action arising out of collision of plaintiff's left-turning automobile with defendants' approaching pickup
truck, evidence disclosed that there was no abuse of discretion in granting new trial on ground of
insufficiency of evidence to justify verdict for defendants.
If a motion for a new trial was properly granted on ground of insufficiency of evidence to justify verdict,
it is immaterial whether the trial court was in error in granting the new trial on other grounds.
3. New Trial.
A trial judge has discretion to grant or refuse a new trial.
OPINION
Appeal from an order granting a motion for new trial.
Appellants Schopper and Cunningham were defendants in an action brought by respondent
Kelley to recover damages for personal injuries sustained by Kelley and for damage to
Kelley's car. The jury returned a verdict in favor of appellants, and the trial court granted
respondent's motion for a new trial, from which order this appeal is taken.
At about noon on June 5, 1957 respondent Kelley drove his car in an easterly direction on
Kietzke Lane, a four-lane paved highway, near the point of its intersection with Coney Island
Drive, a two-lane paved highway. Such intersection is situated near the easterly city limits of
Reno, Nevada, and the two highways there intersect at approximately right angles.
limits of Reno, Nevada, and the two highways there intersect at approximately right angles.
Kelley, driving his 1940 Chevrolet sedan, entered the intersection, making a left-hand turn so
as to proceed in a northerly direction on Coney Island Drive. After completing the turn and
while proceeding across the northerly or outside lane for westbound traffic on Kietzke Lane
he was struck by a 1954 Ford pickup truck driven by appellant Cunningham, an employee of
appellants Schopper.
The portion of Kietzke Lane which included the intersection was designated as a
45-mile-per-hour zone by appropriate official highway signs. Stop signs were in place
requiring vehicular traffic along Coney Island Drive to stop before entering the intersection
from either the north or south. There is evidence that Kelley stopped before entering the
intersection and also that he signaled his intention to make a left turn. He testified that he saw
the westbound pickup truck after he had started into the intersection and when the truck was
about 300 feet away.
Cunningham, driver of the pickup, testified that he was driving west in the northerly or
outside lane when he saw the Kelley car in the intersection, some 200 feet distant. He
estimated the speed of the pickup at 38 miles per hour, and testified that although he applied
his brakes he was unable to avoid striking the Kelley car as it was crossing the lane that he
was in. The testimony of the persons present when the accident occurred, other than the
pickup driver, indicates that their estimate of the pickup's speed was about 45 miles per hour.
Marks on the pavement made by the pickup's tires after its brakes were applied extended
eastward 132 feet from the point of collision. The impact of the pickup skidded the Kelley car
sideways for some six feet into a southbound car on Coney Island Drive which had stopped at
the stop sign before crossing the intersection. The impact of the Kelley car as it was forced
into this third car, driven by one Kramer, caused the third car to be forced backwards into a
fourth car, driven by a Mrs. Boynton, which had stopped immediately behind the third car on
Coney Island Drive. A university faculty member in the field of physics, Dr.
member in the field of physics, Dr. George Barnes, testified as an expert and, in response to
hypothetical questions, stated that his computations showed the pickup to be traveling some
54 miles per hour at the time of collision.
As indicative of the volume of traffic on Kietzke Lane, Kramer, the driver of the car which
was struck by the skidding Kelley car, estimated that 35 or 40 vehicles traveling at various
speeds, had passed while he was waiting for an opportunity to cross Kietzke Lane.
Respondent Kelley testified that at least six or eight cars had passed on Kietzke Lane at
speeds of about 35 miles an hour as he waited at the intersection before entering it and
making his left-hand turn.
[Headnotes 1, 2]
In returning its verdict in favor of appellants the jury indicated that it had based such
verdict upon the court's instruction relating to contributory negligence. Although respondent's
motion for new trial stated that it was made upon the several statutory grounds enumerated
therein and the order granting respondent a new trial stated the same grounds, a review of the
entire record indicates that the only ground requiring our consideration is that of the asserted
abuse of discretion of the trial judge in granting a new trial because of insufficiency of the
evidence to justify the verdict. This court has held that if a motion for a new trial was
properly granted on this ground it is immaterial whether the trial court was in error in
granting the new trial on other grounds. Nevada Rock & Sand Co., Inc. v. Grich, 59 Nev. 345,
93 P.2d 513.
[Headnote 3]
Appellants recognize that a trial judge has discretion to grant or refuse a new trial, but
assert that, in the instant case, there was an abuse of discretion by the trial judge in granting
the motion for new trial.
Appellants and respondent refer to the decision of this court in Nevada Rock & Sand Co.,
Inc. v. Grich, supra, and respondent also places reliance upon the later decisions of this court:
Arrowhead Freight Lines, Ltd. v. White, 71 Nev. 257
White, 71 Nev. 257, 287 P.2d 718; Aeroville Corp. v. Lincoln County Power Dist. No. 1, 71
Nev. 320, 290 P.2d 970; Pagni v. City of Sparks, 72 Nev. 41, 293 P.2d 421.
The earlier decision of Goldfield Mohawk Mining Company v. Frances-Mohawk Mining
& Leasing Co., 33 Nev. 491, 112 P. 42, 43, also relates to the point requiring determination
here. In the last cited case the jury returned a verdict for plaintiff and defendant moved for a
new trial urging the statutory ground of insufficiency of the evidence to justify a verdict.
The trial court refused to pass upon such ground and stated in effect that his reason for such
refusal was that he did not consider that it was a proper exercise of judicial discretion for the
trial court to set aside the verdict of a jury because, in the mind of the judge, the evidence did
not justify the result. This court reversed the trial court on such ruling and set aside its order
denying a motion for a new trial, with instructions to the trial court to consider and pass upon
such ground. In holding that the trial judge had misconceived his judicial duty in failing to
pass upon this vital ground of error and, in doing so, had deprived the movant of a substantial
right, the decision reads, 33 Nev. 491, 496, 112 P. 42, 44, It is made his [the trial judge's]
duty under the law, upon motion for a new trial, where this ground [insufficiency of the
evidence to justify the verdict] is assigned, to review the evidence, and if he is clearly
satisfied in his judgment that the evidence is insufficient to sustain the verdict to set it aside,
and if sufficient to refuse to disturb it, and in the discharge of his official duty under his oath
of office he is required to so act. Authorities of similar import from the courts of other
jurisdictions were then reviewed and quoted with approval.
In Arrowhead Freight v. White, supra, a negligence action, following the jury's verdict for
defendants, plaintiff's motion for new trial was granted upon the grounds of insufficiency of
evidence and that the verdict was against law, and the defendant appealed from that order.
This court affirmed the action of the trial court in granting a new trial.
granting a new trial. After commenting that the law of Nevada on the point then being
considered was well digested in Nevada Rock & Sand Co. v. Grich, supra, the court stated, 71
Nev. 257, 258, 287 P.2d 718, The question is not whether we, as an appellate court, on the
record before us, would have reversed the jury's verdict as without evidentiary support. The
question, rather, is whether upon that record the trial court can be said to have abused its
discretion in granting new trial. As stated in Treadway v. Wilder, 9 Nev. 67, 70, It must be
borne in mind that the nisi prius courts in reviewing the verdict of juries are not subject to the
rules that govern appellate courts. They may weigh the evidence and if they think injustice
has been done grant a new trial where appellate courts should not or could not interfere.' The
decision then reviewed the evidence and held, 71 Nev. 257, 261, 287 P.2d 718, 720, Upon
the record we cannot say that the trial court was clearly wrong in its judgment or that there
was a clear preponderance of evidence in favor of the verdict. The court's order granting new
trial must, then, be held a proper exercise of discretion. Nevada Rock & Sand Co. v. Grich,
supra.
The decision of this court in Aeroville v. Lincoln Power, supra, a land condemnation case,
likewise involved a situation where the trial court granted a new trial and, upon appeal, such
action was affirmed as, from a review of the record, it could not be said that the trial judge
was clearly wrong in granting the new trial.
Pagni v. City of Sparks, supra, was a negligence action against the city of Sparks and its
contract garbage haulers. The jury returned a verdict for the plaintiff, and the court granted a
new trial to the defendants. The main question raised by the appeal was whether the trial
court abused its discretion in so granting a new trial. The decision reiterated the above
outlined principles to be applied for the purpose of determining whether or not there had been
an abuse of discretion by the trial court in granting the new trial, recognized the above cited
authorities as governing the application of the rules to the particular evidence before the
court, and held that there had been no abuse of discretion in the order appealed from.
rules to the particular evidence before the court, and held that there had been no abuse of
discretion in the order appealed from.
From a consideration of the evidence in the instant case and of the legal authorities
enunciating the foregoing principles for the determination of the issue now before us, we
conclude and hold that there was no abuse of discretion on the part of the trial court in
vacating the jury verdict in favor of appellants and in granting respondent's motion for a new
trial.
The order of the trial court granting new trial and vacating judgment, affirmed, with costs
to respondent.
____________
75 Nev. 526, 526 (1959) Smith v. District Court
RAYLAND SMITH, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT of the State
of Nevada, in and for the County of Churchill, and HONORABLE
RICHARD R. HANNA, Presiding Judge, Respondents.
No. 4255
December 14, 1959 347 P.2d 526
Proceeding on original petition for writ to prohibit respondent court and judge from trying
petitioner on charge of first degree burglary. The Supreme Court, Badt, J., held that
information charging that defendant willfully, and burglariously entered in the nighttime the
open portion of a certain motor vehicle with intent then and there to commit larceny did not
charge an act which was within the statutory definition of burglary, and since information did
not charge defendant with commission of felony, respondent court and judge were without
jurisdiction to proceed to try them on that charge.
Writ issued.
Diehl and Recanzone, of Fallon, for Petitioner.
Raymond Free, District Attorney, Churchill County, for Respondents.
1. Statutes.
When intention of legislature is in doubt as to definition of burglary legislative act must be strictly
construed.
2. Burglary.
Information charging that defendant willfully, intentionally and burglariously entered in the nighttime
open portion of a certain motor vehicle, to wit: a 1956 pickup, with intent then and there to commit larceny
did not charge an act within the statutory definition of burglary and hence court had no jurisdiction to
proceed to try him on charge. NRS 193.010, subd. 8, 205.060.
OPINION
Petitioner seeks a writ of prohibition to prohibit the respondent court and judge from
trying him on a charge of first degree burglary. We agree with his contention that the act
charged in the information is not within the statutory definition of the felony.
NRS 205.060 defines burglary as follows: Every person who enters any house, room,
apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building,
tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car, with intent to
commit grand or petit larceny, or any felony, is guilty of burglary. The statute then defines
burglary of the first degree as that committed in the nighttime, and fixes the punishment as
imprisonment for not less than one nor more than 15 years.
NRS 193.010(8) gives the following definition:
Enter,' when constituting an element or part of a crime, shall include the entrance of the
offender, or the insertion of any part of his body, * * *.
The information charged that the defendant did wilfully, intentionally, feloniously, and
burglariously, enter, in the night time, the open portion of a certain motor vehicle, to wit: a
1956 Ford pickup * * * with the intent then and there to commit larceny. It is conceded by
respondents that their construction of the language used in the information, "the open
portion of a * * * pickup," would include a platform body.
used in the information, the open portion of a * * * pickup, would include a platform body.
[Headnote 1]
If the intention of the legislature is in doubt as to defining as burglary the defendant's act
as charged in the information, the legislative act must be strictly construed. Ex Parte Todd, 46
Nev. 214, 210 P. 131; Ex Parte Smith, 33 Nev. 466, 111 P. 930.
Under a similar statute making the entry of a railroad car burglary, a defendant was
charged in the State of Washington with entering a railroad flatcar loaded with sacks of wheat
entirely covered by a heavy canvas tarpaulin securely fastened at the sides and ends of the car
to form a roof and sides. The Supreme Court of Washington affirmed the lower court's order
sustaining a demurrer to the information. State v. Petit, 32 Wash. 129, 72 P. 1021, 1022. The
court first defined the question presented to it as: [I]s the car * * * described in the
information a railroad car, such as was within legislative contemplation * * *? In precisely
the same manner the question before us is: Is the open portion of a pickup (which may even
include a platform body) within the statutory contemplation of a vehicle. The Washington
court said: These cars, it seems to us, do not come within the definition [of burglary] given
by the statute, which evidently had relation to box cars, or some kind of a car that is inclosed
so that an entry can be made. Under the ordinary understanding of the words break and enter'
it is difficult to see how a person could break and enter a flat car loaded with wheat upon
which a canvas is laid.
The court explained this conclusion as follows: The common-law definition of burglary is
breaking and entering the dwelling house of another in the nighttime with intent to commit a
felony. It is not true, we think, that by codific evolution the species has been entirely lost.
While there has been an enlargement of the definition, the central idea which has obtained for
hundreds of years, viz., the unlawful breaking and entering of some kind of an inclosed
structure, has been retained, the statute finally dropping the element of breaking when the
structure was unlawfully entered in the nighttime; and we do not think that it was the
legislative intent to confuse the crimes of burglary and larceny, or substitute one
definition for the other.
statute finally dropping the element of breaking when the structure was unlawfully entered in
the nighttime; and we do not think that it was the legislative intent to confuse the crimes of
burglary and larceny, or substitute one definition for the other. It is no doubt true that the
Legislature has the power to denominate any kind of larceny, or, for that matter, any other
crime, burglary; but in legislating on crimes the definitions of which have been so well and
commonly understood as the crimes of burglary and larceny, the substitution will not be
presumed unless the intention is manifestas it is not in this case.
[Headnote 2]
The case is directly in point and we approve its reasoning. In accord are State v. Duran,
127 Mont. 233, 259 P.2d 1051 (under statute making an automobile the subject of burglary,
held it was not the legislative intent to include trucks, where defendant was charged with
entering the cab thereof by opening a door); Gibbs v. Mayo, Fla., 81 S.2d 739 (in which it
was held that breaking and entering a motor vehicle was not within statutory offense of
breaking and entering an automobile); State v. Puckett, 95 S.C. 114, 78 S.E. 737, 46 L.R.A.,
N.S., 999 (in which entry of porch attached to house, the porch being protected by a
balustrade and low picket gates to keep out dogs and chickens, was held not within statute
defining burglary); People v. Gibbons, 206 Cal. 112, 273 P. 32 (in which entry of a bin
having three sides and a roof, was held not within statute). But see People v. Silver, 16 Cal.2d
714, 108 P.2d 4, holding contra to the California District Court of Appeal in the same case,
102 P.2d 763, which had cited People v. Gibbons, supra. The California Supreme Court did
not, however, reject People v. Gibbons. The disposition of courts to construe strictly their
burglary statutes which deviate from the common law appears to be clearly evident. We are
compelled to reject respondents' contention that to hold one's hand over the platform body of
a truck with intent to commit larceny is the entry of a vehicle.
As the information does not charge the defendant with the commission of a felony,
respondents are without jurisdiction to proceed to try him on that charge.
with the commission of a felony, respondents are without jurisdiction to proceed to try him on
that charge. Houser v. District Court, 75 Nev. 465, 345 P.2d 766.
Let the writ of prohibition issue.
____________
A SPECIAL SESSION
of the
SUPREME COURT
of the
STATE OF NEVADA
Monday, October 5, 1959
75 Nev. 533, 533 (1959) Special Session
SPECIAL SESSION OF SUPREME COURT
Monday, October 5, 1959
A special session of the Supreme Court of the State of Nevada, commencing at ten a.m.,
Monday, October 5, 1959.
Present: Chief Justice McNamee (presiding), Justices Badt, Merrill, and Pike; Officers of
the Court; Relatives and Friends.
____________
McNamee, C. J.:
Ladies and gentlemen, this session of court has been called for the purpose of paying
tribute to our Justice Charles M. Merrill who leaves the bench after a long period of service to
the bench and bar of the State, and also to welcome Justice Miles N. Pike who joins the court
today.
Of course we cannot help but be filled with deep emotion, as is natural when a happy
period of relations comes to an end, but, on the other hand, in the future as we look back on
our close, friendly and warm association with Justice Merrill we will forget this present
emotion and remember with pleasure the minutes, hours and days we have spent together.
At this time I would like to call on Mr. Douglas Busey, President of the State Bar of
Nevada.
Mr. Douglas Busey (President, State Bar of Nevada):
May it please this Honorable Court, Chief Justice McNamee, Justice Badt, Justice
Pike and Retiring Justice Merrill, Ladies and Gentlemen: executive appointment, as it is
asserted that the quality, ability and integrity of the appointee is almost uniformly upon
the highest level.
The selection of Justices of the Supreme Court is made by election in some states, such as
in Nevada. In other states the selection is made by exercise of the power of appointment. In the
latter jurisdictions it is contended that sound reason supports the system of selection
executive appointment, as it is asserted that the quality, ability and integrity of the appointee
is almost uniformly upon the highest level. Nowhere in the United States today is there
superior demonstrative evidence supporting the existence of this assertion than in the
personnel of the Supreme Court of Nevada. Justice Badt was appointed by Governor Vail
Pittman. Chief Justice McNamee was appointed by Governor Charles Russell. Justice Pike
was appointed by Governor Grant Sawyer. Of the quality, ability and integrity of these men I
have personal knowledge. I had the privilege of serving for many years on the Board of Bar
Examiners with Justice Badt, and thereafter the opportunity of appearing before him on many
instances as a Justice of this Honorable Court. I had the opportunity of appearing before Chief
Justice McNamee at a time when he was Judge of the District Court of Clark County on
numbers of occasions and, in addition, I have had a personal acquaintanceship with him
extending back to the Thirties.
During the years 1925 to 1929, Justice Pike lived at 634 South Virginia Street in
Reno. During those same years I lived at 21 Thoma Street, just around the corner. Jack
always walked to work, winter and summer. I had 7:45 classes at the University of Nevada.
On many occasions I walked with Jack from his home to what is now the First National Bank
Building, First and Virginia Branch, where Jack practiced his profession in the law officers of
Albert Ayres and Bill Gardiner. He was my first personal contact with a lawyer. I have known
him well since in the lawyers' world in Reno. Several years ago I had the opportunity of
seeing and hearing Justice Pike, as the then United States Attorney, prosecute an important
criminal case during a three-week trial in the United States District Court. He conducted as
able a prosecution in that case as I have ever witnessed in any case. So I say here today, on
behalf of the State Bar of Nevada, that once again there has been elevated to this Honorable
Court a man of the highest character, ability and integrity.
In the departure to the United States Court of Appeals for the Ninth Circuit of Justice
Charles M.
Merrill, the people of this State as well as of the State Bar of Nevada have suffered a great
loss. In the appointment to this Honorable Court of Justice Pike, the people of the State as
well as the State Bar have realized a great gain.
We of the State Bar of Nevada know that Justice Pike will serve with wisdom, ability
and integrity. Upon the subject of the wisdom of judges there is a story of a judge of old.
Phillip of Macedon was called upon to divide a piece of land between two brothers, left to
them by a deceased father. His decision was, Let the first brother divide the land. Let the
second brother have the first choice. Justice Pike will serve with that same high degree of
wisdom and impartiality.
We are deeply regretful in the departure of Justice Merrill who has served us for so
many years. We are deeply affected by his loss to us. We are, at the once, proud of and deeply
pleased with the appointment of Justice Miles N. Pike to the Supreme Court of Nevada.
(Mr. Busey concludes.)
McNamee, C.J.:
Thank you very much, Mr. Busey.
I would like to call on Mr. Clark Guild, Jr., representing the Washoe County Bar
Association.
Mr. Clark Guild, Jr. (President, Washoe County Bar Association):
Your Honors, Ladies and Gentlemen:
I take issue with my partner, Mr. Busey, only in one respect. I think this should be
considered one of the most festive occasions in the history of the legal profession and the
judiciary of the State of Nevada.
We from the Washoe County Bar who have, for many years past, had close personal
association with Mr. Justice Merrill and with Mr. Justice Pike, welcome them both to their
new positions.
To you, Mr. Justice Pike, I can safely say that you look well in the robe that you wear.
You sit well in the seat that you occupy.
To Mr. Justice Merrill, we are happy that you are stepping into a new position that
you have sought and to which the people of the United States through their elective officers
and their President have appointed you. We reserve, Mr. Chief Justice, the right to say further
words on Thursday, October 8, at 3:00 P.M. on behalf of Mr. Justice Merrill.
At this time we can only say that we are indeed gratified to see Mr. Justice Pike sitting
in the seat he now occupies.
Thank you.
(Mr. Guild, Jr. concludes.)
McNamee, C.J.:
Thank you, Mr. Guild.
Mr. Homer Angelo, would you say a few words, representing the Ormsby County
Bar?
Mr. Homer Angelo (President, Ormsby County Bar Association):
Mr. Chief Justice, Members of the Court, Ladies and Gentlemen.
Like my colleagues of the Washoe Bar, I also speak with mixed feelings today. First,
on behalf of the members of the bar of the First Judicial District and the citizens of Ormsby
County, Justice Merrill, we have a genuine feeling of regret that you are leaving. In the past
few years we have come to know you, your family, your warmth, your integrity. We have also
come to learn a bit of our own war between the states and we will miss the opportunity of
being refreshed on that series of incidents as you have related it to us. We also join in
expressing our sense of honor in your appointment, and the Ninth Circuit Court's gain is our
honor, even though it is our loss.
Justice Pike, we wish to welcome youto re-welcome youbecause we have felt in
Ormsby County you have belonged here from your early years in this area, your work as
United States Attorney, your family relationships in Carson City. You are really one of us as
well as one of Washoe County.
one of Washoe County. We welcome you to the bar of the First Judicial District. As we
mentioned when Justice McNamee came on the Supreme Court bench, you are now at the site
of the least formal bar association in the world; we have no officers and no dues. (Laughter
from the audience.)
It is also my pleasure this morning to speak on behalf of the State Bar of California of
which you are a member. On behalf of the bar of our sister state, we wish to congratulate you,
Justice Pike, upon your elevation to the bench of this Court.
Also I wish to speak, in addition to my responsibilities on behalf of the citizens of
Ormsby County, for the veterans' organizations of the State. Justice Pike is one of our
foremost veterans. We are proud of your elevation to this responsibility in this highest court.
Thank you, Your Honors.
(Mr. Angelo concludes.)
McNamee, C.J.:
Thank you, Mr. Angleo.
There are many prominent lawyers and laymen in the audience. Perhaps a
representative of the Attorney General's office, Mr. Attorney General Foley, would you like to
say a few words?
Attorney General Roger Foley:
Mr. Chief Justice, Justices, Mr. Justice Pike. I hadn't anticipated this honor, but I think
that I might say on behalf of the members of the Clark County Bar Association that they sent
you their heartiest congratulations. I heard the thought expressed a moment ago how well the
robe befits you and the chair befits you, and the same thought had occurred to me when I first
saw you come in.
On behalf of myself, and my brothers, and the staff of the Attorney General's office,
and your good friend Judge Foley, we all are very happy to see you here today.
Thank you.
(Attorney General Foley concludes.)
McNamee, C.J.:
Thank you, Mr. Foley.
At this time I am sure that Justice Badt would like to say a few words.
Badt, J.:
Thank you, Mr. Chief Justice.
Again the personnel of the Supreme Court has changed. Again we say, Hail and
farewell! Vale, vade. And I think the emotions must be mixed, despite the slight
discrepancy and conclusions come to by Mr. Busey and Mr. Guild, because the situation is
too poignant a one to divorce from our minds the new associations that are beginning, the old
associations that are being broken.
To Judge Pike we extend the hand of greeting and express our confidence and our
pride. We know that with Mr. Justice Pike on the bench here the high traditions of the Court
will be carried on. Never have we fallen from those high traditions, and I trust that the Court
never will fall from those high traditions. We are confident we shall not. With the Chief
Justice, with myself, and with Justice Pike we think we can carry on. The burden is a very
heavy one and a constantly increasing burden, entailing additional work, additional time
spent, but we have no hesitation in stepping into the arduous duties of the Court under those
conditions.
And to Mr. Justice Merrill who leaves us, it is hard to express even to the bar, let
alone to a layman, the closeness of association between members of the Court. Mr. Justice
Merrill has sat with us here, or with me, let us say, because Mr. Chief Justice McNamee has
been a member of the bench only since last December. We have sat side by side for some
eight years listening to arguments by counsel, and then retiring to our chambers for the real
work that we do in the consideration of the arguments of counsel, with the briefs that have
been filed, and the further research we do, on our own behalf, of the authorities. There we do
our work, in chambers, there we argue out the case and come to our decisions.
In that period of eight years of association with Justice Merrill, I think I can say
without any hesitation at all that I have never encountered and worked with a keener mind, a
more analytical mind, a mind more attuned to not only the abstract justice of the case but to
the logic of the arguments of counsel, cutting through many of the issues that have been
raised and going unerringly to the meat of the case. That has been evidenced time and time
again during oral argument here, with members of the Court questioning counsel and
pinpointing the questions of law that are raised here. Sometimes counsel have been a bit
perturbed by that, and disturbed, in their arguments. In most cases counsel who have well
prepared their cases before arguing here, welcome such questions and are glad the questions
are asked and pinpointed. There are many issues of the case which they then accentuate more
fully to the Court.
On all of these occasions, as I say, I have never observed at work a keener or more
analytical mind than has been constantly evidenced by Justice Merrill. Not that we always
agreed! We have sometimes had strenuous arguments in chambers, and I think even since
Chief Justice McNamee has been with us some of the cases have been submitted to pretty
strenuous arguments and occasional dissents, but in most cases a gradual bringing together of
views of all three, to the end that a proper opinion might be written which will not only
decide the case but will not violate any principle of law and will not endanger the nature of
the opinion as precedent for future cases. We are going to miss Justice Merrill tremendously.
You have some very important shoes to fill, Mr. Justice Pike. I know you will be
equal to the occasion. Your reputation among the bench and bar of the State is of the very
highest, and it is with great delight we have had so many members of the bar come to us and
say, This was a fine appointment. We know Justice Pike will do a great job on that bench.
We know that you will appreciate and enjoy your association with him. I am sure that we
will.
So, again (turning to Justice Pike), welcome, and (turning to Mr. Justice Merrill),
farewell.
(Mr. Justice Badt concludes.)
McNamee, C.J.:
Thank you, Justice Badt.
In saying goodbye to you, Justice Merrill, as a member of this Court, I want you to
know I have appreciated the wisdom and the help you have shown me as the new member of
the Court, and your consideration and tolerance with my expressions of opinion since I have
been sitting here. At this time I wish you would say a few words.
Merrill, J.:
Thank you, Mr. Chief Justice.
It is not an easy thing for one who has been on this Court as I have for more than the
past eight years (with the associations which I have known here, the personnel of the Court,
and of the various Court attachs), to leave this Court and this Courtroom. This has been
without question the happiest and most stimulating and exciting period of my life, and my
experiences on the bench here in Carson City will live with me the rest of my life.
I appreciate very much what Justice Badt said with reference to the process by which
our Court ordinarily arrives at agreement, because I have never found anyone with whom I
enjoyed the process of argument and discussion more than with Mr. Justice Badt, and I have
never found anyone who made it easier for one eventually to agree that he was in error and
that Mr. Justice Badt was correct in the conclusions reached. (Laughter from the audience.) It
was even an enjoyable process with him which certainly cannot be said to be true in most
cases where lawyers differ.
I am looking forward with great excitement and interest to my new duties, but I do
know this: that they certainly cannot compare with what I have known here in congeniality
and the quality of my associates, my colleagues on the bench.
in congeniality and the quality of my associates, my colleagues on the bench. I don't think that
anything could ever compare with that.
The one part of my leaving that does give me pleasure is the fact that Mr. Justice Pike
will be now sitting on this Court. Justice Pike was the first lawyer I met in the State of
Nevada. I liked him when I met him. My respect for him was immediate and has grown ever
since with the passing of the years. Our two law firms were very closely associated, and the
occasions for my being in touch with Jack Pike were frequent and very close. I simply cannot
explain to the members of the bar the feeling of gladness that touched the Court when we
heard who it was who had been nominated to this Court. Of course it is extremely important
to the members of this bench to know with whom they are to serve, and when the news
became public it was certainly welcome news here in this Court and in this Courthouse.
Jack Pike has a background of wide experience in various areas of the law important
in this State. He has shown his ability as an attorney, as a lawyer's lawyer. He has also had
occasion frequently to show his dedication to public service. We know of his judicial
temperament and integrity. He has everything that a judge should have, and I know will add
greatly to the Court in his duties here.
I am sorry only that I will not myself have the opportunity to serve on the bench with
Mr. Justice Pike. I am sure it would be a happy experience. But I have had my measure of joy
in my associations with Mr. Justice Badt and in Mr. Chief Justice McNamee and in former
Justice Edgar Eather. I certainly could not have chosen finer companions on the bench, and
they will be missed, as well as all of the personnel in connection with the Court.
I thank you, Mr. Chief Justice McNamee, for having me here today. I appreciate this
opportunity very much. Thank you.
(Mr. Justice Merrill concludes.)
McNamee, C.J.:
Thank you.
Mr. Justice Pike, I want you to know that we are looking forward now to continuing
the work of this Court to the very best and highest of its traditions, and we have great
confidence that that will continue with you on this bench. At this time I would like to hear,
and all of us would like to hear, a few words from you.
Pike, J.:
Mr. Chief Justice McNamee, Justice Badt, Retiring Justice Merrill. For the first time
in some 30 years I am addressing the Nevada Supreme Court while sitting. This in no way
indicates any change in my respectful attitude for this Court. It is the existing protocol, as a
member of the Court.
It has been my fortunate experience through these many years to appear before Federal
and State courts of Nevada, before judges whose ability, understanding, fairness, and integrity
were impressive not only to the members of the bar but to the people of this State and our
neighboring commonwealths. Likewise, through that same period of time, it has been my
pleasure and privilege to associate with members of the bar who could be similarly
characterized. All this has been a source of deep and lasting personal friendships.
In coming to the bench it was through the circumstance of Justice Merrill being
elevated to the post of Justice of the Ninth Circuit Court of Appeals, the Federal appellate
court that has appeal jurisdiction over many of these western states including our states of
Alaska and Hawaii. In assuming that responsibility, he will sit as a member of the court
which is just below the highest court of the land, the United States Supreme Court which
convened today for its fall session. Our acquaintanceship has gone back many years when we
were both starting to practice law. Through that time Justice Merrill advanced to every
recognition that could have been accorded one. As a practicing attorney he was obliged to
meet many responsibilities in which he demonstrated not only his ability but his full
consideration of the human rights involved in various complicated situations.
obliged to meet many responsibilities in which he demonstrated not only his ability but his
full consideration of the human rights involved in various complicated situations. This was in
connection with his work not only as attorney before the courts but as a member of the
important committees and functioning arms of the self-governing body of the State of
Nevada. Throughout the State he has received the endorsement and the acclamation of the
judges and members of the bar and the public. With this recognition he is the second man
from the State of Nevada in the history of our State, designated by the President and
confirmed by the Senate of the United States, to serve on this high court under a lifetime
appointment. It is significant that Nevada, relatively small though its population be, has had
two members on that Court. In our recent meeting of the Bar Association, many of us again
had the pleasure and privilege of mingling with Senior Circuit Court Judge William E. Orr,
now retired in a sense from the Ninth Circuit Court of Appeals, who has never in any way lost
his ties and affections for the State of Nevada and returns at every opportunity as we are sure
Justice Merrill will.
For myself, the Clerk of this Court opened the door behind these chairs of the Court
and let me look into the Courtroom from the other side, and that is the first time I have come
in from the other side of the bench. I can't say that it is different. It is the same Courtroom.
For not an inconsiderable part of my years of practice I have looked at judges and wondered
what they were thinking about, and I must say that, to date, that mystery has not been solved.
(Laughter from the audience.) As an incoming member of the Court I have no doubt that there
will be ample work directed to my attention to help me work in that direction to see how a
particular line of thinking develops.
This morning I am in the presence of Justice Merrill who is leaving, but not too far
away, Chief Justice McNamee and Justice Badt, and of men that I have respected and whose
friendship I have enjoyed for many years.
respected and whose friendship I have enjoyed for many years. The same is true of the
personnel of the Court. None of them are strangers. In the presence of you friends, members
of the bar, and relatives, I say to you simply that the responsibilities and duties of this office
are known to me and that, within my capabilities, I most certainly shall do my best to meet
and discharge them properly.
Thank you very much.
(Mr. Justice Pike concludes.)
McNamee, C.J.:
Thank you, Mr. Justice Pike.
If you will arise, I will administer the oath.
(Mr. Justice Pike arises, and the Oath of Office of Justice of the Supreme Court of
Nevada is administered to him by Chief Justice McNamee.)
McNamee, C.J.:
The Court, for this session, stands adjourned.
(Whereupon Court adjourned at 10:40 a.m.)
Anna Rebol, Official Reporter.
____________

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