Nevada Reports 1971 (87 Nev.) PDF

87 Nev.
1, 1 (1971)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 87
____________
87 Nev. 1, 1 (1971) Lindsay v. States
GREGORY M. LINDSAY, Appellant, v. STATE
OF NEVADA, Respondent.
No. 5983
January 14, 1971 478 P.2d 1022
Appeal from judgment of conviction of the Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Defendant was convicted before the district court of sale of marijuana to a undercover
agent, and he appealed. The Supreme Court, Thompson, J., held that conviction was required
to be reversed where it was not clear on what basis evidence of two subsequent sales of
marijuana to same undercover agent was admitted, court did not excuse jury and first
determine whether probative value of such evidence outweighed its prejudicial impact and
jury was not instructed as to limited purpose for which such evidence was received.
Reversed.
Charles E. Springer, of Reno, and H. Dale Murphy, Public Defender, Washoe County, for
Appellant.
Harvey Dickerson, Attorney General, of Carson City, William J. Raggio, District Attorney,
Kathleen M. Wall, and Gary R. Silverman, Deputy District Attorneys, Washoe County, for
Respondent.
1. Criminal Law.
Evidence of other offenses is to be excluded unless such evidence is relevant to prove the commission of
the crime charged with respect to motive, intent, identity, absence of mistake or accident, or common plan
or scheme.
2. Criminal Law.
Where charge is narcotic offense, evidence of other prior similar offenses may be received to show
defendant's knowledge of narcotic nature of substance sold.
3. Criminal Law.
Conviction of sale of marijuana to undercover agent was required to be reversed, where it was not clear
on what basis evidence of two subsequent sales of marijuana to same undercover agent was admitted, court
did not excuse jury and first determine whether probative value of such evidence outweighed its prejudicial
impact and jury was not instructed as to limited purpose for which such evidence was received.
OPINION
By the Court, Thompson, J.:
A jury convicted Lindsay of the sale of marijuana to an undercover agent of the Reno
Police Department. Substantial evidence supports the conviction, notwithstanding a conflict
of testimony on material points. Of the several assigned errors, we find only one to possess
merit and limit this opinion accordingly.
[Headnotes 1, 2]
Over objection, the prosecutor was allowed to introduce evidence of two subsequent sales
of marijuana by Lindsay to the same undercover agent. The basis upon which such evidence
was offered and received is not clear from the record. Nevada follows the rule of exclusion
concerning evidence of other offenses, unless such evidence is relevant to prove the
commission of the crime charged with respect to motive,
1
intent,
2
identity,3 the absence of
mistake or accident,4 or a common scheme or plan.5 Tucker v. State, S2 Nev. 127
____________________

1
State v. Cerfoglio, 46 Nev. 332, 205 P. 791 (1923).

2
State v. Vertrees, 33 Nev. 509, 112 P. 42 (1910); State v. McMahon, 17 Nev. 365, 30 P. 1000 (1883); State
v. Elges, 69 Nev. 330, 251 P.2d 590 (1952); Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961); Wyatt v.
State, 77 Nev. 490, 367 P.2d 104 (1961); Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (1965).
identity,
3
the absence of mistake or accident,
4
or a common scheme or plan.
5
Tucker v.
State, 82 Nev. 127, 412 P.2d 970 (1966). And, where the charge is a narcotic offense, other
prior similar offenses may sometimes be received to show the defendant's knowledge of the
narcotic nature of the substance sold.
6

[Headnote 3]
As before noted, the record is not clear on what basis the evidence was offered and
received. There is a hint that the prosecutor believed it admissible under the common scheme
or plan exception to the exclusionary rule. If this was his belief, he was mistaken. Fairman v.
State, 83 Nev. 137, 425 P.2d 342 (1967); Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959).
Other than the mentioned hint, nothing appears to explain why the evidence was allowed. The
court did not excuse the jury and first determine whether the probative value of the evidence
outweighed its prejudicial impact upon the defendant. Cf. Nester v. State, supra; Wyatt v.
State, 77 Nev. 490, 367 P.2d 104 (1961). The jury was not instructed as to the limited
purpose for which such evidence was received. Nester v. State, supra; Jones v. State, 85 Nev.
4, 448 P.2d 702 (1969); Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970). Absent an
appropriate instruction, the jury was free to use that evidence in anyway it desired and may
have done so. Even when all safeguards concerning the reception of such evidence are
observed prejudice is present, but the evidence is sometimes received because of the judge's
belief that its probative value is essential to the case. When those safeguards are ignored the
prejudice well may be devastating.
Reversed.
Zenoff, C. J., Batjer and Mowbray, JJ., and Mann, D. J., concur.
____________________

3
State v. Roberts, 28 Nev. 350, 82 P. 100 (1905); Nester v. State, 75 Nev. 41 334 P.2d 524 (1959).

4
State v. McMahon, supra; Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965).

5
Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967).

6
Mayer v. State, 86 Nev. 466, 470 P.2d 420 (1970); Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969);
Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967); Fairman v. State, supra; Overton v. State, 78 Nev. 198,
370 P.2d 677 (1962); Wallace v. State, supra. See also: Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970).
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87 Nev. 4, 4 (1971) Ellison v. State
CLAUDE LARKIN ELLISON, Appellant, v. STATE
No. 6173
January 14, 1971 479 P.2d 461
Appeal from judgment of conviction of the First Judicial District Court, Churchill County;
Richard L. Waters, Jr., Judge.
Defendant was convicted in the district court of cattle theft, and he appealed. The Supreme
Court held that where evidence of defendant's guilt was substantial, and trial court instructed
jury that counsel's statements were not evidence, several statements by prosecutor which
suggested guilt and which were made in relation to evidence pointing to guilt were harmless.
Affirmed.
Martillaro and Bucchianeri, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and Dennis E. Evans, District
Attorney, Churchill County, for Respondent.
Criminal Law.
Where evidence of defendant's guilt of cattle theft was substantial, and trial court instructed jury that
counsel's statements were not evidence, several statements by prosecution which suggested guilt and which
were made in relation to evidence pointing to guilt were harmless. NRS 177.255.
OPINION
Per Curiam:
A jury found Ellison guilty of cattle theft. We are asked to void the conviction because the
prosecutor expressed his belief that the defendant was guilty. The evidence of guilt was
substantial. Its sufficiency is not questioned. The court instructed the jury that counsel's
statements were not evidence. The prosecutor's several statements suggesting guilt and his
belief therein were made in relation to evidence pointing to guilt. Cf. State v. Cyty, 50 Nev.
256, 256 P. 793 (1927). Although the prosecutor should not have expressed his belief, his
statements, within the context of this case, were harmless. NRS 177.255.
1

Affirmed.
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1
Other assigned errors are not considered since no supporting authority is offered and none concern
constitutional rights.
____________
87 Nev. 5, 5 (1971) Picking v. Day and Night Elec., Inc.

DOUGLAS B. PICKING and CONNIE JO PICKING, Appellants, v. DAY AND NIGHT
ELECTRIC, INC., a Corporation, Respondent.
No. 6228
January 18, 1971 479 P.2d 461
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Electrical contractor brought action against homeowners to recover amount allegedly due
for rewiring house. The district court rendered judgment in favor of electrical contractor and
the homeowners appealed. The Supreme Court held that evidence that electrical contractor's
bid of $600 referred only to rewiring of two rooms of house and not entire house sustained
judgment of $1,596.91 for rewiring of entire house.
Affirmed.
Lester H. Berkson, of Stateline, and Jerry C. Lane, of Carson City, for Appellants.
Manoukian & Manoukian, of Zephyr Cove, for Respondent.
Contracts.
Evidence that electrical contractor's bid of $600 for rewiring work related only to two rooms of house
sustained judgment of $1,596.91 in favor of contractor for rewiring entire house.
OPINION
Per Curiam:
This is an appeal from a $1,596.91 judgment in favor of the respondent-plaintiff, Day and
Night Electric, Inc., and against appellants-defendants, Douglas B. Picking and Connie Jo
Picking. The Pickings seek a reversal and remand to the district court with instructions to the
lower court to enter judgment against them for $600 only.
1
The $600 figure grows out of a
letter that Day and Night had sent the Pickings offering to do the electrical rewiring in the
Pickings' home, which they planned to remodel. The controversy arises regarding the number
of rooms that Day and Night agreed to rewire. Day and Night claims the $600 figure covered
two rooms only, and not the entire house that was remodeled and rewired. The Pickings assert
that Day and Night agreed to do all necessary rewiring in the remodeling project for $600.
____________________

1
The Pickings had made a $600 offer of judgment. NRCP 68.
87 Nev. 5, 6 (1971) Picking v. Day and Night Elec., Inc.
the remodeling project for $600. The letter mentioning the $600 sum does not specify the
number of rooms to be rewired. The district judge received extrinsic evidence and concluded
that the $600 sum related to two rooms only; he gave a quantum meruit judgment to Day and
Night in the sum of $1,596.91.
The sole issue presented for our consideration is whether there is substantial evidence in
the record to support the judgment of the lower court. We find that there is such evidence,
and we affirm the judgment.
2
Close v. Redelius, 67 Nev. 158, 215 P.2d 659 (1950);
Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969); Coleman v.
Benson, 85 Nev. 594, 460 P.2d 158 (1969); Havas v. Alger, 85 Nev. 627, 461 P.2d 857
(1969); Utley v. Airoso, 86 Nev. 116, 464 P.2d 778 (1970); Fox v. First W. Sav. & Loan
Ass'n, 86 Nev. 469, 470 P.2d 424 (1970); Bangston v. Brown, 86 Nev. 653, 473 P.2d 829
(1970).
____________________

2
During oral argument before this court on December 15, 1970:
Question by the Court: Would you agree that, if the record supports the trial court's judgment in that there is
substantial evidence that Day and Night wired the entire house and that the bid only contemplated wiring two
rooms, that we must affirm?
Answer by Mr. Jerry Lane, attorney for appellants: Yes, the appellant would agree to that.
. . .
By the Court: Can you tell us that there is no evidence to that effect?
Answer: I cannot tell you that there is no evidence to that effect.
____________
87 Nev. 6, 6 (1971) City of Reno v. Forrest
THE CITY OF RENO, Appellant, v. RONALD EARL
FORREST, Respondent.
No. 6242
THE CITY OF RENO, Appellant, v. GEORGE HENRY
BRASE, Respondent.
No. 6243
THE CITY OF RENO, Appellant, v. JOHN ROBERT
ARBOGAST, Respondent.
No. 6244
January 18, 1971 479 P.2d 465
Appeal from orders of district court granting habeas and discharging respondents from
custody. Second Judicial District Court, Washoe County; John F. Sexton, Judge.
Appeal by city from orders of the district court granting habeas and discharging from
custody defendants who had been charged with pimping and with soliciting prostitution. The
Supreme Court, Mowbray, J., held that issue of probable cause to believe an offense had been
committed could not be tested by habeas in advance of misdemeanor trial.
Reversed; respondents-defendants ordered to stand trial on the charges facing them.
Clinton E. Wooster, City Attorney, and Richard J. Legarza, Assistant City Attorney, of
Reno, for Appellant.
Brown & Meredith, of Reno, for Respondents.
1. Habeas Corpus.
Issue of probable cause to believe an offense had been committed could not be tested by habeas in
advance of misdemeanor trial.
2. Habeas Corpus.
Habeas is available to test the constitutionality of an ordinance or statute.
3. Habeas Corpus.
Since counsel for defendants declared in oral argument that he did not challenge on their face the
constitutionality of pimping and soliciting prostitution ordinances which defendants were charged with
having violated, but only challenged the ordinances as they applied to facts of particular case, and since
those facts were not before the Supreme Court on appeal from orders granting habeas, it could not resolve
issue of the ordinances' constitutionality.
OPINION
By the Court, Mowbray, J.:
These three appeals by the City of Reno are presented as a result of the district court's
granting the three respondents-defendants' pretrial habeas applications and ordering them
released from custody.
Respondent-defendant Arbogast was charged with pimping, a violation of Reno Municipal
Code Section 11.12.070(a)(3).
1
Respondents-defendants Forrest and Brase were charged
with soliciting prostitution, a violation of Reno Municipal Code Section 11.12.330{1).2
____________________

1
Reno Municipal Code, 11.12.070(a)(3):
11.12.070 Disorderly person. (a) Every person is a vagrant who:
. . .
(3) Is a pimp, panderer or procurer or lives in or about houses of prostitution;
with soliciting prostitution, a violation of Reno Municipal Code Section 11.12.330(1).
2

The habeas petitions were predicated on four grounds:
(1) There did not exist probable cause to believe that an offense had been committed.
(2) The Reno Municipal Code sections under which the petitioners were charged are
unconstitutional and void.
(3) The petitioners' imprisonments were unlawful, in that the evidence possessed by the
City was seized pursuant to an unconstitutional entrapment.
(4) The evidence possessed by the City was obtained from the petitioners without first
having provided the petitioners with the Miranda warning.
On the appeal, however, we are concerned with grounds (1) and (2) only, as counsel for
the respondents has conceded that grounds (3) and (4) may not be challenged by habeas.
3
We turn to consider grounds (1) and (2).
Ground (1) is an attempt to test probable cause, by habeas, in a misdemeanor case. The
recent case of Hittlet v. Police Chief, City of Reno, 86 Nev. 672, 474 P.2d 722 (1970), is
dispositive of this issue. There this court said:
It is a settled principle of law that a writ of habeas corpus may not be used to interfere
with or interrupt the orderly administration of the criminal laws by a competent court acting
within its jurisdiction or as a substitute for the ordinary proceedings of a trial court.
Here the appellant is attempting to nullify that principle of law and to depart from the
regular course of criminal proceedings by securing from the district court, in advance, a
decision on issues of law which the appellant can raise in the municipal court, with the right,
if convicted, of an appeal and trial de novo in district court. Reno City Charter, Article
XIV(3) (6); NRS 185.015; NRS Chapter 189.
Unless extraordinary circumstances exist, a writ of habeas corpus will issue only when all
other adequate remedies have been exhausted. Cf. Cook v. State, 85 Nev. 692, 462 P.2d 523
{1969), and Prescott v. State, S5 Nev. 44S
____________________

2
Reno Municipal Code, 11.12.330(1):
11.12.330 Prostitution and pandering offenses. It shall be unlawful in the city:
(1) For any person to commit, or offer, or agree to commit, an act of prostitution, or for any person to offer
to secure, or to secure, another for the purpose of prostitution;

3
The orders of the district court granting the habeas petitions did not specify upon which of the grounds
enumerated, supra, the orders were based.
(1969), and Prescott v. State, 85 Nev. 448, 456 P.2d 450 (1969).
The appellant has not exhausted his adequate remedy, i.e., a trial in municipal court. . . .
[Headnote 1]
It is our ruling that the issue of probable cause may not be tested by habeas in advance of
the misdemeanor trial.
[Headnotes 2, 3]
Ground (2) challenges the constitutionality of the ordinances. Habeas is available to test
the constitutionality of an ordinance or statute.
4
See Ex parte Philipie, 82 Nev. 215, 414 P.2d
949 (1966); Ex parte Kair, 28 Nev. 127, 80 P. 463 (1905); Ex parte Boyce, 27 Nev. 299, 75 P.
1 (1904); Ex parte Rosenblatt, 19 Nev. 439, 14 P. 298 (1887). However, in the instant case,
counsel for the respondents declared in oral argument that he did not challenge the
constitutionality of the ordinances on their face, but rather as they apply to the facts in these
particular cases.
5
Since the facts are not before us, we cannot resolve the issue. As a result,
we find no basis for the granting of the habeas petitions.
We therefore reverse the orders of the district court, and we order the
respondents-defendants to stand trial on the charges facing them.
Zenoff, C. J., Batjer and Thompson, JJ., and Mann, D. J., concur.
____________________

4
Footnote 3 in Hittlet, supra, is misleading. While it states the general rule in the federal jurisdictions, it is
not the law of Nevada.

5
During oral argument before this court on December 16, 1970:
Question by the Court: Then you are not challenging the constitutionality of the ordinances on their face?
Answer by Mr. Byron K. Meredith, counsel for respondents: No, not on the face of the ordinancesonly as
they [the ordinances] apply to the facts of these cases.
____________
87 Nev. 9, 9 (1971) Sceirine v. Densmore
CEGES SCEIRINE, Appellant, v. R. W. DENSMORE and
ED TAMAGNI, Respondents.
No. 6241
January 20, 1971 479 P.2d 779
Appeal from a judgment of the First Judicial District Court, Lyon County; Richard L.
Waters, Jr., Judge.
Actions seeking declaration that tract of land belonged to claimant and to enjoin
defendants from interfering with his use thereof. The district court found for defendants and
claimant appealed. The Supreme Court, Zenoff, C. J., held that where claimant and his
predecessors for period of 40 years cleared and cultivated parcel of land up to fence erected
by Highway Department to mark right-of-way, and claimant derived profit without expense of
constructing any buildings, drainage ditches or irrigation lines or paying taxes which record
owners paid, and there was no dispute or uncertainty as to boundary, record owners were not
estopped to claim their title.
Affirmed.
Belford & Anglim, and William M. O'Mara, of Reno, for Appellant.
Diehl, Recanzone & Evans, and Stanley Smart, of Fallon, for Respondents.
1. Adverse Possession.
Adverse possession was not available to party who claimed property the record title of which was in
others who paid taxes. NRS 11.150.
2. Boundaries.
Basically, acquiescence may be used to show agreed boundary where there has been shown: (a) dispute
or uncertainty as to boundary; (b) possession to certain line; (c) possession for specified time; (d)
acquiescence to that possession, from which agreement is implied.
3. Boundaries.
Implied agreement as to boundaries assumedly is in nature of compromise settlement between parties
who actually dispute or are uncertain as to boundary line.
4. Boundaries.
Agreement as to boundaries may be implied rather than actual.
5. Boundaries.
Acquiescence can be relied on to spell out that settlement agreement must have taken place sometime in
past.
6. Boundaries.
Where claimant and his predecessors for period of 40 years cleared and cultivated parcel of land up to
fence erected by Highway Department to mark right-of-way, and claimant derived profit without expense
of constructing any buildings, drainage ditches or irrigation lines or paying taxes which record owners paid,
and there was no dispute or uncertainty as to boundary, record owners were not estopped to claim their
title.
7. Boundaries.
Owner of tract of land adjacent to another is not bound under his mistaken belief that boundary
line is true line where no earlier dispute or uncertainty is shown and no detrimental
reliance by other party is shown.
his mistaken belief that boundary line is true line where no earlier dispute or uncertainty
is shown and no detrimental reliance by other party is shown.
OPINION
By the Court, Zenoff, C. J.:
Ceges Sceirine brought action against R. W. Densmore and Ed Tamagni seeking a
declaration that a certain six acres of land belonged to him, not to them, and seeking to enjoin
them against interfering with his use of the land.
The issue is: When a land owner has cleared and cultivated a parcel of land up to a fence
erected by the State Highway Department to mark their right of way, does title become vested
in him as against those who hold legal title to the parcel where there had been no dispute or
uncertainty as to the true boundary and the respective owners failed to assert the true
boundary for 40 years?
The land in question is part of the realty described in the respondents' deed which came to
them variously through descent and purchase. Densmore and Tamagni at all times germane to
the issue of this case, paid the taxes on the property, but Sceirine and his predecessors
cultivated the land since 1924 and retained for themselves whatever benefits resulted
therefrom. Record title to the property in dispute is conceded to have been in the name of the
respondents from the time Sceirine acquired his property.
In 1924 the Nevada Highway Department constructed a new highway, or in reality,
re-layed a new road atop the road already there, following a course roughly along the dividing
line between the lots belonging to the litigants' predecessors. Neither the parties nor their
predecessors had anything to do originally or at the re-laying, with the location of the
highway nor were they consulted by the Highway authorities. The fence was built by the
Highway Department apparently to mark the highway right of way. Although none of the
parties or their predecessors were aware of it, the erection of the fence sliced off the six-acre
piece in question. From that time forward the respondents' property was on the side of the
road contiguous to that of the appellant. Apparently, believing the property was part of their
own, Sceirine's predecessors cleared the land and cultivated it, all to their profit. Sceirine
continued this use of the land until 1965 when it was discovered that the piece of land was
owned by the respondents.
The trial court ruled that neither the theory of agreed boundaries nor adverse possession
operated to transfer ownership of the six acres to Sceirine. He appeals from that ruling.
[Headnote 1]
1. The trial established without dispute that the property owner in whose name the
disputed property is described in the deed paid the taxes. The doctrine of adverse possession
is therefore not available to Sceirine. NRS 11.150 requires the claimant to pay the taxes on
the property as one prerequisite at least to claim ownership. McNoble v. Justiniano, 11 P. 742
(Cal. 1886); Meyer v. Schoeffler, 227 P. 1061 (Idaho 1924); Central Pac. Ry. Co. v. Tarpey,
168 P. 554 (Utah 1917).
[Headnotes 2, 3]
2. As to agreed boundaries, truly we deal in a murky area of property law. See Browder,
The Practical Location of Boundaries, 56 Mich.L.Rev. 487 (1958). Basically, acquiescence
may be used to show an agreed boundary where there has been shown: (a) dispute or
uncertainty as to the boundary; (b) possession to a certain line; (c) possession for a specified
time; (d) acquiescence to that possession, from which an agreement is implied. See generally
6 Thompson on Real Property, 3034, 3036 (1962 Replacement). The implied agreement
assumedly is in the nature of a compromise settlement between parties who actually dispute
or are uncertain as to a boundary line.
[Headnotes 4, 5]
We accept those decisions that hold that such an agreement referred to may be implied
rather than actual. Peake v. Azusa Valley Savings Bank, 99 P.2d 382 (Cal.App. 1940);
McGinty v. Interstate Land & Imp. Co., 90 S.E.2d 42 (Ga.App. 1955); Annot., 69 A.L.R.
1430, IV(h) (1930); Annot., 113 A.L.R. 421, IV(h) (1938). This problem usually has its
inception after many years have gone by, when witnesses and documents are rarely, if ever,
still available to establish an actual agreement to settle a boundary line dispute. Acquiescence
can therefore be relied upon to spell out that a settlement agreement must have taken place
sometime in the past.
Acquiescence differs essentially from practical location in that in the former no positive
evidence of an early agreement is usually available. Only the dispute or uncertainty is proven.
After the adjoining land owners become aware of a dispute between them as to the proper
location of the line and then acquiesce in a location, the boundary of acquiescence thereby
becomes established.
acquiesce in a location, the boundary of acquiescence thereby becomes established. From the
dispute or uncertainty, plus acquiescence, an agreed boundary is implied.
Practical location differs from acquiescence in that the agreement is actual, rather than
implied. As in the case where acquiescence is used to show agreement, there must have been
a dispute or uncertainty at the outset, but in the case of practical location there is shown an
actual agreement resolving the dispute or uncertainty. 6 Thompson, supra, 3035. No
evidence was adduced here to show a practical location of the boundary. Instead, the
acquiescence of the respondents and their predecessors is urged as showing an implied
agreement.
In the kind of case presented here, however, there could be no acquiescence in a wrong
boundary line. No evidence was shown from which we can imply that a dispute as to the
boundary location existed any number of years ago and that an agreement had been reached
that the road would be the boundary line. There is a distinct absence of affirmative conduct
on the part of the respondents or their predecessors to show that at one time in history they
realized that the road was not the true boundary, but that they acquiesced in giving the
disputed piece of property to the predecessors of Sceirine. The instant case is thus clearly
distinguishable from Adams v. Child, 28 Nev. 169, 88 P. 1087 (1905).
From a variety of discourse on the subject it appears that the doctrine of agreed boundaries
occupies a middle ground between adverse possession and estoppel by conduct. An estoppel
is conceivable when one of the parties changes his situation, such as in constructing
buildings, drainage ditches or irrigation facilities on the property and the true owner
acquiesces in those expenditures by not asserting his ownership first. 6 Thompson on Real
Property, 3034, 3037 (1962 Replacement); Browder, The Practical Location of
Boundaries, 56 Mich.L.Rev. 487, 519 et seq. (1958).
[Headnote 6]
Sceirine did not suffer any deprivation here. He paid no taxes. He made a profit without
having gone to the expense of erecting any buildings or constructing drainage ditches or
irrigation lines. Thus, the respondents are not estopped to claim their title because Sceirine
did not adversely change his position on the faith of his claimed ownership. Cf. Quinn v.
Small, 38 Nev. 8, 143 P. 1053 (1914); Small v. Robbins, 33 Nev. 288, 110 P. 1128 (1910);
Wagner v. Meinzer, 200 P. 838 (Cal.App. 1921).
[Headnote 7]
We will not hold the owner of a tract of land adjacent to another to be bound under his
mistaken belief that it is the true line where no earlier dispute or uncertainty is shown and
where no detrimental reliance by the other party is shown.
Affirmed.
Batjer, Mowbray, and Thompson, JJ., and Mann, D. J., concur.
____________
87 Nev. 14, 14 (1971) Turner v. Dewco Services, Inc.
CLYDE TURNER, Receiver for LANCE, INC., dba THUNDERBIRD HOTEL, Appellant, v.
DEWCO SERVICES, INC., a Nevada Corporation; CONSOLIDATED CASINOS, INC., a
Nevada Corporation; and ROBERT M. BUCKALEW, Trustee, Respondents.
No. 6338
January 21, 1971 479 P.2d 462
Appeal from judgment dismissing complaint of bankrupt corporation's receiver to set aside
a foreclosure sale of hotel and casino alleging defective notices. Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
The district court rendered judgment dismissing complaint, and plaintiff appealed. The
Supreme Court, Zenoff, C. J., held that there was no breach of statutory duty on part of
holders of deed of trust in failing to send statutory notice of default by certified mail prior to
foreclosure since statute does not require proof that notice be received, but, in any event,
grantor was not prejudiced where copy had been sent to grantor's attorney prior to foreclosure.
Affirmed.
John Peter Lee, of Las Vegas, for Appellant.
Lionel, Sawyer & Wartman, of Las Vegas, for Respondents.
1. Mortgages.
There was no breach of statutory duty on part of holders of deed of trust in failing to send statutory notice
of default and election to sell by certified mail prior to foreclosure since statute does not require proof that
notice be received, but, in any event, grantor was not prejudiced where copy had been sent to grantor's
attorney prior to foreclosure. NRS 107.080, subd. 3.
2. Mortgages.
Where referee in bankruptcy of grantor of deed of trust not only set aside restraining order as to sale of
subject property but executed nunc pro tunc order back to original date that motion for that purpose was
originally sought, requirement that before sale of property there be publication of notice of sale three times
for three successive weeks was not violated because first notice was published four days before referee
granted motion to allow sale under restraining order. NRS 21.130.
3. Appeal and Error.
Claim of inadequacy of price at foreclosure sale could not be raised for first time on appeal from
proceedings in foreclosure of deed of trust.
OPINION
Under date of January 6, 1967 Dewco Services, Inc., contracted to sell the Thunderbird
Hotel in Las Vegas to Lance, Inc., for $13,000,000. Terms of sale included a cash down
payment of $1,150,000 and the assuming by the buyer of two already outstanding promissory
notes secured by deeds of trust totalling $7,560,000, the additional assumption of certain
trade obligations and the execution of a third promissory note to Dewco for $3,863,407.87
which also was secured by a third trust deed against the property.
A more detailed statement is recited in the federal court case, Lance, Inc. v. Dewco
Services, Inc., 422 F.2d 778 (9th Cir. 1970), involving bankruptcy problems between the
same parties. For our purposes, only those facts necessary to resolve the issues of this appeal
are set forth. The issues relate to foreclosure attempts on the third deed of trust after Lance
defaulted in the terms of the purchase agreement.
Within a few months after the purchase, the operation of the hotel having proved a losing
venture, Dewco and Lance executed a moratorium agreement postponing payments called for
by the third promissory note but conditioned upon Lance maintaining certain of the assumed
obligations upon a current basis. This agreement negotiated in October 1967 was followed by
further agreements on December 5, 1967 by which Dewco promised to assist Lance with a
cash loan provided Lance's stockholders matched the loan with equal money of their own. If
they failed to do so by December 10, under the agreement Lance would peaceably return
possession of the hotel to Dewco and at the same time waived the ten-day notice of default
provisions of the original purchase money note.
The stockholder commitments were not met, possession and operation of the hotel were
turned over to Dewco and foreclosure proceedings were instituted from which stem the issues
of this appeal. Lance claims in a suit prosecuted by the receiver of Lance, Inc., that notice was
not waived and that the notice of default required by NRS 107.080(3) was not received,
though mailed, and that more importantly, the first published notice of the foreclosure sale
was in defiance of and in violation of the Federal Bankruptcy Court's order restraining any
proceedings by creditors and that therefore the first notice being void, all of the proceedings
stemming from it including the foreclosure sale were void.
This appeal is from the denial by the trial court of those contentions.
1. The trustee named in the deed of trust mailed the notice of breach to Lance, Inc., at its
customary place of business within the Thunderbird Hotel. It was returned Moved, Left No
Address. No explanation of inadvertence on anybody's part was made.
[Headnote 1]
We find no breach of the statutory duty to send the notice by certified mail at the address
known by the grantor. The statute does not require proof that the notice be received.
1
Further on the facts, a copy had been sent to the attorney for Lance, Inc., and the participation
of Lance in all of the efforts to save the transaction from going back to the seller belie any
prejudice or lack of knowledge of the commencement of the foreclosure. Default rites are not
that picayune. Mullin v. County of Polk, 76 So.2d 282 (Fla. 1954); Gardner v. McGoldrick,
141 N.Y.S.2d 587 (Sup.Ct. 1955); Building Supplies v. Gillingham, 135 P.2d 832 (Wash.
1943).
2. To the second and more impressive ground of appeal, appellant asserts a fatal violation
of NRS 21.130 which requires that before the sale of property there must be the
publication of the notice of sale three times for three successive weeks.2
____________________

1
NRS 107.080(3). The 15- or 35-day period provided in paragraph (a) of subsection 2 shall commence on
the first day following the day upon which the notice of default and election to sell is recorded in the office of
the county recorder of the county in which the property is located and a copy of the notice of default and election
to sell is mailed by certified mail with postage prepaid to the grantor or to his successor in interest at the address
of such grantor or his successor in interest if such address is known, otherwise to the address of the trust
property. . . .
that before the sale of property there must be the publication of the notice of sale three times
for three successive weeks.
2

At the time of the first of the three publications an order restraining creditors had been
issued by the Federal Bankruptcy Court. The order was dated February 1, 1968, but prior, on
March 12 Dewco had petitioned the referee to allow foreclosure to go forward. On April 12
the first notice was published and four days later the referee granted the motion to allow the
sale and dissolved the restraining order as to Dewco. What we are faced with is the question
whether the four days constituted a disobedience so serious as to require this court to set aside
the entire sale.
[Headnote 2]
We find from the record that the referee not only set aside the restraining order as to this
sale, but executed a nunc pro tunc order back to the original date that the motion for that
purpose was originally sought. In effect, then, the restraint as to the publication of notices did
not even exist as against Dewco. While appellant argues, both in the lower court and before
us, that the nunc pro tunc order is of questionable pedigree, it is not for us to reason why so
far as that order is concerned. The presumption of validity attaches to it, the referee did not
withdraw or cancel it, no contempt proceedings were brought for the purported violation of
the original order, nor was any early attempt made in any court or proceedings to stop the
progress of the sale. Any way we look at it the four-day lapse was not sufficiently prejudicial
to void the sale. Hunter v. Truckee Lodge, 14 Nev. 24 (1879); Malter v. Falcon Mining Co.,
18 Nev. 209, 2 P. 50 (1883); Maynard v. Ivey, 21 Nev. 241, 29 P. 1090 (1892); Porteous
Decorative Co. v. Fee, 29 Nev. 375, 91 P. 135 (1907); Tonopah Lumber Co. v. Nevada
Amusement Co., 30 Nev. 445, 97 P. 636 (1908); Self & Sellman Mill & Bldg. Co. v. Savage,
34 Nev. 332, 123 P. 333 (1912); Ferro v. Bargo Min. & Mill. Co., 37 Nev. 139, 140 P. 527
{1914); Peccole v. Luce & Goodfellow, 66 Nev. 360
____________________

2
NRS 21.130. Notice of sale under execution. Before the sale of property on execution, notice thereof shall
be given as follows:
. . . .
3. Real property. In case of real property, by posting a similar notice particularly describing the property,
for 20 days successively, in 3 public places of the township or city where the property is situated and also where
the property is to be sold; and also by publishing a copy of the notice three times, once a week, for 3 successive
weeks, in a newspaper, if there be one in the county. . . . (Emphasis added.)
Nev. 139, 140 P. 527 (1914); Peccole v. Luce & Goodfellow, 66 Nev. 360, 212 P.2d 718
(1949).
In any event the purpose of publication under NRS 21.130 has been fulfilled. The statute
obviously intends publication to give notice of the sale of the premises to possible third-party
buyers and the defaulting party should he not have received the notice provided in NRS
107.080. Since there was publication as provided in the statute all persons it was intended to
inform must be presumed to have been so informed and the purpose of the statute fulfilled.
[Headnote 3]
3. The claim of inadequacy of price at the sale cannot now be raised for the first time on
appeal. We note, however, no evidence to indicate fraud, unfairness or oppression. Golden v.
Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963); Brunzell v. Woodbury, 85 Nev. 29, 449 P.2d
158 (1969).
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
87 Nev. 18, 18 (1971) Certain-Teed Prods. v. District Court
CERTAIN-TEED PRODUCTS CORPORATION, Petitioner,
v. SECOND JUDICIAL DISTRICT COURT, Respondent.
No. 6404
January 26, 1971 479 P.2d 781
Original proceedings in prohibition.
Supplier of roofing materials, a foreign corporation not qualified to do business in state,
petitioned for writ prohibiting the district court from considering claim by owner based on
alleged breach of warranty of good quality of materials supplied for use in construction of
warehouse in state. The Supreme Court, Thompson, J., held that in absence of evidence that
the supplier's chief legal counselor was also president, secretary, cashier, managing agent or
resident agent, personal service of amended summons and complaint pursuant to long-arm
statute upon the counselor was inadequate to confer jurisdiction over the supplier, but that
assuming that the supplier performed more than single act and purposefully acted in state and
that consequences of its activities in state were substantial, the supplier would not be denied
substantive due process by being required, when properly served with process under
long-arm statute, to appear and defend breach of warranty action brought in the state.
required, when properly served with process under long-arm statute, to appear and defend
breach of warranty action brought in the state.
Writ issued.
Hibbs & Bullis, of Reno, for Petitioner.
Breen, Young, Whitehead & Hoy and Lawrence J. Semenza, of Reno, for Respondent.
1. Constitutional Law.
Long-arm statute which provides for personal service of summons upon party outside state in manner
provided for service upon person of like kind within state satisfies requirements of procedural due process.
NRCP 4(d)(1); NRS 14.065.
2. Corporations.
In absence of evidence that foreign corporation's chief legal counselor was also president, secretary,
cashier, managing agent or resident agent of the corporation, personal service of amended summons and
complaint pursuant to long-arm statute upon the counselor was inadequate to confer jurisdiction over the
corporation. NRCP 4(d)(1); NRS 14.065.
3. Courts.
Amended complaint which contained allegations, inter alia, that supplier of roofing materials contracted
with subcontractor and breached warranty of good quality to damage of third-party beneficiary stated claim
for relief against the supplier within framework of long-arm statute when tested by rules generally
applicable to pleadings. NRS 14.065, 14.065, subd. 2(a); NRCP 4(d)(1), 8(a).
Assuming that supplier of roofing materials, a foreign corporation not qualified to do business in state,
breached warranty of good quality of materials supplied for construction of warehouse in state, and had
performed more than single act and purposefully acted in state and that consequences of its activities in
state were substantial, the supplier would not be denied substantive due process by being required, when
properly served with process under long-arm statute, to appear and defend breach of warranty action
brought in the state. NRS 14.065.
OPINION
This petition for a writ of prohibition challenges the service of process upon a foreign
corporation not qualified to do business in Nevada, but who had supplied roofing materials
for use in the construction of a warehouse at Sparks, Nevada. Process was purportedly served
upon the petitioner pursuant to NRS 14.065.
NRS 14.065. This proceeding does not concern provisions for the service of process upon a
foreign corporation doing business in Nevada [NRS 14.020; NRS 14.030; NRCP 4(d)(2)],
nor does it concern NRS 14.080, since service was not attempted under that statute.
The petitioner, Certain-Teed Products, is a foreign corporation not qualified to do business
in Nevada, and one of several defendants to an action commenced by S. S. Kresge Company.
Certain-Teed moved the district court to quash service of process for want of jurisdiction and
because service was not made upon an authorized person. Its motion was denied. This
proceeding seeks to preclude the district court from further considering Kresge's claim for
relief against the petitioner.
This case arose out of the construction of a warehouse for Kresge by the McKenzie
Construction Company. McKenzie, certain subcontractors and suppliers are the defendants.
Insofar as Certain-Teed is concerned, the amended complaint of Kresge alleges that
McKenzie contracted with Yancy Company to provide the roof; that Yancy contracted with
Certain-Teed to supply the roofing materials; that Certain-Teed warranted the materials to be
of good quality, and breached its warranty to the damage of Kresge in the sum of $500,000
which Kresge is entitled to recover as the third party beneficiary of the mentioned contracts.
A deputy sheriff of Montgomery County, Pennsylvania, gave his affidavit that he served
process upon Certain-Teed by handing a true and correct copy of Amended Summons and
Amended Complaint to Mr. DeLong, Chief Legal Counsellor, at 120 East Lancaster Avenue,
Ardmore, Montgomery County, Pa.
1. NRS 14.065, among other things, purports to give a Nevada court personal jurisdiction
over a party outside of Nevada as to any cause of action which arises from transacting any
business within this state.
1
A method for serving process is designated.
____________________

1
NRS 14.065 reads: 1. Personal service of summons upon a party outside this state is sufficient to confer
upon a court of this state jurisdiction of the person of the party so served if:
(a) Such service is made by delivering a copy of the summons, together with a copy of the complaint, to the
party served in the manner provided by statute or rule of court for service upon a person of like kind within this
state; and
(b) Such party has submitted himself to the jurisdiction of the courts of this state in a manner provided by this
section.
2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated in this
subsection thereby submits himself and, if an individual, his personal representative to the
is designated. A copy of the summons together with a copy of the complaint is to be delivered
to the party in the manner provided by statute or rule of court for service upon a person of
like kind within this state.
[Headnote 1]
Although the language is obscure, we must give it effect if possible. The phrase a person
of like kind within this state, in this instance, must mean a domestic corporation. Rule
4(d)(1) designates the manner in which a domestic corporation is served.
2
This means that a
foreign corporation, not qualified to do business in Nevada, but alleged to have transacted
business here, may be served with process under NRS 14.065 by delivering a copy of the
summons and complaint in the foreign jurisdiction to the president or other head of the
corporation, secretary, cashier, managing agent, or resident agent thereof. The legislative
purpose was to require personal service of process outside this state to afford actual notice of
the pending litigation. Cf. Gambs v. Morgenthaler, 83 Nev. 90, 423 P.2d 670 (1967). This
satisfies the requirements of procedural due process since no more certain provision for the
defendant's receipt of actual notice could be made than through personal service. Mizner v.
Mizner, 84 Nev. 268, 272, 439 P.2d 679 (1968). Substituted service is not provided for by
NRS 14.065.
3
[Headnote 2]
[Headnote 2]
____________________
jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
(a) Transacting any business or negotiating any commercial paper within this state;
(b) Committing a tortious act within this state;
(c) Owning, using or possessing any real property situated in this state;
(d) Contracting to insure any person, property or risk located within this state at the time of contracting; or
(e) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as
to all obligations arising for alimony, child support or property settlement, if the other party to the marital
relationship continues to reside in this state.
3. Only causes of action arising from these enumerated acts may be asserted against a defendant in an action
in which jurisdiction over him is based on this section.
4. The method of service provided in this section is cumulative, and may be utilized with, after or
independently of other methods of service.

2
Rule 4(d)(1) reads: If the suit is against a corporation formed under the laws of this state; to the president
or other head of the corporation, secretary, cashier, managing agent, or resident agent thereof. . . .

3
We are not here concerned with the substituted service provisions of Rule 4(d)(1) respecting service upon
persons other than the president, or other head of the corporation, secretary, cashier, managing agent or resident
agent.
[Headnote 2]
As already noted, it does not appear from the deputy sheriff's return of service that process
was served upon one of the persons authorized by the rule to be served. Service was made
upon the chief legal counsellor. Whether that individual was also the president, secretary,
cashier, managing agent, or resident agent of Certain-Teed does not appear from the return or
from other competent proof.
4
Accordingly, the district court erred in refusing to quash
service. We presume, however, that competent proof of the capacity of the chief legal
counsellor will be supplied, or that service will hereafter be made, and, therefore, turn to
other points raised by this petition for prohibition.
[Headnote 3]
2. The petitioner next contends that neither the amended complaint nor the affidavit which
was filed in support of the order authorizing service of process outside the State of Nevada
contains a sufficient statement of facts to warrant service of process or confer jurisdiction on
the trial court. However, neither NRS 14.065 nor NRCP 4(d)(1) requires an affidavit or order
as a prerequisite to service of process. The amended complaint does state a claim for relief
against the petitioner within the framework of NRS 14.065 when tested by the rules generally
applicable to pleadings. NRCP 8(a). A more detailed statement of facts is not required and a
failure to allege that the contract was made in Nevada is not essential. The pleading is
adequate to place the claim for relief within NRS 14.065 (2)(a). It is noted that NRCP
12(b)(2) provides an opportunity for any out-of-state defendant to secure a pretrial
determination of jurisdiction over his person and thus protects such parties against
harassment from ill conceived and shotgun type law suits. The petitioner chose not to make
any factual showing in support of its motion to quash that the business transacted by it in
Nevada was insufficient to confer jurisdiction over it. No factual issue on that score has been
presented to the trial court to be resolved.
3. The motion to quash service also was grounded upon want of jurisdiction.
____________________

4
In addition to the return of service, the district court had before it an affidavit of a secretary of plaintiff's
Reno attorneys that she had conversed by telephone with Mrs. Trunk of the personnel department of
Certain-Teed and was advised that the Chief Legal Counsellor also was the Secretary of Certain-Teed. This
hearsay affidavit is insufficient (State v. District Court, 68 Nev. 527, 238 P.2d 1125 (1951)), particularly when
the fact in issue is a matter of public record in Pennsylvania, easily ascertained, and authenticated proof thereof
available.
want of jurisdiction. The petitioner argues that considerations of substantive due process
place Certain-Teed beyond the reach of the long arm of NRS 14.065.
The broad language used in the statute discloses a legislative intention to reach the outer
limits of federal constitutional due process. Such phrases as transacting any business within
this state, negotiating any commercial paper within the state, committing a tortious act
within this state, are almost without restriction or limitation. The constitutional concern is
whether the transaction of business in Nevada produced effects here of such significance that
it is not unfair to allow this state to resolve resulting litigation. In short, are traditional notions
of fair play and substantial justice offended? Internat. Shoe Co. v. Washington, 326 U.S. 310,
316 (1945); Metal-Matic Inc. v. District Court, 82 Nev. 263, 415 P.2d 617 (1966); Gambs v.
Morgenthaler, 83 Nev. 90, 423 P.2d 670 (1967).
The United States Supreme Court decisions of McGee v. International Life Ins. Co., 355
U.S. 220 (1957), and Hanson v. Denckla, 357 U.S. 235 (1958), when read together, seem to
set forth the criteria defining the outer limits of in personam jurisdiction over an out-of-state
defendant based upon a single act within the forum state. First, the defendant must
purposefully avail himself of the privilege of acting in the forum state or of causing important
consequences in that state. Second, the cause of action must arise from the consequences in
the forum state of the defendant's activities. Finally, the activities of the defendant or the
consequences of those activities must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over the defendant reasonable. Southern Machine
Company v. Mohasco Industries, Inc., 401 F.2d 374 (6 Cir. 1968); State ex rel. White Lumber
Sales, Inc. v. Sulmonetti, 448 P.2d 571 (Ore. 1968).
[Headnote 4]
In the case at hand we must assume that more than a single act in Nevada was performed
by Certain-Teed since the construction project to which it supplied material was a substantial
one. That company purposefully acted within this state and the consequences of its activities
here are substantial, if Kresge's claim for relief bears merit. It is apparent that the convenience
of both parties, Kresge and Certain-Teed, cannot equally be served by giving each a free
choice of the forum in which to conduct their differences. Neither has a greater claim to
preferred treatment. In this case it cannot reasonably be argued that Certain-Teed is
compelled to defend itself in a distant state with which it has no relevant connection.
that Certain-Teed is compelled to defend itself in a distant state with which it has no relevant
connection. Accordingly, it is not denied fair treatment or substantial justice, if when properly
served with process, it is required to appear and defend in Nevada.
A writ of prohibition shall issue solely upon the ground that neither the return of service or
other competent proof shows that service of process was made upon either the president or
other head of Certain-Teed, its secretary, cashier, managing agent, or resident agent.
____________
87 Nev. 24, 24 (1971) Lehmann v. Warden
LYLE PHILIP LEHMANN, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 6190
January 27, 1971 480 P.2d 155
Appeal from order of Second Judicial District Court, Washoe County, dismissing petition
for post-conviction relief; John W. Barrett, Judge.
Appeal from order of the district court denying post-conviction petition for relief. The
Supreme Court, Mowbray, J., held that where defendant was 17 years of age when indicted by
grand jury on open charge of murder, a capital offense, there was no need for juvenile court to
certify him for trial as an adult and, although information charging second degree murder
should not have been filed in same case and defendant should have been permitted to plead to
the lesser offense with consent of district attorney and approval of district judge, effect was
the same and the procedural error was harmless.
Affirmed.
Belford & O'Mara, of Reno, for Appellant.
Robert List, Attorney General, of Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law; Indictment and Information; Infants.
Where defendant was 17 years of age when indicted by grand jury on open charge of murder, a
capital offense, there was no need for juvenile court to certify him for trial as an adult
and, although information charging second degree murder should not have been filed
in same case and defendant should have been permitted to plead to the lesser offense
with consent of district attorney and approval of district judge, effect was the same
and the procedural error was harmless.
jury on open charge of murder, a capital offense, there was no need for juvenile court to certify him for trial
as an adult and, although information charging second degree murder should not have been filed in same
case and defendant should have been permitted to plead to the lesser offense with consent of district
attorney and approval of district judge, effect was the same and the procedural error was harmless. NRS
62.030, 62.040, 62.050, 62.080, 174.065, subd. 1.
OPINION
This is an appeal from a order of the district court denying Lyle Philip Lehmann's
post-conviction petition for relief.
1. The Facts.
On December 3, 1964, the Washoe County Grand Jury returned an indictment against
Lehmann on the open charge of murder.
1
Lehmann was then 17 years of age. One year later,
on December 15, 1965, the district attorney reduced the charge by filing an information in the
same case accusing Lehmann of second degree murder, to which charge Lehmann entered a
plea of guilty. There had not been a preliminary hearing or a waiver thereof. However, this
procedure was followed with the consent and approval of Lehmann and his counsel at that
time, and it was in effect the result of a negotiated plea. Lehmann was sentenced to 10 years
to life in the state prison, where he is presently incarcerated. He has now filed this
post-conviction petition, claiming that the district court was without jurisdiction to accept his
guilty plea because he was not first certified by the juvenile court to be tried as an adult in the
district court.
____________________

1
INDICTMENT
Defendant, LYLE PHILIP LEHMANN, is accused by the GRAND JURY of Washoe County, State of
Nevada, of a felony, to wit: MURDER, committed as follows:
That the said defendant, LYLE PHILIP LEHMANN, on or about the 13th day of October, 1964, at and
within the County of Washoe, State of Nevada, did then and there wilfully, unlawfully and feloniously, with
malice aforethought, kill one HELEN LEHMANN, a human being, by beating the said HELEN LEHMANN
about the head with a blunt instrument and stabbing her about the face and neck, thereby inflicting mortal
wounds upon her, the said HELEN LEHMANN, from which said mortal wounds the said HELEN LEHMANN
died within a year and a day after the infliction of said mortal wounds, to wit: On the 13th day of October, 1964.
DATED this 2nd day of December, 1964.
NRS 62.080.
2
The district judge rejected his contention and denied his post-conviction
petition. We affirm.
2. The Certification.
Under the Nevada Juvenile Court Act, the district courts of this State when holding
juvenile court sessions are designated juvenile courts. NRS 62.030.
3
As such courts, they
have original jurisdiction in proceedings over any child found or living within the county
served by the court when the child violates any law of the State. NRS 62.040.
4
A child 16
years of age or older may not be tried as an adult in a criminal proceeding in the district court
unless, after a full investigation, the juvenile court judge determines that the child should be
certified to the district court having trial jurisdiction of the offense charged had the offense
been committed by an adult. If, during the pendency of a criminal charge in the district court,
it is learned that the defendant is under the age of 18 years, it is mandatory that the district
judge arrest the proceedings and order the child taken before the juvenile court. Then, after a
full hearing, the juvenile court may retain jurisdiction of the child or certify the child for trial
as an adult as provided in NRS 62.080, supra. However, there is an exception to this
procedure, and that is when the offense charged is a capital case. In such a case, the district
court may retain jurisdiction without the aforementioned certification and proceed to try the
child as an adult, providing the child is at least 16 years of age. NRS 62.050.
5
In this case,
Lehmann was 17 years of age when indicted by the grand jury on the open charge of
murder, which is a capital offense.
____________________

2
NRS 62.080:
If a child 16 years of age or older is charged with an offense which would be a felony if committed by an
adult, the court, after full investigation, may in its discretion retain jurisdiction or certify the child for proper
criminal proceedings to any court which would have trial jurisdiction of such offense if committed by an adult;
but no child under 16 years of age shall be so certified.

3
NRS 62.030:
The district courts shall have and exercise jurisdiction in all cases under this chapter, and, in the exercise of
such jurisdiction, shall hold juvenile sessions and shall then be termed juvenile courts.

4
NRS 62.040:
1. Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in
proceedings:
(a) Concerning any child living or found within the county:
. . .
(5) Who violates any state law or municipal ordinance, or any other rule or regulation having the force
of law.

5
NRS 62.050:
If, during the pendency of a criminal or quasi-criminal charge, except in a capital offense, against any
person in any court, it shall be ascertained that the person was under the age of 18 years at the time
In this case, Lehmann was 17 years of age when indicted by the grand jury on the open
charge of murder, which is a capital offense. There was no need for certification by the
juvenile court. Lehmann argues now that such a certification became necessary once the
district attorney filed the information charging second degree murder. We do not agree.
Admittedly, the certification proceeding is mandatory in all cases of juveniles except in
capital cases. Second degree murder is not a capital offense, and a certification would have
been required if Lehmann had been initially so indicted by the grand jury. The district
attorney should not have filed an information in this case. The correct procedure would have
been to follow NRS 174.320, subsection 2,
6
which permitted a defendant accused of murder
to plead to the lesser degree with consent of the district attorney and approval of the district
judge. Although the procedure selected was wrong, the effect was the same as though the
correct method had been followed, and we find the procedural error was harmless.
Affirmed.
Zenoff, C. J., Batjer, Thompson, and Gunderson, JJ., concur.
____________________
of committing the alleged offense, it shall be the duty of the court forthwith to transfer the case and record to the
juvenile division. The court making such transfer shall order the child to be taken forthwith to the place of
detention designated by the juvenile division or to that court itself, or release the child to the custody of some
suitable person, to be brought before the court at a time designated.

6
NRS 174.320, subsection 2, repealed 1967, and now NRS 174.065, subsection 1:
On a plea of guilty to an information or indictment accusing a defendant of a crime divided into degrees,
when consented to by the district attorney in open court and approved by the court, the plea may specify the
degree, and in such event the defendant shall not be punished for a higher degree than that specified in the plea.
____________
87 Nev. 27, 27 (1971) Spinosa v. Rowe
VAN V. SPINOSA, Appellant, v. VIRGINIA
ROWE, Respondent.
No. 6270
January 27, 1971 430 P.2d 157
Appeal from order of Eighth Judicial District Court, Clark County, setting aside default
judgment; William R. Morse, Judge.
Appeal from order of the district court granting defendant's motion to vacate default
judgment. The Supreme Court, Mowbray, J., held that where attorney who had represented
defendant in previous litigation was served with copy of complaint and summons, and
attorney advised plaintiff's counsel that he was not authorized to accept service for defendant
and that he was not defendant's attorney but counsel for plaintiff proceeded to take default
judgment, there was no abuse of judicial discretion in setting aside the default judgment.
Affirmed.
[Rehearing denied February 23, 1971]
Nelson Limited, of Las Vegas, for Appellant.
Barry & Hall, of Reno, for Respondent.
Judgment.
Where attorney who had represented defendant in previous litigation was served with copy of complaint
and summons, and attorney advised plaintiff's counsel that he was not authorized to accept service for
defendant and that he was not defendant's attorney but counsel for plaintiff proceeded to take default
judgment, there was no abuse of judicial discretion in setting aside the default judgment. NRCP 60(c).
OPINION
This appeal is taken from an order of the district court granting respondent-defendant
Virginia Rowe's motion to vacate a default judgment. NRCP 60(c).
1
1.
____________________

1
NRCP 60(c):
Default Judgments: Defendant Not Personally Served. 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.
1. The Facts.
Spinosa commenced this action in district court by filing a complaint against Rowe,
seeking $1,836.70 in damages plus attorney fees and costs. Rowe was never personally served
with process. William W. Morris of the Clark County Bar, who had represented Rowe in
previous justice court litigation, was served in Las Vegas with a copy of the complaint and
summons. Mr. Morris advised Spinosa's counsel by letter that he was not authorized to accept
service for Rowe and that he was not her attorney.
2
Regardless, counsel for Spinosa
proceeded to take a default judgment against Rowe and levied execution on the judgment by
causing the sheriff to notice Rowe's property for sale. Rowe read the notice of sale which
appeared in the newspaper, secured her present counsel, and moved to set aside the default
judgment. The district judge granted the motion, and we affirm.
2. The Default Judgment.
Jenkins v. Goldwater, 84 Nev. 422, 442 P.2d 897 (1968), is dispositive of the issue
presented in this case. In Jenkins, this court said, 84 Nev. at 425, 442 P.2d at 899:
A defendant who seeks to vacate a default judgment under Rule 60(c) must show (a)
that he was not personally served; (b) that his motion is timely filed; and (c) a meritorious
defense. . . .
When these factors are shown a prima facie case is made in favor of the motion to vacate.
The burden then shifts to the plaintiff to show circumstances which would make the granting
of the motion inequitable. The trial court is bound to rule in favor of the movant's prima facie
case unless the plaintiff, in opposition, makes the requisite showing, in which event the
court may exercise a judicial discretion."
____________________

2
July 8, 1969
Clarence A. Nelson, Jr., Esq.
Attorney at Law
309 South Third Street
Las Vegas, Nevada 89101
Re: Van V. Spinosa v. Virginia Rowe
Dear Jack:
This is with reference to the complaint served upon me in the above matter. I hereby inform you that I have
no authority to acknowledge service on the defendant Virginia Rowe. Her attorney is Bryan Hall in Reno,
Nevada.
Sincerely
yours,
BELL &
MORRIS
William W.
Morris
WWM:ao
Enc.
opposition, makes the requisite showing, in which event the court may exercise a judicial
discretion.
Rowe, in presenting her motion to vacate, made a prima facie case as required by Rule
60(c), which gave the district judge a sufficient reason to set aside the default. In opposition,
Spinosa claims that Mr. Morris had agreed prior to commencement of the action to accept
service in this case. This was repudiated by Morris's letter to Spinosa's counsel, dated July 8,
1969.
There was no abuse of judicial discretion, and the order setting aside the default judgment
is affirmed.
____________
87 Nev. 30, 30 (1971) Bargas v. Warden
WILLIE BARGAS, Appellant, v. WARDEN,
No. 6259
January 28, 1971 482 P.2d 317
Appeal from an order denying a petition for a writ of habeas corpus. First Judicial District
Court, Douglas County; Richard L. Waters, Jr., Judge.
Habeas corpus proceeding alleging that petitioner had been denied constitutional right to
appointed counsel at hearing for revocation of probation. The district court denied petition,
and petitioner appealed. The Supreme Court, Batjer, J., held that indigent person convicted of
a felony who has been previously sentenced and then placed on probation, but execution
thereof has been suspended during good behavior, is not entitled to appointment of counsel,
and that denial of petition was proper.
Affirmed.
Jerry C. Lane, of Carson City, for Appellant.
Robert List, Attorney General, Howard D. McKibben, District Attorney, Douglas County,
for Respondent.
1. Courts.
Supreme Court is bound by decisions of United States Supreme Court but is not bound by decisions of
other federal courts. Const. art. 1, 2.
2. Criminal Law.
Indigent person convicted of a felony who has been previously sentenced and then placed on probation,
but execution thereof has been suspended during good behavior, is not entitled to
appointment of counsel.
thereof has been suspended during good behavior, is not entitled to appointment of counsel.
3. Habeas Corpus.
Denial of petition for writ of habeas corpus in which petitioner alleged he was denied his constitutional
right to appointed counsel at hearing for revocation of probation was proper.
OPINION
By the Court, Batjer, J.:
This appeal is from the denial of a petition for a writ of habeas corpus in which the
appellant alleges that he was denied his constitutional right to appointed counsel at the
hearing for the revocation of his probation previously granted.
We have heretofore established that an indigent person convicted of a felony who had been
previously sentenced and then placed on probation, but the execution thereof had been
suspended during good behavior, is not entitled to appointment of counsel. Shum v. Fogliani,
82 Nev. 156, 413 P.2d 495 (1966); In re DuBois, 84 Nev. 562, 445 P.2d 354 (1968); Smith v.
Warden, 85 Nev. 83, 450 P.2d 356 (1969). In seeking to have this court overrule those cases,
the appellant relies upon Hewett v. State of North Carolina, 415 F.2d 1316 (4th CA 1969),
which was decided since In re DuBois and Smith, supra.
This case may be distinguished from Hewett on the facts. Here the appellant readily
admitted, at his revocation hearing, that he had possessed marijuana during the term of his
probation and furthermore he did not ask for the assistance of counsel. In Hewett, the
defendant questioned the nature of his alleged violation and requested the assistance of
counsel. We do not, however, decide this case on its factual difference from Hewett because
we do not find the announced holding of that case to be persuasive.
[Headnotes 1, 2]
We are bound by the decisions of the United States Supreme Court (Nevada Constitution,
Article 1, Sec. 2).
1
We are not bound by the decisions of the other federal courts.
____________________

1
Nevada Constitution, Art. 1, 2: All political power is inherent in the people [.] Government is instituted
for the protection, security and benefit of the people; and they have the right to alter or reform the same
whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal
Government in the exercise of all its Constitutional powers as the same have been or may be defined by the
Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal
Union to
bound by the decisions of the other federal courts. In some instances we might follow the
decisions of the other federal courts. Here we have carefully considered Hewett v. State of
North Carolina, supra. We find the holdings in that case opposite to our holdings in In re
DuBois, supra, and Smith v. Warden, supra. Those cases were decided by this court in the
light of Mempa v. Rhay, 389 U.S. 128 (1967), which is the latest holding by the High Court
on the question of the right to counsel at a hearing for the revocation of probation. We believe
that In re DuBois and Smith were correctly decided. We reaffirm those holdings and apply
them to this case.
A point of law, once determined, will not be unsettled except for very weighty and
conclusive reasons. Evans v. Cook, 11 Nev. 69 (1876); Maitia v. Allied L. & L. S. Co., 49
Nev. 451 (1926). The reasoning in Hewett v. State of North Carolina, supra, does not
persuade us to alter our position on this matter. We therefore reject the holding in that case.
[Headnote 3]
The order of the district court denying the appellant's petition for a writ of habeas corpus is
affirmed.
Zenoff, C. J., Mowbray, Thompson, and Gunderson, JJ., concur.
____________________
dissolve their connection therewith or perform any act tending to impair [,] subvert, or resist the Supreme
Authority of the Government of the United States. The Constitution of the United States confers full power on
the Federal Government to maintain and perpetuate its existance [existence], and whensoever any portion of the
States, or people thereof attempt to secede from the Federal Union or forcibly resist the Execution of its laws,
the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its
Authority.
____________
87 Nev. 32, 32 (1971) Daugherty v. Wabash Life Ins. Co.
VIRGINIA DAUGHERTY, Appellant, v. WABASH
LIFE INSURANCE COMPANY, Respondent.
No. 6268
January 28, 1971 482 P.2d 814
Appeal from an Order of the Eighth Judicial District Court, Clark County, granting
summary judgment; John F. Mendoza, Judge.
Action by owner-beneficiary of life policy against insurer to recover the proceeds of the
policy.
recover the proceeds of the policy. The district court rendered summary judgment in favor of
the insurer and the owner-beneficiary appealed. The Supreme Court, Gunderson, J., held that
material issue of fact as to whether life policy had lapsed for nonpayment of premiums
precluded grant of summary judgment.
Reversed and remanded with instructions.
Charles L. Kellar, of Las Vegas, for Appellant.
Parraguirre, Rose, Pico & Norwood, Ltd. and Keith Edwards, of Las Vegas, for
Respondent.
1. Judgment.
Record established that owner-beneficiary in action on life insurance policy received the hearing,
including right to oral argument, to which she was entitled in opposition to insurer's motion for summary
judgment. NRCP 56(c).
2. Judgment.
Affidavit of insurance company's vice-president which did not show that he was custodian of any
company records and competent to lay foundation of introduction of policy in issue or any other document
or that he was to testify to any of the affidavit's other recitals and which did not have attached thereto copy
of policy in issue was not sufficient to support grant of summary judgment in action by owner-beneficiary
to recover under life policy. NRCP 56(e).
3. Judgment.
Material issue of fact as to whether life policy had lapsed for nonpayment of premiums precluded grant of
summary judgment in insurer's favor in action by owner-beneficiary to recover under policy. NRCP
56(e).
OPINION
By the Court, Gunderson, J.:
Appellant Virginia Daugherty, whose Complaint in the lower court alleged her to be the
owner of a $1,000 policy issued by respondent Wabash Life Insurance Company on the life of
one Charlie Brown, deceased, has appealed to this Court from an Order granting a Motion for
Summary Judgment, made by respondent pursuant to NRCP 56. We have determined that the
granting of summary judgment was erroneous, because the unverified pleadings raised issues
of material fact that were not concluded either by admissions made under the provisions of
NRCP 36, or by the affidavit of one Ken H.
Bryant, filed in ostensible support of the Motion for Summary Judgment.
1

Appellant's Complaint named as defendants both respondent and its agent, Squires.
Respondent's Answer denied paragraph I of that Complaint: That she is the owner, and has
been for many years past, of the Wabash Life Insurance Company policy issued upon the life
of one Charlie Brown, the insured. Respondent also denied paragraph II: That pursuant to
said policy, premiums were paid upon the said policy, which was kept in full force and effect,
and the Defendants received the premiums. Respondent admitted paragraph III: That on
June 24, 1969, the insured, Charlie Brown, died in the State of Arizona, and a copy of the
death certificate and demand for payment of the face value of the insurance policy was duly
made upon the Defendants who refused to honor the demand. Paragraph IV, alleging that
the insurance policy was in the sum of $1,000.00, respondent answered by saying: . . . this
Defendant denies that there was any insurance for any amount.
Obviously, these pleadings suggested a number of possible areas of factual dispute
regarding the issuance of a policy, the payment or tender of premiums reserved, lapse and
notice of lapse, reinstatement rights, and the like. Later discovery efforts of the parties
establish that they were indeed addressing themselves to certain of these factual concerns, all
pivoting on the terms of the policy in question. For example, in response to Interrogatory 8 of
appellant's first set of Interrogatories, asking the basis of respondent's denial that there was
any insurance policy for any amount, respondent cryptically stated: The insured failed to
make the proper premium payment and the policy thereby lapsed. The insured was duly
notified that the policy had lapsed and provided with an application for reinstatement of the
policy, however, no steps were ever taken to reinstate the policy. Asked by a subsequently
filed Interrogatory to state on what it relied in asserting that the policy had lapsed, respondent
answered: See answer to Interrogatory 8, first set of Interrogatories. Respondent's
answers to other interrogatories, and particularly one seeking important information
concerning payments to respondent or its agent, Squires, were equally uninformative.
While meeting and defeating appellant's attempts at discovery in this and similar fashion,
respondent served a Request for Admissions, allowing ten days for answers in accordance
with NRCP 36, and requesting appellant to admit ultimate facts involving interpretation of
the policy in question, i.e.:
____________________

1
NRCP 56 and 36, Nevada Rules of Civil Procedure mentioned in this Opinion, are patterned after the
Federal Rules of Civil Procedure.
with NRCP 36, and requesting appellant to admit ultimate facts involving interpretation of
the policy in question, i.e.: (1) That premiums were to be paid on a monthly basis; (2) that
premiums were due on the third day of each month; (3) that the premium for December,
1968, was not paid within the allotted time; (4) that the insured was sent an application for
reinstatment; (5) that no [sic] application was never [sic] returned to Wabash Life
Insurance Company; (6) that all premiums tendered after November, 1968, were rejected
and returned to the payor; (7) that the insured was timely notified his policy had lapsed;
and (8) that the beneficiary was timely notified of 1apse.
2
Appellant's Answers to Request
for Admissions, which were tardily filed, admitted respondent's request No. 1; denied request
No. 2 for lack of information because respondent has refused to supply the documents
requested in connection with this; denied request Nos. 3, 7 and 8 without qualification; as to
No. 4, admitted only that a purported application for reinstatement had been sent by
respondent; as to No. 5, asserted that the request was not proper, a response similar to
certain of the answers respondent had made to appellant's Interrogatories; and denied request
No. 6 for want of information.
As noted, the discovery procedures just reviewed indicate generally the factual disputes to
which the parties were addressing themselves, and which manifestly were implicit in the
pleadings. It is further to be noted that if appellant's tardy Answers to Request for Admissions
were received by the lower court, these procedures resolved virtually none of the disputes to
which they were directed.
Before appellant's tardy Answers to Request for Admissions were filed, respondent filed
its Motion for Summary Judgment. Acrimonious disputes ensued between counsel and a
judge of the lower court, concerning efforts by appellant's attorney to have a motion for
production of documents heard prior to any hearing of respondent's Motion for Summary
Judgment, and ultimately both motions were reassigned to the Hon.
____________________

2
The insurance policy and other documents referred to in this Request for Admissions were not, and are not,
in the record. Asked by Interrogatory to state whether an apparent partial copy of an insurance policy was the
policy in issue, respondent stated: Exhibit A is not a copy of the complete policy as issued. Asked by
Interrogatory to set forth a copy of the policy, respondent answered N/A, and thereafter successfully resisted
a motion to compel answers to that and similar interrogatories, on the theory that documents are not discoverable
through interrogatories. A motion by appellant seeking production of documents, including the policy, was
brought on for hearing at the same time as respondent's Motion for Summary Judgment, and was either ignored
or denied by the lower court.
Judgment, and ultimately both motions were reassigned to the Hon. John F. Mendoza for a
hearing on March 23, 1970. After some proceedings on March 23, 1970, Judge Mendoza
continued the matter until March 24, 1970; and on that date, either ignoring or impliedly
denying appellant's Motion for Production of Documents, Judge Mendoza announced his
decision to grant respondent's Motion for Summary Judgment. The instant appeal is from an
Order entered March 25, 1970, in conformity with that decision.
[Headnote 1]
As error, appellant contends that NRCP 56(c) requires a hearing, which she contends
envisions a right to oral argument, assertedly denied to her by the lower court. In support of
the legal proposition propounded by her, appellant cites Dredge Corporation v. Penny, 338
F.2d 456 (9 Cir. 1964), an authority that upholds the right for which she contends. However,
assuming appellant had a right to oral argument, minutes of the lower court for March 23,
1970, recite:
This being the time set for hearing on Plaintiff's Motion for Production of Documents and
Defendants' Motion for Summary Judgment in the above entitled cause. Plaintiff represented
in Court by Charles L. Kellar, Esquire. Defendants represented in Court by Keith R. Edwards,
Esquire, of the law firm of Parraguirre, Rose, Pico and Norwood.
Mr. Kellar presented Plaintiff's Motion to the Court and argued in support thereof.
Argument in opposition by Mr. Edwards.
Thereafter, by the COURT ORDERED, Plaintiff shall have three days in which to answer
the demands, or the Motion for Summary Judgment will be granted.
Mr. Kellar stated he had already answered the demands.
Thereafter, by the COURT ORDERED, this matter continued until the hour of 9:15
A.M., March 24, 1970.
Although the minutes are not entirely clear on the issue, it appears to us that on March 23,
1970, the lower court heard oral argument, which it took to relate not only to appellant's
Motion for Production of Documents but also to respondent's Motion for Summary
Judgment, and that no further argument was sought by either party. Accordingly, we believe
appellant's first claim of error to be without merit.
Appellant also contends that, despite the fact that on March 23, 1970, the lower court
forgave the tardy filing of appellant's Answers to Request for Admissions, the court thereafter
improperly based summary judgment on admissions implied from appellant's failure to
submit timely answers. Respondent, in its Answering Brief, accepts appellant's view that
the lower court granted summary judgment because appellant's Answers to Request for
Admissions were filed late, but suggests the lower court's action was nonetheless proper,
saying: "Appellant, however, can show no place in the record where such an extension
was given, nor does the Appellant explain why an extension would be given on March 23,
1970, when the answers were purported to be filed on March 17, 1970."
in its Answering Brief, accepts appellant's view that the lower court granted summary
judgment because appellant's Answers to Request for Admissions were filed late, but
suggests the lower court's action was nonetheless proper, saying: Appellant, however, can
show no place in the record where such an extension was given, nor does the Appellant
explain why an extension would be given on March 23, 1970, when the answers were
purported to be filed on March 17, 1970. In other words, respondent's only response is, in
essence, to suggest to this Court the nonoccurrence of a judicial act which the lower court's
minutes for March 23, 1970, quoted above, clearly reflect did in fact occur. However,
although the Record on Appeal negates respondent's suggestion, and establishes that the
lower court granted an extension and forgave the late filing of appellant's Answers to Request
for Admissions, nothing in the record indicates the court thereafter disregarded that extension
and forgiveness. It appears to us, instead, that the lower court must have based summary
judgment upon the affidavit of Ken H. Bryant, which respondent had filed in support of its
Motion for Summary Judgment.
3

Respondent has not vigorously endeavored to vindicate the summary judgment appealed
from on the basis of the Bryant affidavit. Indeed, Respondent's Answering Brief
acknowledges that if Respondent's Requests for Admissions were timely answered, and not
admitted, then Summary Judgment should not have been granted. Despite this, we have
examined Bryant's affidavit to determine if it supports the lower court's judgment, and have
found that it offends NRCP 56{e) in a number of respects.
____________________

3
Bryant's affidavit recites: I. That he is the Vice-President and Claims Manager for Wabash Life Insurance
Company with offices at 2929 North Meridian Street, Indianapolis, Indiana. II. That he is familiar with the facts
in the above action. III. That the Defendant insured the life of CHARLIE BROWN commencing on 8/3/67 and
that subsequently, the premiums on that policy were to be paid monthly and were due on the 3rd day of each
month. IV. That premiums through November 3, 1968 were properly paid, but that the premium due on
December 3, 1968 was not tendered on the due date or within the subsequent grace period. V. That pursuant to
the contract, the life insurance contract on CHARLIE BROWN automatically lapsed. VI. That thereafter the
Defendant forwarded to the insured an application for reinstatement of the lapsed policy but that the Defendant
did not receive any response to its correspondence containing the application for reinstatement. VII. That
thereafter the Defendant received notice from the Plaintiff herein that the alleged insured had died and she was
making claim for payment on the policy as beneficiary. VIII. That because the policy on the life of CHARLIE
BROWN lapsed for nonpayment of the premiums and because no application for reinstatement was ever
received from the insured, affiant is informed and believes that there is no legal foundation to support Plaintiff's
action.
judgment, and have found that it offends NRCP 56(e) in a number of respects.
[Headnotes 2, 3]
Although the affidavit refers to the life insurance policy in issue, as well as to other
documents, no sworn or certified copies thereof were attached thereto or served therewith
as explicitly required by that rule. Indeed, Bryant's affidavit does not even show that he is the
custodian of any company records, and competent to lay a foundation for introduction of the
policy or any other document. Certainly, his capacity as Vice President and Claims
Manager carries no such necessary inference. Quite aside from considerations relating to the
affidavit's attempt to adduce incompetent, secondary proof of the content of documents,
requisite foundation is lacking to show Bryant's competence to testify to any of the affidavit's
other recitals. Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676 (1962). Furthermore,
most of these recitals are inadmissible conclusions for which no foundation could possibly be
laid, and that in the form presented certainly do not constitute such facts as would be
admissible in evidence. Bond v. Stardust, Inc., 82 Nev. 47, 410 P.2d 472 (1966); Catrone v.
105 Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966).
On a motion for summary judgment the burden of establishing the nonexistence of any
genuine issue of fact is upon the moving party, all doubts are resolved against him, and his
supporting affidavits and depositions, if any, are carefully scrutinized by the court. The object
of the motion is to separate the formal from the substantial issues raised by the pleadings, and
the court examines evidence on the motion, not to decide any issue of fact which may be
presented, but to discover if any real issue exists. Toebelman et al. v. Missouri-Kansas Pipe
Line Co., 3 Cir., 130 F.2d 1016, 1018. When affidavits are offered in support of a motion for
summary judgment, they must present admissible evidence, and must not only be made on the
personal knowledge of the affiant, but must show that the affiant possesses the knowledge
asserted. When written documents are relied on, they must be exhibited in full. The statement
of the substance of written instruments or of affiant's interpretation of them or of mere
conclusions of law or restatements of allegations of the pleadings are not sufficient. Rule
56(e), Rules of Civil Procedure; 3 Moore's Federal Procedure Under the New Rules, p. 3175
et seq. On appeal from an order granting a defendant's motion for summary judgment the
circuit court of appeals must give the plaintiff the benefit of every doubt.
of every doubt. Ramsouer v. Midland Valley Railroad Company, D.C., 44 F.Supp. 523, 526;
Weisser et al. v. Mursam Shoe Corporation et al., 2 Cir., 127 F.2d 344, 346; McElwain v.
Wickwire-Spencer Steel Company, 2 Cir., 126 F.2d 210. Walling v. Fairmont Creamery Co.,
139 F.2d 318 (8 Cir. 1943), at 322. In accord, see: Jameson v. Jameson, 176 F.2d 58 (D.C.
Cir. 1949); Alger v. United States, 252 F.2d 519 (5 Cir. 1958); F. S. Bowen Electric Co., v. J.
D. Hedin Construction Co., 316 F.2d 362 (D.C. Cir. 1963); 3 Barron & Holtzoff, Federal
Practice & Procedure 1237 (Wright ed. 1958).
The lower court's Order granting summary judgment is reversed; and the cause is
remanded, with instructions to afford appellant a fair opportunity to discover all documents
and other evidence relating to the issues raised by the pleadings, in accordance with the
Nevada Rules of Civil Procedure.
In accord with NRS 18.060, appellant is allowed her costs on appeal, upon the proper
filing of a cost bill.
Zenoff, C. J., Batjer, Mowbray, and Thompson, JJ., concur.
____________
87 Nev. 39, 39 (1971) Craig v. Warden
ROBBIE OLAN CRAIG, Appellant, v. WARDEN,
No. 6341
January 28, 1971 482 P.2d 325
Appeal from denial of post-conviction relief; Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
The district court denied relief, and defendant appealed. The Supreme Court held that
application for post-conviction relief, based on assertion that refusal to allow defendant to
speak prior to sentencing was contrary to requirement of statute, was barred, where asserted
error was not presented in defendant's earlier appeal from conviction and no reason was given
to explain such omission.
Affirmed.
Robert G. Legakes, Public Defender, and David M. Schreiber, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, of Carson City, Roy A. Woofter, District Attorney, and
Donald K. Wadsworth, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Application for post-conviction relief, based on assertion that refusal to allow defendant to speak prior to
sentencing was contrary to requirement of statute, was barred, where asserted error was not presented in
defendant's earlier appeal from conviction and no reason was given to explain such omission. NRS
207.010, 207.010, subd. 6.
When defendant's attorney spoke on his behalf at sentencing, defendant could not have been deprived of
any due process rights by reason of refusal to allow him to speak prior to sentencing. NRS 207.010,
207.010, subd. 6.
OPINION
Per Curiam:
Appellant was charged with armed robbery and with being an habitual criminal under NRS
207.010. (See previous appeal at 85 Nev. 130, 451 P.2d 365 (1969).) He was duly convicted
of the robbery charge, and after a hearing on the habitual criminal charge, was sentenced to
life imprisonment on July 31, 1967. At the sentencing hearing, appellant's attorney argued
with reference to the habitual criminal charge and then requested that appellant himself be
allowed to speak. The trial judge denied this request and subsequently imposed sentence of
life imprisonment.
Appellant brought this action for post-conviction relief on the basis that the trial judge's
denial of his request to speak at the sentencing hearing was improper. This contention was
rejected in the lower court. This appeal follows.
[Headnote 1]
On appeal, it is asserted that the trial court's refusal to allow appellant to speak was
contrary to the requirement of NRS 207.010(6).
1
This asserted error was not presented in
appellant's earlier appeal from this conviction and sentencing, and because no reason is given
to explain that omission, this application for post-conviction relief is barred. NRS 177.375;
Stocks v. Warden, 86 Nev. 758, 476 P.2d 469; Rogers v. Warden, 86 Nev. 359, 468 P.2d 993
(1970).
____________________

1
NRS 207.010(6) reads: If a defendant charged under this section is found guilty of, or pleads guilty to, the
primary offense, but denies any previous conviction charged, the court shall determine the issue of such previous
conviction after hearing all relevant evidence presented on such issue by the prosecution and the defendant. The
court shall impose sentence pursuant to subsections 1 and 2 of this section upon finding that the defendant has
suffered previous convictions sufficient to support an adjudication of habitual criminality.
[Headnote 2]
Appellant's attorney spoke in his behalf at the sentencing. He therefore cannot now claim
that he was deprived of any due process rights at the sentencing hearing.
Affirmed.
____________
87 Nev. 41, 41 (1971) Sali v. Warden
MICHAEL A. SALI, Appellant, v. WARDEN,
No. 6451
February 8, 1971 482 P.2d 237
Appeal from denial of post-conviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Clarence Sundean, Judge.
The district court denied petition, and petitioner appealed. The Supreme Court held that
failure to advise defendant, who pled guilty, of his ineligibility for parole because of his
previous convictions was not error, and defendant was not entitled to plead anew.
Affirmed.
Robert G. Legakes, Public Defender, and Steven L. Godwin, Deputy Public Defender,
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Lorin D.
Parraguirre, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Failure to advise defendant, who pled guilty, of his ineligibility for parole because of his previous
convictions was not error, and defendant was not entitled to plead anew. NRS 174.035, subd. 1,
213.110.
OPINION
Per Curiam:
Appellant pled guilty to two counts of burglary and was sentenced to a term of fifteen
years in prison. Because of previous convictions, he is denied eligibility for parole under NRS
213.110. He now asserts that he must be allowed to plead anew because he was not advised
of his ineligibility for parole, which he says is a "consequence of his plea" under NRS
174.035{1).1
87 Nev. 41, 42 (1971) Sali v. Warden
which he says is a consequence of his plea under NRS 174.035(1).
1

It was decided in Anushevitz v. State, 86 Nev. 191, 467 P.2d 115 (1970), that statutory
ineligibility for parole is not a consequence of a guilty plea. That decision was followed in
Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970), and in Stocks v. Warden, 86 Nev. 758,
476 P.2d 469 (1970).
We recognize that other courts have reached different results on this question in construing
an identical statute. Compare Munich v. United States, 337 F.2d 356 (9th Cir. 1964); Durant
v. United States, 410 F.2d 689 (1st Cir. 1969); Berry v. United States, 412 F.2d 189 (3rd Cir.
1969); Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970); and Harris v. United States,
426 F.2d 99 (6th Cir. 1970), with United States v. Caruso, 280 F.Supp. 371 (S.C.N.Y. 1967),
aff'd sub nom. United States v. Mauro, 399 F.2d 158 (9th Cir. 1968); Trujillo v. United
States, 377 F.2d 266 (5th Cir. 1967); and Smith v. United States, 324 F.2d 436 (D.C. Cir.
1963).
It is noteworthy that this conflict between the federal circuits has not been resolved by the
U.S. Supreme Court. Nor has this question been addressed by that court on a constitutional
basis, under Boykin v. Alabama, 395 U.S. 238 (1968).
We feel that the sounder approach to this question is that announced in Anushevitz, Mathis
and Stocks. The district court judge did not err in failing to advise Sali of his ineligibility for
parole because of his previous convictions.
Affirmed.
____________________

1
NRS 174.035 Kinds of pleas; when plea of not guilty is entered by court.
1. A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may
refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first
addressing the defendant personally and determining that the plea is made voluntarily with understanding of the
nature of the charge and consequences of the plea.
. . . .
____________
87 Nev. 42, 42 (1971) Schieve v. Warren
DONALD R. SCHIEVE, Appellant, v. F.
EVERETT WARREN, Respondent.
No. 6208
February 9, 1971 482 P.2d 303
Appeal from judgment of the Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Action by seller of business against buyer for breach of written agreement relating to the
sale. The district court gave judgment for seller, and buyer appealed. The Supreme Court,
Thompson, J., held that admission of parol evidence to effect that despite written documents
to contrary the parties agreed that purchase price was $60,000 and that seller was not obliged
to render consulting services specified, was error where inevitable consequence of such
admission was to alter plain wording of written documents and to show that buyer had agreed
to pay greater sum than that expressed in the writings, where it was not contended that written
documents were unclear, ambiguous, incomplete or the result of fraud, and where parties
performed on original agreement as modified from 1964 until differences between them arose
in 1968.
Reversed and remanded for further proceedings in accordance with this opinion.
Bissett & Logar, of Reno, for Appellant.
Sanford, Sanford & Fahrenkopf and Mills Lane, of Reno, for Respondent.
1. Evidence.
Parol evidence is admissible to show that, although parties have executed a written contract, they did not,
at the time of its execution, intend it to be a contract, and that it was not, therefore, a contract and did not
place either party under any legal obligation.
2. Contracts.
When a written contract is shown to be a sham neither party is under obligation to the other.
3. Evidence.
Admission of parol evidence, in suit by seller against buyer for breach of written agreement relating to
sale of business, to effect that despite written documents to contrary the parties agreed that purchase price
was $60,000 and that seller was not obliged to render consulting services specified, was error where
inevitable consequence of such admission was to alter plain wording of written documents and to show that
buyer had agreed to pay greater sum than that expressed in the writings, where it was not contended that
written documents were unclear, ambiguous, incomplete or the result of fraud, and where parties performed
on original agreement as modified from 1964 until differences between them arose in 1968.
OPINION
This appeal is from a judgment for $19,080 plus interest and costs in favor of Warren, the
seller, and against Schieve, the buyer, for breach of a written agreement for the sale of a
clinical laboratory business.
and costs in favor of Warren, the seller, and against Schieve, the buyer, for breach of a written
agreement for the sale of a clinical laboratory business. The original agreement was twice
modified in writing. District Court error is claimed in allowing parol evidence to alter the
agreement as modified. Such evidence was received upon the theory that the second
modification of the original agreement, upon which this dispute mainly rests, was never
intended to create legal relations between the parties, was made for an ulterior purpose, and
was, in fact, a sham. After hearing and evaluating the parol evidence the court concluded that
the second modification to the original agreement was a sham agreement, and released the
seller from his obligations thereunder, but bound the buyer to perform its terms. Judgment
was entered accordingly.
Warren owned a going business which he operated under the assumed name of Western
Clinical Laboratories. Schieve, a doctor specializing in pathology, wished to buy it. In 1964
they entered into a written agreement of sale for the price of $25,000 payable as set forth
therein. In addition Warren was given a five-year employment contract with an option to
renew for another five years at a lucrative salary and other benefits. The parties performed
thereunder until February 15, 1966, when they consummated two modification agreements.
The first changed the manner in which the purchase price of $25,000 was to be paid. The
second terminated the employment provisions and provided instead that Warren would
perform consultation services for a period of five years for which he would be paid
$31,822.87 at monthly intervals in accordance with an amortization schedule prepared by
Warren's accountant. Should Schieve terminate the consultation agreement without cause he
was obliged to pay Warren, as liquidated damages, $31,822.87 less consultation payments
made prior to termination.
Schieve made all payments on the $25,000 obligation and was not in default at the time of
trial. Moreover, he made all payments pursuant to the amortization schedule for consulting
services until March 1, 1968, when Warren was notified that he had breached his duty to
perform consulting work and that no further payments would be made therefor. Warren
commenced this law suit three months later.
[Headnotes 1-3]
The parol evidence received by the court over objection was that despite the written
documents to the contrary, the parties agreed that the purchase price was $60,000 and that
Warren was not obliged to render the consulting services specified.
The agreements were prepared as they were for tax and other purposes. The court accepted
that evidence and based its findings and judgment thereon. This, we think, was error. The
inevitable consequence of the court's ruling was to alter the plain wording of the written
documents in contravention of established law [Young Electric Sign v. Lynch, 77 Nev. 416,
365 P.2d 648 (1961); Tallman v. First Nat. Bank, 66 Nev. 248, 256, 208 P.2d 302 (1949)]
and to show that the buyer had agreed to pay a greater sum than that expressed in the
writings. This is not permissible. Sims v. Grubb, 75 Nev. 173, 176, 336 P.2d 759 (1959).
It is not contended that the written documents were unclear or ambiguous,
1
incomplete,
2
or the result of fraud.
3
The agreements were carefully drawn by competent counsel. The
parol evidence was received solely to establish that the second modification, the consultation
agreement, was a sham in that the parties never intended for Warren to perform consulting
services, and that the consideration to be paid therefor, $31,822.87, was a portion of the
purchase price. This purpose, however, does not fit the concept of a sham contract since the
objective was to bind one party, Schieve, but release the other. Parol evidence is admissible to
show that, although the parties have executed a written contract, they did not, at the time of
its execution, intend it to be a contract, and that it was not, therefore, a contract, and placed
neither party under any legal obligation. Nice Ball Bearing Co. v. Bearing Jobbers, 205 F.2d
841 (7 Cir. 1953); cf. Child v. Miller, 74 Nev. 223, 327 P.2d 342 (1958); Western Nat. Ins.
Co. v. Trent, 69 Nev. 239, 247 P.2d 208 (1952).
4
When a written contract is shown to be a
sham, neither party is under obligation to the other.
In the case at hand the parties performed under the original agreement as modified from
1964 until differences between them arose in 1968. There is simply no room for Warren's
contention that the written documents were not intended to be operative and were ineffective
to create reciprocal obligations. The differences between the parties were brought to a head in
March 1968 when counsel for Schieve notified Warren that he had breached the consultation
agreement and that no further payments for consulting services would be made.
____________________

1
Fredricks v. City of Las Vegas, 76 Nev. 418, 356 P.2d 639 (1960); Woods v. Bromley, 69 Nev. 96, 241
P.2d 1103, (1952); Club v. Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947).

2
Gravelle v. Burchett, 73 Nev. 333, 319 P.2d 140 (1957).

3
Chiquita M. Co. v. F. M. & Co., 60 Nev. 142, 104 P.2d 191 (1940).

4
Annot., 71 A.L.R.2d 382 re writing as a sham agreement.
payments for consulting services would be made. Warren denied that he had failed to perform
as promised. Their agreement provided that should Schieve terminate the consultation
agreement without cause he was obliged to pay Warren, as liquidated damages, $31,822.87
less consultation payments made prior to termination. The result of the dispute between them
inevitably must turn upon this provision of the consultation agreement, that is, whether
Schieve did, or did not have cause to terminate the same.
____________
87 Nev. 46, 46 (1971) Vegas Paint Co. v. Travelers Indem. Co.
VEGAS PAINT COMPANY, Appellant, v. TRAVELERS INDEMNITY COMPANY and
UNITED BOND INSURANCE COMPANY, Respondents.
No. 6217
February 10, 1971 482 P.2d 813
Appeal from a judgment on the pleadings rendered in favor of the respondents. Eighth
Judicial District Court, Clark County; William P. Compton, Judge.
Supplier of materials to contractor brought action against bonding companies which had
executed and furnished State Contractor's Board Bonds for the unpaid balance which
contractor owed to the supplier. The district court rendered judgment on the pleadings in
favor of the bonding companies and the supplier appealed. The Supreme Court, Young, D. J.,
held that where supplier's complaint alleged that failure of contractor to pay claim was an
unlawful act and that contractor's failure to pay claim constituted embezzlement which was a
prohibited act under statute and which, if established by sufficient evidence, would render
bonding companies liable to supplier, supplier was entitled to a trial on the merits.
Reversed and remanded for trial.
Robert K. Dorsey and John A. Taylor, of Las Vegas, for Appellant.
Leavitt, Edwards, Gladstone & Greenman, of Las Vegas, for Respondents.
Pleading.
Where supplier's complaint against bonding companies which had executed and furnished State
Contractor's Board Bonds alleged that failure of contractor to pay supplier's claim was an unlawful act
and that failure to pay claim constituted embezzlement which was prohibited under statute and which, if
established by sufficient evidence, would render bonding companies liable to supplier, supplier was
entitled to a trial on the merits; bonding companies were not entitled to judgment on the pleadings. NRS
205.310, 624.010 et seq., 624.273, subd. 1(c), 624.300, 624.360.
OPINION
By the Court, Young, D. J.:
The pleadings in this case indicate that the appellant sold and delivered materials to A. R.
Bruni, aka Anthony R. Bruni and Bruni Construction Company, between October 1, 1966 and
May 5, 1967, and that those materials were used by A. R. Bruni in the construction business.
The failure of Bruni to pay for these materials resulted in the appellant bringing an action and
obtaining a default judgment against him in the amount of $1,610.98. The appellant attached
funds due Bruni from the First Western Savings & Loan Association in Las Vegas, Nevada,
and as a result of the attachment was able to obtain $1,000 which was applied to the
judgment, leaving a balance of $610.98 now due. The appellant company claims the
respondents are indebted to it for the unpaid balance of its claim plus interest by virtue of
certain State Contractor's Board Bonds executed and furnished by the respondents pursuant to
NRS Chapter 624. The appellant also alleges that the nonpayment was due to embezzlement
by A. R. Bruni and that this embezzlement constituted an unlawful act on his part, in
violation of NRS 624.273(1)(c),
1
thereby rendering the bonding companies accountable.
The respondent moved for a judgment on the pleadings. In granting that motion, the trial
court held that the failure of a contractor to pay his supplier for materials is not declared to be
an unlawful act or omission by NRS Chapter 624.
A review of the cases construing NRS Chapter 624, reveals that the question of whether
embezzlement constitutes an unlawful act" within the meaning of that chapter has not
heretofore been decided by this court.
____________________

1
NRS 624.273(1)(c): 1. Each bond or deposit required by NRS 624.270 shall be in favor of the State of
Nevada for the benefit of any person who:
. . .
(c) Is injured by an unlawful act or omission of the contractor in the performance of a contract.
unlawful act within the meaning of that chapter has not heretofore been decided by this
court.
In Day & Night Mfg. Co. v. Fidelity & Cas. Co. of N.Y., 85 Nev. 227, 452 P.2d 906
(1969), it was held that the mere failure of a contractor to pay his supplier for materials is not
an unlawful act or omission. Boswell v. Insurance Company of North America, 85 Nev. 359,
455 P.2d 174 (1969), held that performing faulty work did not impose liability on the
bondsman under NRS Chapter 624. In Zalk-Josephs Company v. Wells Cargo, Inc., 77 Nev.
441, 366 P.2d 339 (1961), NRS 205.310 was simply relied upon to show an agency relation
between Wells Cargo, the contractor, and Zalk-Josephs, a supplier of material to a
subcontractor, and this court held there that NRS 205.310, could not be used to show such an
agency relation.
We must interpret the pertinent sections of NRS Chapter 624 as they read when this cause
of action arose between October 1, 1966 and May 1967. At that time NRS 624.300 read as
follows: The board shall have power either to suspend or revoke licenses already issued and
to refuse renewals of licenses when the applicant or licensee:
1. Has been guilty of acts of conduct harmful to either the safety or protection of the
public; or
2. Has been guilty of dishonesty, fraud and deceit whereby injury has been sustained by
another; or
3. Cannot establish financial responsibility at the time of renewal; or
4. Has failed to comply with and complete a contract; or
5. Has been guilty of improper diversion of funds, misuse or misappropriation of funds,
willful delay in completion of construction and the like.; and
NRS 624.360 read: Any violation of this chapter shall constitute a misdemeanor, and any
fine levied for such violation shall not be less than $50.
The foregoing statutes indicate that the contractor's board could discipline any contractor
who violated any of the prohibited acts, and that the violation of any of the prohibited acts
amounted to a misdemeanor. One of the prohibited acts was dishonesty, fraud or deceit.
Another of the prohibited acts was improper division of funds, misuse or misappropriation of
funds. All are unlawful acts.
Paragraph 6 of the appellant's complaint alleges that the failure of A. R. Bruni to pay the
claim of the appellant was an unlawful act and Paragraph 7 alleges that failure to pay the
claim of the appellant constituted embezzlement.
the claim of the appellant constituted embezzlement. Embezzlement clearly is a misuse or
misappropriation of funds, which is one of the prohibited acts included in NRS 624.300, and
if established by sufficient evidence would render the respondents liable to the appellant
under NRS 624.273(1)(c).
Only a trial on the merits will indicate whether the evidence can support the allegation of
misappropriation of funds or embezzlement.
We therefore reverse and remand for trial.
__________
87 Nev. 49, 49 (1971) Saddler v. Peterson Tractor Co.
ROY B. SADDLER, Appellant, v. PETERSON TRACTOR
CO., a Corporation, Respondent.
No. 6256
February 10, 1971 482 P.2d 322
Appeal from judgment of the First Judicial District Court, Carson City; Emile J. Gezelin,
Judge.
Action by judgment creditor to recover from judgment debtor corporation's president and
president's brother, who bought all of corporation's assets from president before judgment in
question was rendered but allegedly at time when indebtedness of corporation to creditor was
owing, on ground of actual fraud. The district court found for creditor, and president's brother
appealed. The Supreme Court held that evidence supported finding of actual fraud on part of
president and brother.
Affirmed.
Martillaro & Bucchianeri, of Carson City, for Appellant.
Sinai & Sinai, of Reno, for Respondent.
1. Judgment.
Evidence in action by judgment creditor to recover from judgment debtor corporation's president and
president's brother, who bought all of corporation's assets from president before judgment in question was
rendered but allegedly at time when indebtedness of corporation to creditor was owing, supported finding
of actual fraud on part of president and brother.
87 Nev. 49, 50 (1971) Saddler v. Peterson Tractor Co.
2. Interest.
Assessment in action in which judgment creditor successfully sought to recover from judgment debtor
corporation's president and president's brother, who bought all of corporation's assets from president before
judgment in question was rendered but allegedly at time when indebtedness of corporation to creditor was
owing, on ground of actual fraud of interest of seven percent per annum on full amount of prior judgment
from date of prior judgment was proper.
OPINION
Per Curiam:
[Headnotes 1, 2]
In 1963 this court directed the district court to enter judgment for Peterson Tractor against
Cal-West Equipment Co. for $12,870 plus interest thereon from October 30, 1961 at seven
percent per year, together with an attorney's fee to be fixed by the lower court and costs. A fee
of $1,900 was allowed and costs were fixed at $59.95. Judgment was entered accordingly.
Peterson Tractor v. Cal-West Equip., 79 Nev. 461, 386 P.2d 609 (1963). Peterson Tractor
was unable to locate assets of Cal-West against which satisfaction of judgment could be
obtained. In November 1964 Peterson Tractor learned that about one and one-half years
before trial of the above-noted case, Cal-West, through its President Harry Saddler, had sold
all of its assets to Roy Saddler, Harry's brother. This knowledge caused Peterson Tractor to
commence the instant action against Harry and Roy Saddler claiming actual fraud, since the
indebtedness of Cal-West to Peterson Tractor was owing when the sale to Roy was made. The
trial court found actual fraud by the Saddlers and entered judgment against them jointly and
severally for the Cal-West indebtedness. Only Roy Saddler has appealed therefrom. His
challenge is to the sufficiency of the evidence to sustain the finding of fraud on his part.
There is no purpose to be served in reciting the evidence at this point. We have examined the
record with care and find ample evidence to support the district court's findings and
judgment. It was likewise permissible for the trial court to assess interest at seven percent per
annum, by way of damages, upon the full amount of the prior judgment against Cal-West
from October 30, 1961. 36 A.L.R.2d 337, 496.
Affirmed.
____________
87 Nev. 51, 51 (1971) Plotkin v. National Lead Co.
SHELDON PLOTKIN and BARBARA PLOTKIN, Individually and Doing Business as
PAINTIN' PLACE and AMERICAN PAINT & SUPPLY COMPANY, INC.,
Appellants, v. NATIONAL LEAD COMPANY, Respondent.
No. 6265
February 10, 1971 482 P.2d 323
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
Llewellyn A. Young, Judge.
Action against corporation and individuals upon account stated. The district court granted
summary judgment for the creditor, and the defendants appealed. The Supreme Court,
Thompson, J., held that a letter written by an individual who, with his wife, had formed a
corporation, regarding the balance we owe you through [the corporation] and a subsequent
agreement as to the amount of indebtedness did not establish assumption of the corporate
debt by such individuals, and that evidence presented a factual issue, precluding summary
judgment, as to whether the individuals were the alter ego of the corporation.
Affirmed as to American Paint; reversed and remanded for trial as to the Plotkins.
David Abbatangelo, of Las Vegas, for Appellants.
Robert K. Dorsey, of Las Vegas, for Respondent.
1. Novation.
Letter written by individual who, with his wife, had formed corporation, regarding the balance we owe
you through [the corporation] and a subsequent agreement as to amount of indebtedness did not establish
assumption of corporate debt by individual.
2. Judgment.
In suit against corporation and individuals upon account stated, in relation to debt contracted by
corporation, evidence presented factual issue, precluding summary judgment, as to whether individuals
were alter ego of corporation.
OPINION
This appeal is from a summary judgment in favor of National Lead and against the
Plotkins and American Paint & Supply in an action commenced by National Lead upon an
account stated in the sum of $1,702.36.
account stated in the sum of $1,702.36. There is no question but that American Paint was
indebted to National Lead for that amount. However, that company is no longer in business.
The core of the dispute is whether the Plotkins are likewise indebted by reason of having
individually assumed American Paint's obligation, or upon the theory that they are the alter
ego of American Paint. The lower court, in holding the Plotkins accountable for the debt, did
not give its reasons. In reviewing all documents in support of and in opposition to the
summary judgment motion, we have concluded that a genuine issue of material fact exists as
to the liability of the Plotkins and reverse the judgment against them and remand for trial.
American Paint is a Wisconsin corporation which the Plotkins formed in 1967. The
indebtedness which is the subject of this suit was incurred by American Paint. In the fall of
1968 the Plotkins left Wisconsin, moved to Las Vegas and established there a business under
the fictitious name Paintin' Place. In December 1968, Mr. Plotkin wrote National Lead
regarding the balance we owe you through American Paint, and requested an extension of
time within which to pay it. As a corporate officer of American Paint he felt a moral
responsibility for the debt and believed that it could be paid from accounts receivable of
American Paint if the requested extension of time was granted. Subsequently, in August
1969, Mrs. Plotkin acknowledged to counsel for National Lead that $1,702.36 was the correct
indebtedness. Apparently, collection of American Paint's accounts receivable did not enable
the Plotkins to pay the debt. The recitation above is given in the light most favorable to the
Plotkins, since they are entitled to that advantage when summarily defeated upon motion
without trial. Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45 (1969).
[Headnotes 1, 2]
It is apparent that under the facts as related there was not an assumption of the corporate
debt. It is equally clear that the scanty record will not permit one to conclude, as a matter of
law, that the alter ego doctrine should be applied. The record, at this moment, does not
disclose that the corporation was governed by the Plotkins; that there was such a unity of
interest and ownership that one is inseparable from the other; and that adherence to the fiction
of separate entity would promote injustice. McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317
P.2d 957 {1957).
P.2d 957 (1957). Perhaps a trial will prove alter ego. At this point, it is not established.
Affirmed as to American Paint; reversed and remanded for trial as to the Plotkins.
Zenoff, C. J., Batjer, Mowbray, and Gunderson, JJ., concur.
____________
87 Nev. 53, 53 (1971) Singleton v. State
GEORGE D. SINGLETON, Appellant, v.
STATE OF NEVADA, Respondent.
No. 6313
February 10, 1971 482 P.2d 288
Appeal from judgment of conviction of the Eighth Judicial District Court, Clark County;
Clarence Sundean, Judge.
Defendant was convicted of robbery in the district court and defendant appealed. The
Supreme Court, Thompson, J., held that an officer who heard the report of the robbery and
saw a vehicle which was proceeding rapidly on a natural escape route from the location of the
robbery and which failed to stop as required at a controlled intersection had probable cause,
after seeing that two occupants were dressed as the robbers had been reported to be dressed,
to arrest them for robbery.
Affirmed.
Robert G. Legakes, Public Defender, and Robert Archie, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, of Carson City, Roy A. Woofter, District Attorney, and
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Arrest.
Officer who heard report of robbery and saw vehicle which was proceeding rapidly on natural escape
route from location of robbery and which failed to stop as required at controlled intersection had probable
cause to stop vehicle and detain its occupants for inquiry and investigation.
2. Arrest.
Officer who heard report of robbery and saw vehicle which was proceeding rapidly on natural escape
route from location of robbery and which failed to stop as required at controlled intersection had probable
cause, after seeing that two occupants were dressed as robbers had been reported to be
dressed, to arrest them for robbery.
87 Nev. 53, 54 (1971) Singleton v. State
dressed as robbers had been reported to be dressed, to arrest them for robbery.
OPINION
The appellant stands convicted of robbery. He contends that the record does not show
probable cause for his arrest with the consequence that all evidence seized at the time of
arrest is tainted and should have been suppressed.
At 4:55 a.m. an officer on patrol received a radio report of an armed robbery at Frank's Bar
on Tropicana Boulevard. The suspects were described as two Negro male adults in their
twenties, one wearing tan pants and the other gray pants. Shortly thereafter the officer
observed a car proceeding rapidly on a natural escape route from the location of the robbery.
That car failed to stop as required at a controlled intersection, and the officer pursued, with
overhead emergency lights on. At first the officer did not believe that the driver of the car was
going to obey, but within about ten seconds he pulled his car over to the side of the road and
stopped. The officer observed three Negro male adults in the car. The officer exited from his
patrol car with shotgun in hand and ordered the occupants out of their car. The officer then
noticed that one of them was wearing tan pants and another one gray pants. At this moment a
backup officer arrived and observed a gun and other items in plain sight in the car. Singleton
and his companions were then placed under arrest.
[Headnotes 1, 2]
It is apparent that the officer had probable cause to stop the car and detain its occupants for
inquiry and investigation. Robertson v. State, 84 Nev. 559, 562, 445 P.2d 352 (1968); Harper
v. State, 84 Nev. 233, 244, 440 P.2d 893 (1968). It is equally apparent that when the officer
saw that two of the occupants were dressed as the robbers had been reported dressed, he had
probable cause to arrest them for robbery. Nootenboom v. State, 82 Nev. 329, 336, 418 P.2d
490 (1966).
Affirmed.
____________
87 Nev. 55, 55 (1971) Nebaco, Inc. v. Riverview Realty Co.
NEBACO, INC., and NEVADA NATIONAL BANK, Appellants,
v. RIVERVIEW REALTY CO., INC., Respondent.
No. 6283
February 12, 1971 482 P.2d 305
Appeal from order granting summary judgment in an action seeking to declare a lease
valid and binding where lessee asserts impossibility of performance. Second Judicial District
Court, Washoe County; Thomas O. Craven, Judge.
The district court entered summary judgment in favor of the lessor and the lessee and its
parent organization appealed. The Supreme Court, Zenoff, C. J., held that where lessee knew
that permission of regional administrator of national banks was necessary to invest in bank
premises in excess of the capital stock of the bank but lessee did not provide for contingency
of inability to obtain the regional administrator's permission to invest amount desired and
lessee could have built less expensive bank building without that permission, lessee was not
entitled to terminate the contract under doctrine of impossibility because it did provide for the
contingency of inability to obtain financing.
Affirmed.
Guild, Hagen & Clark, of Reno, for Appellants.
Sidney W. Robinson and Sinai & Sinai, of Reno, for Respondent.
1. Contracts.
Generally, defense of impossibility of performance is available to promisor where his performance is
made impossible or highly impractical by occurrence of unforeseen contingencies, but if the unforeseen
contingency is one which the promisor should have foreseen, and for which he should have provided, the
defense is unavailable to him.
2. Contracts.
If foreseeable contingency is provided for in contract, its occurrence provides excuse for
nonperformance.
3. Landlord and Tenant.
Where lessee knew that permission of regional administrator of national banks was necessary to invest in
bank premises in excess of the capital stock of the bank but lessee did not provide for contingency of
inability to obtain the regional administrator's permission to invest amount desired and lessee could have
built less expensive bank building without that permission, lessee was not entitled to terminate the
contract under doctrine of impossibility because it did provide for the contingency of
inability to obtain financing.
not entitled to terminate the contract under doctrine of impossibility because it did provide for the
contingency of inability to obtain financing. Federal Reserve Act, 24A; 12 U.S.C.A. 371d.
4. Contracts.
One who contracts to render a performance for which government approval is required assumes duty of
obtaining such approval and risk of its refusal is on him.
Where a lease is restricted to a use legal in itself but with respect to which the law requires a license or
permit, it is generally presumed that the parties anticipated that a license would be obtained and if, in fact, a
license is refused, the lessee assumes the risk of refusal.
OPINION
Nebaco, together with its parent organization, Nevada National Bank, seeks to set aside its
obligations under a lease executed with Riverview Realty on the ground that performance on
its part became impossible.
On March 1, 1969 Nebaco and Riverview Realty executed a long-term lease. Nebaco's
performance under this lease was guaranteed by Nevada National Bank. The pertinent
portions of the lease state that Lessee shall have up to and including August 1, 1969, within
which to attempt to obtain interim and/or long-term financing for construction of
improvements upon the land . . . . Further, that If on or before August 1, 1969, Lessee has
not been able after exercise of reasonable diligence . . . to procure such financing above
described, Lessee may thereupon at its option, terminate this lease by giving written notice to
Lessor on or before August 1, 1969. If the lessee failed to cancel the lease before August 1,
1969 or if it obtained financing, the effective date of the lease was March 1, 1969.
Under the provisions of 12 U.S.C. 371(d), National Bank investments in premises are
limited to the amount of the capital stock of the bank, which in this case was $1,183,600.
Investments of more than that sum in premises require the permission of the Regional
Administrator of National Banks. Although the lease contained no specific provisions
regarding the extent of the structure to be constructed and made no mention of the condition
of obtaining the Regional Administrator's permission Nebaco decided to construct a four to
five million dollar building. Permission to invest that sum for this purpose was denied by the
Regional Administrator on March 3, 1969.
Nebaco notified Riverview on July 23, 1969 that the lease was being terminated but
Riverview rejected the termination.
Riverview brought this action to declare the lease in full force and effect. Nebaco asserted
the affirmative defense that it was impossible for defendants, or either of them, to obtain or
guarantee the financing. . . . A motion for summary judgment was made by Riverview,
arguing that the defense of impossibility was unavailable because Nebaco knew of the need to
obtain the Regional Administrator's permission and should have provided for the contingency
of its denial, and because Nebaco could build a less expensive building without that
permission. Nebaco now appeals the granting of the motion for summary judgment, asserting
there were factual questions of whether reasonable diligence was exercised in seeking
financing. If such reasonable diligence was exercised, they assert, the defense of impossibility
may be available and there must be further proceedings.
[Headnotes 1, 2]
Generally, the defense of impossibility is available to a promisor where his performance is
made impossible or highly impractical by the occurrence of unforeseen contingencies
(Restatement of Contracts, 454 (1932)), but if the unforeseen contingency is one which the
promisor should have foreseen, and for which he should have provided, this defense is
unavailable to him. Restatement of Contracts, 457 (1932); 6 Williston on Contracts, 1932
(rev. ed. 1938). If the foreseeable contingency is provided for in the contract, its occurrence
does, of course, provide an excuse for nonperformance. 6 Williston on Contracts, 1968 (rev.
ed. 1938).
[Headnote 3]
Nebaco urges that since it provided for the contingency of inability to obtain financing, it
may terminate the contract under the doctrine of impossibility. It must fail in that assertion.
The only open-end contingency which bound the lessor was the provision for the lessee's
exercise of reasonable diligence to obtain financing. The lease did not provide for the
contingency of inability to obtain the Regional Administrator's permission to invest the
amount desired. These are distinct contingencies, though they are argued as one and the same
by Nebaco.
[Headnote 4]
Without specific provision in the contract concerning the restraints and inhibitions to
which the bank is bound under the federal laws the expectation is that it would build only
what it could build with or without governmental permission.
could build with or without governmental permission. The administrator's consent is a factor
with which only the lessee has to contend, not the lessor. One who contracts to render a
performance for which government approval is required assumes the duty of obtaining such
approval and risk of its refusal is on him. Security Sewage Equipment Co. v. McFerren, 237
N.E.2d 898 (Ohio 1968); 6 Corbin on Contracts, 1347 (1962).
[Headnote 5]
Therefore, the central question here is not whether Nebaco exercised reasonable diligence
to obtain financing, rather, it is the failure to obtain the Regional Administrator's permission
which is relied upon as creating the defense of impossibility. This case is thus analogous to
those in which a lease is restricted to a use legal in itself but with respect to which the law
requires a license or permit. In such cases it is generally held that it will be presumed that the
parties anticipated that a license would be obtained and if in fact a license is refused, the
lessee is held to have executed the lease with an awareness of the existing law and to have
assumed the risk of refusal. Warshawsky v. American Automotive Products Co., 138 N.E.2d
816, 820 (Ill.App. 1956).
The termination of the lease rested upon Nebaco's inability to obtain the required
permission of the Regional Administrator, not upon its failure to obtain financing. In such a
situation, the doctrine of impossibility is unavailable because the contingency which arose is
one which should have been foreseen and provided for in the contract.
Affirmed.
____________
87 Nev. 58, 58 (1971) Lyerla v. Watts
JERRY LYERLA, Appellant, v. DAVID W. WATTS, ELSIE
J. WATTS, and BERT LARSON, Respondents.
No. 6260
February 16, 1971 482 P.2d 318
Appeal from judgment of Second Judicial District Court, Washoe County; John F. Sexton,
Judge.
Action to recover sum paid on purchase of stock of corporation whose main asset
consisted of inventory and equipment of bar and restaurant.
bar and restaurant. Sellers counterclaimed for recovery of balance of total purchase price and
for recovery of moneys allegedly paid for expenses incurred by buyer during time he operated
bar. The district court denied portion of counterclaim, permitted sellers to withdraw other
portion of counterclaim and denied buyer's claim. Buyer appealed. The Supreme Court,
Mowbray, J., held that where seller ousted buyer, who had become delinquent in sums owed
under contract for sale, from possession and took over operation of establishment in question,
and contract of sale, which provided that buyer was to have full control and management of
corporation and its properties while stock was in escrow, contained no forfeiture provision,
nor any provision for liquidated damage in case of default, buyer was entitled to return of
moneys paid by him under such contract.
R. E. Holland, of Carson City, for Appellant.
Goldwater, Hill, Mortimer and Rose, of Reno, for Respondents.
1. Corporation.
Where seller of stock in corporation, main asset of which consisted of inventory and equipment of bar
and restaurant, ousted buyer, who had become delinquent in sums owed under contract of sale, from
possession and took over operation of such establishment, and contract, which provided that buyer was to
have full control and management of corporation and its properties while stock was in escrow, contained no
forfeiture provision, nor any provision for liquidated damages in case of default, buyer was entitled to
return of moneys paid by him under such contract.
2. Vendor and Purchaser.
If there has been rescission by conduct of parties, purchaser is entitled to restitution of amount paid on
purchase price under contract of sale less reasonable rental value of premises while he had possession.
3. Corporations.
Record on appeal, in action to recover sum paid on purchase of stock of corporation, whose main assets
consisted of inventory and equipment of bar and restaurant, did not establish, for purposes of setoff, that
sellers had incurred damages during buyer's operation of such establishment. NRCP 75(n).
OPINION
This case presents a classic example of the difficulties that arise on appeal when the record
presented to the appellate court fails to include a stenographic record of the proceedings
before the trial court and the statement of the evidence in lieu thereof is inadequate.
court fails to include a stenographic record of the proceedings before the trial court and the
statement of the evidence in lieu thereof is inadequate. NRCP 75(n).
1

The plaintiff-appellant, Lyerla, commenced this action in the district court to recover
$6,900, representing the sums he had paid defendants-respondents, the Wattses, on the
purchase of the stock of the R. & B. Corporation, whose main asset consisted of the inventory
and equipment of the 7 Seas bar and restaurant in Reno. The Wattses answered the complaint
by asserting a counterclaim in two counts against Lyerla, seeking (1) recovery of the balance
of the total purchase price of the stock and (2) recovery of moneys R. & B. Corporation had
allegedly paid for expenses incurred by Lyerla during the time he operated the bar. The
district court, sitting without a jury, denied count 1 of the counterclaim and permitted the
Wattses to withdraw count 2. Apparently in an attempt to leave the parties where it found
them, the court denied Lyerla's claim, and this appeal resulted.
1. The Facts.
By written contract of sale dated November 1, 1968, the Wattses sold to Lyerla and Bert
Larson
2
all the stock of the R. & B. Corporation for the total sum of $29,000, payable as
follows: (a) $8,000 on the signing of the contract; (b) $5,000 on or before February 1, 1969;
and (c) the balance at the rate of $350 per month, to be paid on the first day of every month,
commencing March 1, 1969, until paid in full. In the agreement, the only restriction on the
transfer of the stock was that the stock would be held in escrow and delivered to Lyerla after
all the terms of the agreement had been met.
3
The contract provided, however, that Lyerla
was to have full control and management of the corporation and its properties while the
stock was in escrow.4 Lyerla took possession of the bar and operated it continuously until
he was ousted by Mr.
____________________

1
RULE 75. RECORD ON APPEAL
. . .
(n) Appeals When No Stenographic Report Was Made. In the event no stenographic report of the evidence
or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or
proceedings from the best available means, including his recollection, for use instead of a stenographic
transcript. This statement shall be served on the respondent who may serve objections or propose amendments
thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed
amendments, shall be submitted to the district court for settlement and approval and as settled and approved
shall be included by the clerk of the court in the record on appeal.

2
Lyerla joined Larson as a party defendant when he commenced the action.

3
Excerpt from November 1, 1968, contract of sale:
IT IS FURTHER AGREED that all of the stock of R. & B. Corporation, endorsed in blank by the Seller
[David W. Watts and Elsie J.
The contract provided, however, that Lyerla was to have full control and management of
the corporation and its properties while the stock was in escrow.
4
Lyerla took possession of
the bar and operated it continuously until he was ousted by Mr. Watts on April 3, 1969.
Lyerla and Larson each paid one-half of the $8,000 initial down payment. Before February
1, 1969, Lyerla also paid $2,100 on the February installment, but Larson paid nothing after
the initial down payment. Lyerla also paid the Wattses 3 months' interest (for November and
December 1968 and January 1969) at the rate of $122 per month. On February 1, 1969,
Lyerla was $400 delinquent in the sums he then owed the Wattses under the contract.
However, in March 1969 he paid the installment due that month, which the Wattses accepted
without protest.
On April 3, 1969, Lyerla left $350 in the bar for the Wattses, plus $100 for pay of the
bartender. That evening, without notice to Lyerla, Mr. Watts appeared and, joined by Larson,
took the moneys in the till, including the $350 Lyerla had left for him and the bartender's
$100, plus the inventory. Watts then took over the operation of the bar and restaurant,
assisted by Larson.
Lyerla demanded return of the moneys he had paid under the contract. The demand was
refused, and this action resulted.
2. The Restitution.
[Headnotes 1, 2]
The Wattses claim that Lyerla by his default has forfeited all rights under the contract of
sale and that he is not entitled to the return of any of the moneys received by them. We do not
agree. The contract contained no forfeiture provision, nor any provision for liquidated
damage in case of default. The only restriction in the sale agreement was that the stock would
remain in escrow until Buyer has fully complied with all of the terms of this agreement."
____________________
Watts], together with the Minute Book, franchise, and any other paraphernalia establishing the legal status of
said corporation, is to be placed in escrow with _______________________________, in Reno, Nevada, with
appropriate instructions that same be held by said company until Buyer [Jerry D. Lyerla and Bert Larson] has
fully complied with all of the terms of this agreement, at which time said stock, Minute Book, seal and all other
paraphernalia is to be delivered by Seller to Buyer.

4
Excerpt from November 1, 1968, contract of sale:
IT IS FURTHER AGREED that while the stock of R. & B. Corporation remains in escrow, as aforesaid,
Buyer shall have control and complete management of the corporation and its assets, liabilities and business.
the terms of this agreement. The contract in the next paragraph provided: [W]hile the stock
. . . remains in escrow, . . . Buyer shall have control and complete management of the
corporation and its assets, liabilities and business. The Wattses made no attempt to recover
the stock until December 1969, eight months after they ousted Lyerla. We believe that, under
the factual posture of this case, Lyerla is entitled to recover the sums he paid on the purchase
of the stock. The Wattses, by their conduct, rescinded the contract and also gained forfeiture
of the consideration that Lyerla had paid toward the total purchase price. As the court said in
Johnston v. Gilbert, 382 P.2d 87, 89 (Ore. 1963):
. . . Forfeiture and rescission are incompatiblethey will not mix. The concomitant of
rescission is restitution, not forfeiture. Where there has been, as here, rescission by conduct of
the parties, a purchaser is entitled to restitution of the amount paid on the purchase price less
the reasonable rental value of the premises while he has had possession.
This court held in Stanley v. Limberys, 74 Nev. 109, 112, 323 P.2d 925, 927 (1958):
The right to rescission, however, is not an unconditional one. Under the maxim that he
who seeks equity must do equity' the plaintiff, seeking rescission, must restore the defendant
to the position he occupied before the transaction in question. Such restoration entails the
restoration of all benefits and profits which the plaintiff may have realized from the
transaction.
[Headnote 3]
The Wattses claim on appeal that they did incur damages during Lyerla's tenure that
should be set off against his claim. There is nothing in the statement of the evidence before us
to indicate that the Wattses suffered damages. Counsel for the Wattses argues that the trial
judge, in what may be interpreted as an attempt to leave the parties where he found them,
weighed and considered Mr. Watts's answers to the interrogatories, which had appended
thereto copies of certain checks of R. & B. Corporation allegedly covering expenses incurred
by Lyerla when he had possession of the bar. However, the interrogatories were never
received in evidence and may not be considered.
5
Additionally, with permission of the court,
the Wattses through their counsel withdrew count 2 of their counterclaim.
____________________

5
Excerpt from oral argument before this court on January 11, 1971:
Question by the Court: You filed no additional statement [of the evidence] pursuant to Rule 75(n)?
Answer by Mr. Robert E. Rose, counsel for the Wattses: No, I
Wattses through their counsel withdrew count 2 of their counterclaim.
Since the record before us is absent any evidence to support a setoff in damages suffered
by the Wattses as a result of Lyerla's operation of the bar, we must reverse the order of the
district court and remand the case with instructions to enter judgment in favor of Lyerla for
$6,900 plus interest at 7 percent per annum on said sum from April 3, 1969, and with costs
and such attorney's fees as the district court may allow, if any. NRS 18.010.
It is so ordered.
____________________
filed none, your Honor, in the record, because I thought the . . . statement in the answers to our interrogatories,
which I feel the district court could consider, adequately set forth those damages.
Q: How does the court consider them if they are not offered into evidence during the course of trial? I really
don't know. It's like taking a deposition and keeping it in the office. It has to be used some way; doesn't it?
A: I would simply say a district court sitting without a jury can consider all matters in the record, whether or
not introduced into evidence.
Q: Do you have any simple authority to that effect?
A: Not at this time.
____________
87 Nev. 63, 63 (1971) Maiorca V. Sheriff
SAM MAIORCA, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 6383
February 24, 1971 482 P.2d 312
Appeal from denial of writ of habeas corpus by Eighth Judicial District Court, Clark
County; William P. Compton, Judge.
The district court denied writ, and petitioner appealed. The Supreme Court held that where
petitioner had initially been admitted to bail, no demand for trial or for early trial date had
been made, case had been continued on defendant's motion to remit and to file a petition to be
treated as a juvenile, no objection to delay in bringing to trial had been made until after 60
days from date of indictment, defendant was not denied a speedy trial for failure to bring him
on to trial within 60 days after indictment, notwithstanding that parole officer's report had
been filed within 60-day period.
Affirmed.
Pomeranz, Cochrane, Lehman & Nelson, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner,
Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where petitioner had initially been admitted to bail, no demand for trial or for early trial date had been
made, case had been continued on defendant's motion to remit and to file a petition to be treated as a
juvenile, no objection to delay in bringing to trial had been made until after 60 days from date of
indictment, defendant was not denied a speedy trial for failure to bring him on to trial within 60 days after
indictment, notwithstanding that parole officer's report had been filed within 60-day period. NRS
178.556.
OPINION
Per Curiam:
The appellant was indicted on March 5, 1970, by the Clark County Grand Jury. At his
arraignment on March 9, 1970, he moved for and was granted a continuance to March 13,
1970, in order to permit him to file a petition to be treated as a juvenile.
1
On March 11,
1970, that petition was filed. It concluded with a request [t]hat the proceedings in this matter
be arrested until the time of the submission of the report of the Juvenile Department. The
court referred the matter to the Juvenile Department for investigation, and an order was
entered arresting further proceedings until the time of the submission of the report. On March
13, 1970, the appellant came up for arraignment again, and without objection the matter was
ordered off the calendar until such time as the report has been received from the Juvenile
Department. The parole officer's report was filed on April 3, 1970.
2

The record does not reflect how the case was put back on the court's calendar, but on May
21, 1970, there was a hearing to consider the parole officer's report, at which time counsel for
the appellant pointed out to the court that he had never waived the "60-day rule.
____________________

1
At the time of the arraignment, the appellant was 18 years of age.

2
There is no notation on the report that copies were served on anyone, nor is there any indication in the
record that notice of the filing of the report was given.
waived the 60-day rule.
3
Subsequently, a writ of habeas corpus was sought for failure of
the State to afford the appellant a speedy trial. The writ was denied, and this is an appeal from
its denial.
Although the record bears out the appellant's contention that he never explicitly waived the
60-day rule, there is nothing in the record to indicate that the time set for the trial was of
any import to him until after the 60 days had expired. He had been admitted to bail initially,
and bail had been reduced on March 9, 1970. No demand for trial or for an early trial date
was ever made. No objection to the delay was made until after the 60-day period had run.
Under such circumstances, the appellant's charge that his right to a speedy trial had been
denied him is not persuasive. Only because the parole officer's report was filed within the
60-day time limitation of NRS 178.556 does the appellant's argument have any relevance at
all. If, for example, that report had not been filed until May 5, 1970, the 60 days would have
expired without a trial, and in that circumstance the delay would have been upon the
appellant's own motion. It is not the function of the law to permit an accused to gamble with
his rights and, if he wins, to afford him relief that he would not have been afforded if he had
lost.
Since the delay in this case was upon appellant's own motion, and since he was free on bail
the entire time, the State cannot be charged with responsibility for the delay, and the district
court did not err in denying habeas corpus. Harris v. State, 86 Nev. 197, 466 P.2d 850 (1970);
Thompson v. State, 86 Nev. 682, 475 P.2d 96 (1970).
Affirmed.
____________________

3
NRS 178.556: . . . [I]f a defendant whose trial has not been postponed upon his application is not brought
to trial within 60 days after the finding of the indictment or filing of the information, the court may dismiss the
indictment, information or complaint.
____________
87 Nev. 65, 65 (1971) In re Miller
In the Matter of E. R. MILLER, Jr.,
Attorney at Law.
No. 6069
February 25, 1971 482 P.2d 326
Petition for review of the recommendations of the Board of Governors of the State Bar of
Nevada for suspension of the accused attorney for professional misconduct.
87 Nev. 65, 66 (1971) In re Miller
Disciplinary proceedings. The Supreme Court held that surreptitious offer to administrator
of an estate of $2,000 outside probate proceedings to induce administrator's consent to sale of
probate assets to offeror's client violated Supreme Court Rule requiring lawyer's conduct
before court and other lawyers to be at all times characterized by honesty, candor and fairness
and rule precluding rendering of any service for client which would corrupt any person or
persons exercising a public or private trust, and warranted disciplinary action.
Petitioner suspended from practicing law for three years.
Sidney Robinson, of Reno, for Petitioner.
Thomas A. Cooke, President; Robert R. Herz, Executive Secretary, State Bar of Nevada;
Thomas R. C. Wilson, II, Special Prosecutor, of Reno, for Respondent.
1. Executors and Administrators.
An administrator of an estate is merely an officer of the court appointed to carry into effect decisions and
decrees made by district court and is not a judicial officer.
2. Bribery.
Estate administrator not being a judicial officer, could not be bribed in such capacity by petitioner who
could not therefore be guilty of violation of statute making bribing a judicial officer a felony. NRS
199.010.
3. Attorney and Client.
Surreptitious offer to administrator of an estate of $2,000 outside probate proceedings to induce
administrator's consent to sale of probate assets to offeror's client violated Supreme Court Rule requiring
lawyer's conduct before court and other lawyers to be at all times characterized by honesty, candor and
fairness and rule precluding rendering of any service for client which would corrupt any person or persons
exercising a public or private trust, and warranted disciplinary action. SCR 198, 204.
OPINION
Per Curiam:
On May 15, 1969, a hearing was held before a quorum of the local administrative
committee of district No. 2 of the State Bar of Nevada, to determine whether or not E. R.
Miller, Jr., an attorney at law, the petitioner herein, had violated certain rules of this court and
the laws of the state. Both the petitioner and the State Bar of Nevada were represented by
counsel.
Evidence introduced at the hearing revealed that the petitioner, in his capacity as an
attorney at law, was employed by Joe S.
87 Nev. 65, 67 (1971) In re Miller
Joe S. Hobson to submit a written bid to Michael Kapetan, administrator of the Estate of
Emanole Kapetan, deceased, in the amount of $12,000 for the Silver Dollar Club, a bar
located in Ely, Nevada.
The attorney for the administrator contacted Miller prior to the confirmation of the sale of
the Silver Dollar and advised him that the administrator was opposed to the sale of the
premises because he personally asserted an interest in some of the equipment located at the
bar, and because the offer of $12,000 was insufficient. On the morning of March 14, 1967,
Miller met the administrator and his attorney on the courthouse stairs and while ascending the
stairs offered the administrator $2,000 under the table if he would agree to the sale of the
bar to Hobson. This offer was again made to the administrator in the presence of George
Pavalakis, in the law library or jury room, before they entered the courtroom. At the
confirmation hearing, held that same day, Miller raised Hobson's bid to $13,000, but he never
revealed the $2,000 under the table offer to the district court or to the attorney who had
previously been appointed to represent the incompetent widow of Emanole Kapetan. The
record indicates that the administrator, in open court, did object to the $12,000 offer but gave
approval of the $13,000 offer as did the attorney for the incompetent widow.
On the afternoon of March 14, 1967, Jimmy Pavalakis contacted Kapetan and his attorney,
as well as Miller, and made a verbal offer to purchase the Silver Dollar Club for $16,000.
During that same afternoon there were several contacts made between the administrator
and his attorney and Miller. The administrator was pressing to set aside the sale to Hobson.
There was also a discussion of the offer by Jimmy Pavalakis to purchase the Silver Dollar
Club from either the Kapetan estate or from Hobson for $16,000.
The attorney for the administrator prepared a motion to set aside the sale and Miller
obtained the signature of the district court judge upon a contempt citation against the
administrator for his failure to execute the deed to the Silver Dollar to Hobson. This citation
was not served on the administrator but he had knowledge of it.
Later that afternoon the petitioner paid to Mike Kapetan the $2,000 in $20 bills and
cautioned him If anybody should say anything, just tell them it is paid for your good will.
Kapetan then executed the administrator's deed conveying the Silver Dollar to Joe Hobson.
On July 25, 1968, the attorney for the incompetent widow moved to set aside the sale of
the Silver Dollar upon the basis of fraud.
87 Nev. 65, 68 (1971) In re Miller
of fraud. On August 18, 1968, after a hearing, the district judge set aside the sale to Hobson
and referred the question of Miller's conduct to the local administrative committee for district
No. 2 of the State Bar of Nevada.
Based on the evidence which it received, the administrative committee found that Miller
had breached the code of professional ethics and Supreme Court Rules 198 and 204, and that
he was guilty of bribing a judicial officer, a felony, and recommended to the board of
governors of the State Bar of Nevada that: (1) Miller be suspended for not less than three
years; (2) be assessed costs of proceedings; and (3) be given a public reprimand.
The board of governors sustained the committee's findings of fact except the finding that
Miller was guilty of bribing a judicial officer. As to that charge, the board found that there
was insufficient evidence to support it against the petitioner. Nonetheless, the board adopted
the committee's recommendation for disciplinary measures against Miller.
Miller contends that the entertainment by the district court of the motion to vacate and
rescind the sale constituted error prejudicial to him; that all proceedings pursuant to that
motion were void; that the transcript of proceedings held in connection with that motion was
presented to the local administrative committee No. 2 and constituted evidence which could
not have been, and should not have been, properly considered by the committee; that the
findings of the district court that the sum of $2,000 was paid by him under the table was
prejudicial and detrimental and contrary to the facts; and that no valid order could have been
entered upon the motion to vacate and rescind the sale by the court; and that the only purpose
for holding the hearing was to lay the foundation for charges of unprofessional conduct
against him. Furthermore, he contends that because the board of governors absolved him
from the charge of bribing a judicial officer, that a suspension from the practice of law for a
period of three (3) years is unjustified and excessively harsh.
It is the obligation of this court, in reviewing a case of this nature, to examine the entire
record anew to determine whether any charge meriting discipline has been proven. In such a
review we are not bound by the findings or recommendations of the local administrative
committee, nor by the findings or recommendations by the board of governors. In re Scott, 53
Nev. 24, 292 P. 291 (1930); ln re Wright, 68 Nev. 324, 232 P.2d 398 (1951). On the other
hand the findings and the recommendations of the committee and the board are persuasive,
and a petitioner must affirmatively reveal wherein the findings and recommendations of
the committee and board are erroneous and unlawful.
87 Nev. 65, 69 (1971) In re Miller
and a petitioner must affirmatively reveal wherein the findings and recommendations of the
committee and board are erroneous and unlawful. In re Wright, supra.
[Headnote 1]
The board of governors specifically found that there was insufficient evidence to establish
that Miller was guilty of a violation of NRS 199.010, which makes the bribing of a judicial
officer a felony. We reach the same result but for a different reason. An administrator of an
estate is merely an officer of the court appointed to carry into effect the decisions and decrees
made by the district court and is not a judicial officer. Cf. Burnside v. Bristol County Board
of Retirement, 226 N.E.2d 234 (Mass. 1967).
[Headnote 2]
A judicial officer has powers confided in him to be exercised according to his discretion
and does not act in his official capacity at his peril. Davis v. Burris, 75 P.2d 689 (Ariz. 1938).
He is an individual who determines whether a law has been violated, adjudges persons guilty
and has the power to inflict penalties for violation of laws. Furthermore he has the power to
determine causes between parties. Cleveland C. C. & St. L. R. Co. v. People, 72 N.E. 725 (Ill.
1904); Hitt v. State, 181 So. 331 (Miss. 1938). An administrator of an estate possesses none
of the characteristics or powers of a judicial officer. Kapetan, not being a judicial officer,
could not be bribed in that capacity by Miller. Therefore, Miller could not be guilty of a
violation of NRS 199.010.
Here our primary concern is whether the petitioner violated the rules of this court, and if so
whether the recommendations for disciplinary action should be imposed against him.
We are not concerned with whether the motion to set aside the sale of the Silver Dollar
was timely, or whether the proceedings had in relation to that motion were void. The
petitioner's entire smoke screen attack upon the propriety of the probate proceedings in
district court is in no way relevant to these disciplinary proceedings. We are only concerned
with Miller's conduct on March 14, 1967, and any subsequent acts by him relevant to that
conduct.
[Headnote 3]
We find that Miller surreptitiously offered Kapetan $2,000 outside the probate proceedings
in payment for his consent to the sale of the Silver Dollar, and in order to obtain Kapetan's
signature to the deed of the premises he paid Kapetan the $2,000 in denominations of $20,
and cautioned him "if anybody should say anything, just tell them it is for your good will."
87 Nev. 65, 70 (1971) In re Miller
$2,000 in denominations of $20, and cautioned him if anybody should say anything, just tell
them it is for your good will.
It is to be noted that at the time he received the $2,000, Kapetan was represented by
counsel, and Miller never gave him any advice about the future disposition of the money.
Kapetan was free to seek his attorney's advice in regards to its ultimate disposition. However,
the entire atmosphere created by Miller's offer to pay under the table and his warnings to
Kapetan not to reveal the true purpose of the $2,000, could only have led Kapetan or any one
else in his position to understand and believe that he should secretly keep the money for
himself, and should not reveal its existence to the district court or the attorney representing
the incompetent widow, nor pay it into the probate estate.
In this matter we are required to view Miller in the light of his position as an attorney at
law. He either knew, or in his capacity should have known, that any additional money paid
for the Silver Dollar was to be paid through the court into the Kapetan estate. He knew, or
should have known, to do otherwise was a fraud upon the court. The surreptitious manner in
which the transaction was conducted indicates Miller's knowledge of wrongdoing and his
intent to defraud the estate.
Practicing deception upon a court by fraudulent devices is gross misconduct in the
perversion or obstruction of justice and warrants stern disciplinary action. In re Wright, 69
Nev. 259, 248 P.2d 1080 (1952). By his fraudulent handling of the $2,000, Miller practiced a
deception upon the district court, even though the court was not aware of that deception for
more than a year. That conduct was indeed a perversion and obstruction of justice and a
breach of professional ethics that warrants severe disciplinary action against the petitioner.
Furthermore, Miller is specifically found to have violated Supreme Court Rules 198 and
204. Supreme Court Rule 198
1
requires that the conduct of a lawyer before a court and with
other lawyers should at all times be characterized by honesty, candor and fairness.
____________________

1
Supreme Court Rule 198:
1. The conduct of the lawyer before the court and with other lawyers should at all times be characterized by
honesty, candor and fairness.
2. A lawyer should never knowingly misquote the contents of a paper, the testimony of a witness, the
language or the argument of opposing counsel, or the language of a decision or a textbook. He should not cite
authorities he knows have been vacated, overruled or distinguished, or cite a statute that has been repealed,
without making a full disclosure to the court and counsel. He should not in argument assert as a fact that which
has not been proved, or, in those jurisdictions in
87 Nev. 65, 71 (1971) In re Miller
other lawyers should at all times be characterized by honesty, candor and fairness.
Not on March 14, 1967, nor any time thereafter did Miller display honesty, candor or
fairness toward the judge of the district court. On the very day that this entire transaction took
place Miller went to the judge and obtained his signature on a contempt citation against
Kapetan when the administrator was dragging his feet in the execution of the deed, but
never once did he mention the $2,000 deal. Certainly he displayed no candor or fairness
toward the attorney who was appointed to represent Kapetan's incompetent widow.
Supreme Court Rule 204,
2
among other prohibitions, precludes a lawyer from rendering
any service for a client which would corrupt any person or persons exercising a public or
private trust, and provides that any lawyer rendering such improper service invites and
merits stern and just condemnation.
____________________
which a side has the opening and closing arguments, mislead his opponent by concealing or withholding
positions in his opening argument upon which his side intends to rely.
3. A lawyer should be extraordinarily careful to be fair, accurate and comprehensive in all ex parte
presentations and in drawing or otherwise procuring affidavits.
4. A lawyer should never attempt to place before the court, jury or public evidence which he knows is clearly
inadmissible, nor should he make any remarks or statements which are intended improperly to influence the
outcome of any case.
5. A lawyer should not propose a stipulation in the jury's presence unless he knows or has any reason to
believe the opposing lawyer will accept it.
6. A lawyer should never employ dilatory tactics of any kind to procure more fees.
7. A lawyer should never file a pleading or any other document which he knows to be false in whole or in
part or which is intended only for delay.

2
Supreme Court Rule 204:
No client, corporate or individual, however powerful, nor any cause, civil or political, however important, is
entitled to receive, nor should any lawyer render, any service or advice involving disloyalty to the law whose
ministers lawyers are, or disrespect of the judicial office, which lawyers are bound to uphold, or corruption of
any person or persons exercising a public office or private trust, or deception or betrayal of the public. When
rendering any such improper service or advice the lawyer invites and merits stern and just condemnation.
Correspondingly, he advances the honor of his profession and the best interests of his client when he renders
service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest
principles of moral law. He must also observe and advise his client to observe the statute law, though until a
statute has been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its
validity and as to what he conscientiously believes to be its just meaning and extent. But above all a lawyer will
find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man
and as a patriotic and loyal citizen.
87 Nev. 65, 72 (1971) In re Miller
would corrupt any person or persons exercising a public or private trust, and provides that any
lawyer rendering such improper service invites and merits stern and just condemnation.
Miller was in direct violation of this rule. Purportedly, on behalf of his client, Hobson,
3
he
did in fact corrupt Michael Kapetan who was at that time exercising a private trust.
Aware that a higher degree of proof is required in a matter of this nature to determine
questions of fact than is required to determine questions of fact in an ordinary civil action or
proceedings, we find that the evidence presented here more than meets that test. In re Wright,
supra; Copren v. State Bar, 64 Nev. 364, 183 P.2d 833 (1947). The findings and conclusions
of the board of governors, with the exception above noted, are therefore affirmed.
We must now look to the board's recommendations. It is noted that while it struck, for lack
of evidence, the administrative committee's finding that Miller had committed a felony, it
nevertheless accepted in its entirety and without explanation, the committee's disciplinary
recommendation.
We find nothing of mitigation in the record. Even though the most serious charge against
the petitioner was set aside and we have approved of that action by the board of governors,
we nevertheless believe that the recommendation of three (3) years' suspension is appropriate.
The petitioner has previously been suspended from the practice of law. This court in In re
Wright, supra, in ordering the disbarment of Wright, took notice of the fact that it was not his
first offense and that he had previously been suspended from the practice of law. The
previous poor record and repeated misconduct of an attorney may be considered in
determining the severity of the penalty to be assessed in a disciplinary proceeding. Clark v.
State Bar, 246 P.2d 1 (Cal. 1952); Townsend v. State Bar of California, 197 P.2d 326 (Cal.
1948); The Florida Bar v. Swidler, 173 So.2d 705 (Fla. 1965); In re McCallum, 64 N.E.2d
310 (Ill. 1945); In re Johnson, 228 A.2d 343 (N.J. 1967); In re Schner, 173 N.Y.S.2d 649
(1958). See also In re Virciglio, 218 N.Y.S.2d 1(1961).
It is ordered that the petitioner be: (1) suspended from the practice of law for a period of
three {3) years from and after the filing of this opinion {Supreme Court Rule No.
____________________

3
Hobson was unaware of Miller's conduct on March 14, 1967. Miller was really acting on behalf of a Mrs.
Pilkington who furnished the $2,000 and owned a bar adjacent to the Silver Dollar. The Pilkingtons were
anxious to have the sale to Hobson consummated with the anticipation that Hobson would also purchase their
property, or in the alternative that they would be able to purchase the Silver Dollar from Hobson.
87 Nev. 65, 73 (1971) In re Miller
practice of law for a period of three (3) years from and after the filing of this opinion
(Supreme Court Rule No. 112); (2) that he be given a public reprimand, the same to be
published in the Nevada State Bar Journal; and (3) that he be assessed the costs of the
transcript of his hearing before the local administrative committee for district No. 2 in the
sum of $394.50; for disbursements and expenses of the State Bar of Nevada in the sum of
$426.19, together with the sum of $1,700 as counsel fees for Thomas R. C. Wilson, II, special
prosecutor; the same to be paid forthwith into the treasury of the State Bar of Nevada, and to
bear interest at the legal rate from the date of this opinion. The payment in full of the assessed
costs, fees and interest shall be made prior to and as a condition of reinstatement should
reinstatement be requested.
____________
87 Nev. 73, 73 (1971) Sun Realty v. Hughes Tool Co.
SUN REALTY, a Nevada Corporation, Appellant, v. HUGHES
TOOL COMPANY, a Delaware Corporation, Respondent.
No. 6307
February 25, 1971 482 P.2d 100
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
Affirmed with costs to respondent.
Stanley W. Pierce, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
OPINION
Per Curiam:
This appeal is from a summary judgment for Hughes Tool and against Sun Realty in the
latter's action to recover damages resulting from an alleged conspiracy to deny Sun Realty a
commission for inducing the sale of the Landmark Tower Hotel in Las Vegas. Hughes Tool
purchased the hotel from Plaza Tower, Inc., who also was named a party defendant and
against whom the action still is pending.
1
We have examined all papers before the court on
the motion for summary judgment and can find nothing to suggest that a genuine issue of
material fact concerning Sun Realty's claim for relief is present.
____________________

1
Although the action against Plaza Tower has not been decided, this appeal is permissible since the district
court made the express determination required by Rule 54(b).
87 Nev. 73, 74 (1971) Sun Realty v. Hughes Tool Co.
all papers before the court on the motion for summary judgment and can find nothing to
suggest that a genuine issue of material fact concerning Sun Realty's claim for relief is
present.
Affirmed with costs to respondent.
____________
87 Nev. 74, 74 (1971) Ewing v. Sargent
J. A. EWING, Doing Business as EWING MANUFACTURlNG CO., Appellant, v.
GEORGE SARGENT, SARGENT SHOWCASE AND FIXTURE CO., INC., Respondents.
No. 6304
February 26, 1971 482 P.2d 819
Appeal from a judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Manufacturer's suit for compensation beyond payment for his own goods. A judgment of
the district court denied recovery, and the manufacturer appealed. The Supreme Court,
Gunderson, J., held that evidence permitted a finding that there was no meeting of the minds
between the parties as to compensation claimed to be payable to the manufacturer in
connection with a contract for the furnishing of goods including goods to be furnished by the
manufacturer, and that the manufacturer failed to prove his case by a preponderance of
evidence.
Affirmed.
Gray, Horton and Hill, of Reno, for Appellant.
Goldwater, Hill, Mortimer and Rose, of Reno, for Respondents.
1. Evidence.
In determining preponderance of evidence in manufacturer's suit for compensation beyond payment for
his own goods, trial court properly considered that, when manufacturer in negotiating contract for purchase
of goods including those which he himself was to furnish suggested additional amount to compensate him,
no reply was shown; failure to show reply permitted inference that testimony as to reply would have been
adverse. NRS 52.070, subd. 5.
2. Trial; Witnesses.
It is prerogative of trier of fact to evaluate credibility of any witness's testimony and to reject it, at least
where testimony of witness is contradicted, impeached, or inherently incredible, or conflicts with other
evidence or inferences arising from evidence.
3. Evidence.
Where burden of going forward with rebuttal evidence has not been sustained, credible, uncontradicted
testimony may not be arbitrarily rejected.
4. Evidence.
That witness who gave allegedly supporting testimony was not party to action did not require that his
testimony be accepted.
5. Contracts.
In manufacturer's suit for compensation beyond payment for his own goods, evidence permitted finding
that there was no meeting of minds between parties with respect to compensation allegedly payable to
manufacturer in connection with contract for furnishing of goods including goods to be furnished by
manufacturer, and that manufacturer failed to prove his case by preponderance of evidence.
6. Work and Labor.
In manufacturer's suit for compensation beyond payment for his own goods, record which failed to show
that goods and services produced by manufacturer were of greater value than sums he received failed to
permit recovery on theory of quantum meruit, especially in absence of any motion to reopen case.
OPINION
Appellant J. A. Ewing, a Las Vegas manufacturer of gaming accessories, seeks reversal of
a judgment entered after a nonjury trial, denying him recovery of $13,276.12 allegedly due
from respondent Sargent Showcase and Fixture Co., Inc., a Reno-based manufacturer of
gaming furniture and fixtures, and from respondent George Sargent, the corporation's
president. We affirm the judgment, having determined the lower court did not err as Ewing
contends, either in reaching a decision for respondents despite the testimony of Ewing's
witness Donahue, or in declining to consider the theory of quantum meruit which Ewing first
raised by post-trial brief.
Since the very early fifties, to complete orders generated in the course of its business, the
Sargent company has purchased from Ewing such accessories as trays, locking covers for
twenty-one tables, crap racks, and similar items, paying for them at prices discounted
25% from those stated in Ewing's catalogs. In early July, 1967, because a furniture
manufacturer with design expertise was necessary to the transaction, Ewing telephoned
Sargent to involve him in seeking to outfit a new casino at El Conquistador Hotel, San Juan,
Puerto Rico. Each at his own expense, they flew there together, in company with Ewing's
friend Donahue, the only witness to testify at the trial other than Ewing and Sargent.
testify at the trial other than Ewing and Sargent. Hotel representatives supplied them with a
copy of a proposal from B. C. Wills & Company, a competitor of the Sargent company,
which offered a list of furniture, fixtures, and accessories to outfit the casino at a price of
some $32,000. After tentative discussions with hotel representatives concerning design of
furniture and fixtures to be manufactured by Sargent, he returned to Reno to begin design
work, while Ewing sought other outlets for his accessories in neighboring islands.
The hotel company ultimately approved furniture designs prepared by Sargent; then, it sent
the Sargent company a purchase order for some $64,000 in merchandise, couched in the same
general terms as the proposal of B. C. Wills & Company, encompassing accessories
apparently to be obtained by Sargent from Ewing in the course of filling the order. The parties
proceeded accordingly: the Sargent company issued purchase orders to Ewing; Ewing
supplied accessories for use with the Sargent company's furniture; the hotel company made
payments to the Sargent company, which made remittances to Ewing. When disputes arose
concerning timeliness and quality of Ewing's deliveries, Ewing supplied some items directly
to the hotel, and at Sargent's request the hotel company made final payment for accessories
directly to Ewing.
Ewing thereafter commenced this action, to obtain something beyond payment for his own
goods; how much more, and on what basis, has never been made clear. Ewing alleged in his
Complaint that Sargent agreed to pay twenty-five percent of the total price of all goods and
services supplied to the hotel; yet, he seemed to say at pre-trial deposition that his agreed
compensation was to have been a percentage of the price proposed by B. C. Wills &
Company; at trial, he testified to still another formula. While the trial judge's Opinion reflects
that he was especially impressed by these apparent inconsistencies, Ewing's testimony also
vacillated on other matters, and was at odds with aspects of the parties' course of dealing.
Sargent's testimony was clear and unequivocal: he had only agreed to pay Ewing the price of
goods obtained from him; if Ewing had ever asked for more, he had not agreed to pay it. The
trial court found that there was no meeting of the minds between the parties, and that the
plaintiff has failed to prove his case by a preponderance of the evidence.
Appellant contends that the lower court committed error in applying the preponderance of
evidence rule where Appellant's interpretation of the oral contract between Appellant and
Respondent was supported by the testimony of a witness, Mr.
Donahue, who was not a party to the contract. In regard to this claim of error, appellant
quotes testimony by Donahue that in Puerto Rico he heard Ewing indicate to Sargent a desire
that Sargent use B. C. Wills & Company's price proposal as the basis of computing his own,
by adding an amount to compensate Ewing.
1
Ewing apparently thinks the trial court was
constrained to rule in his favor, because his position was thus supported by a disinterested
witness. We disagree, for several reasons.
First, Donahue's testimony does not truly support the position taken by Ewing at trial;
for at trial Ewing asserted that the Wills price proposal was not the basis for computing
Ewing's compensation and arriving at Sargent's bid, although in a pre-trial deposition he had
testified that it was.
2

[Headnote 1]
Second, as was proper, the trial judge weighed Donahue's testimony in light of the fact that
Ewing's counsel elicited no testimony from Donahue regarding a response to Ewing's
suggestions, stating in his Opinion: Peculiarly enough, there is no testimony as to any
response by Mr. Sargent. In Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473
(1968), where a plaintiff failed to produce certain documentary evidence that might have
corroborated his own testimony, we held that this omission raised the presumption of NRS
52.070(5) that evidence willfully suppressed would be adverse if produced, and could be
relied upon to sustain a judgment adverse to the plaintiff even though the plaintiff's testimony
was not directly controverted. Thus viewed, if Donahue's testimony aids anyone, it supports
respondent Sargent, not appellant Ewing.
[Headnote 2]
Third, and most important, under settled legal principles, Donahue's testimony would not
necessitate a judgment in favor of Ewing, even if it constituted an unequivocal assertion
that Sargent had assented to Ewing's ultimate version of the supposed agreement.
____________________

1
And in this conversation, as I recall, Mr. Ewing told Mr. Sargent to be sure that when he made up his
prices, to add on an extra 25 percent for Ewing's time and effort and work. I remember this conversation going
on a couple of times. And Mr. Ewingthey had this contract of B. C. Wills in front of them and they were
discussing prices and thatand Mr. Ewing brought up to be sure to add his 25 percent on, when they were
working on this thing.

2
At trial, with reference to the alleged agreement, Ewing was asked on cross-examination if the agreement
was that the parties would take B. C. Wills' figure and add 25 percent. Unequivocally, he answered: No. In
his pre-trial deposition, Ewing was asked if the arrangement was to add 25 percent to the bid submitted by B. C.
Wills. He categorically stated: That's right.
of Ewing, even if it constituted an unequivocal assertion that Sargent had assented to Ewing's
ultimate version of the supposed agreement. Precedents of this court establish beyond cavil
that it is the prerogative of the trier of fact to evaluate the credibility of any witness's
testimony, and to reject it, at least where the testimony of the witness is contradicted as in the
instant case, is impeached, is inherently incredible, or conflicts with other evidence or
inferences arising from evidence. For example, see: Roberti v. Anderson, 27 Nev. 396, 76 P.
30 (1904), upholding a judgment against a plaintiff even though his contentions were
supported by witnesses not parties to the action, and stating that the testimony of a larger
number of witnesses to a different state of facts is no ground for reversal (27 Nev., at 403);
Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969), and Williams v. Lamb, 77 Nev. 233, 361
P.2d 946 (1961), upholding judgments in favor of defendants on conflicting evidence, even
though defendants had the affirmative burden of proving fraud; In re Duffill's Estate, 57 Nev.
224, 61 P.2d 985 (1936), holding that the trier of fact is not necessarily constrained to accept
uncontradicted testimony, but may consider any inherent improbabilities of the statements of
witnesses (57 Nev., at 231); In re Golding's Estate, 59 Nev. 201, 89 P.2d 1049 (1939),
holding that uncontradicted testimony may be disbelieved, when inconsistent with other
circumstances established by the evidence; and Douglas Spencer v. Las Vegas Sun, 84 Nev.
279, 439 P.2d 473 (1968), previously discussed in this Opinion, recognizing that while it may
not be disregarded arbitrarily, even uncontroverted testimony may be rejected in favor of a
legitimate inference or presumption arising from evidence of record. On the general
proposition that credibility and weight of testimony is for the trier of facts, see also: Carlson
v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Berto v. Wilson, 74 Nev. 128, 324 P.2d 843
(1958).
[Headnote 3]
In accord with our holdings, Dean Wigmore, in a section titled General Principle; One
Witness may Suffice; An Uncontradicted Witness need not be Believed, has stated that the
common law, rejecting rules based on numerical superiority, recognizes four general
principles:
(1) Credibility does not depend on numbers of witnesses. Therefore:
(2) In general, the testimony of a single witness, no matter what the issue or who the
person, may legally suffice as evidence upon which the jury may found a verdict.
(3) Conversely, the mere assertion of any witness does not of itself need to be believed,
even though he is unimpeached in any manner; because to require such belief would be to
give a quantitative and impersonal measure to testimony:
3

. . . . .
(4) As a corollary of the first proposition, all rules requiring two witnesses, or a
corroboration of one witness, are exceptions to the general principle. J. Wigmore, Evidence,
2034, at 259-263 (3rd ed. 1940).
[Headnotes 4, 5]
In summary, the law does not require that the testimony of a witness be believed, simply
because he is not a party to the action, although his testimony cannot be arbitrarily ignored.
Donahue's testimony was arguably inconsistent with the testimony of Ewing and with the
actions of the parties, discredited by a presumption arising from failure to inquire of him as to
Sargent's reactions to Ewing's suggestions, and to whatever extent it tended to prove an
agreement was contradicted by the testimony of Sargent. We find no error in the trial judge's
determination that Donahue's testimony did not sufficiently support Ewing's contentions.
Asserting that an agreement to pay additional compensation must be implied to prevent
respondents' unjust enrichment, Ewing further contends that the court should have allowed
recovery under our holdings in Bangle v. Holland Realty Inv. Co., 80 Nev. 331, 393 P.2d
138 (1964), Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468 (1962), Berrum v. Georgetta,
60 Nev. 1, 93 P.2d 525 (1939), Maitia v. Allied L. & L. S. Co., 49 Nev. 451, 248 P. 893
(1926), and Burgess v. Helm, 24 Nev. 242, 51 P. 1025 (1898). These authorities establish that
when an express agreement cannot be found or provisions for payment are uncertain, and
when a right to reasonable compensation is placed in issue by the pleadings or is litigated by
express or implied consent of the parties, a recovery in quantum meruit may be allowed if
necessary to prevent unjust enrichment.
____________________

3
In a footnote to this proposition, Dean Wigmore refers to a significant body of authority holding that an
uncontradicted or unimpeached witness must be believed as a loose and futile but not uncommon heresy,
maintainable only as a ground for directing a verdict for a proponent in accord with the principle that in certain
instances undisputed testimony may require a verdict simply because the proponent has adduced evidence
sufficient to throw upon his adversary the liability of adducing some evidence to the contrary. In such a case, if
this duty is not sustained the judge must determine as a matter of law that the burden of going forward has not
been carried, and may not arbitrarily reject credible, uncontradicted testimony. See, J. Wigmore, Evidence,
2495, at 306 (3rd ed. 1940); cf. Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473 (1968).
quantum meruit may be allowed if necessary to prevent unjust enrichment. They do not
establish that the quantum meruit theory could be applied to a case like the instant one, or that
if theoretically applicable the evidence warranted invoking it, or that the trial court was
constrained to grant recovery on this theory, which was raised for the first time by a post-trial
brief.
It has been said that where the reason for a rule stops, there stops the rule. With regard to
the applicability of quantum meruit to a case like the instant one, respondent suggests that
quantum meruit could not be applied because in the case at bar, there was an express written
agreement between the parties, as is evidenced by the purchase orders between George
Sargent and A. J. [sic] Ewing. Numerous authorities tend to support respondent's view that
an action does not lie on an implied contract where there exists between the parties an express
contract covering the same subject matter. See, for example: Rogers v. American President
Lines, Ltd., 291 F.2d 740 (9 Cir. 1961), holding an employee who had been paid his agreed
wages could not claim additional compensation in quantum meruit to prevent his employer's
supposed unjust enrichment; Keith v. Kottas, 172 P.2d 306 (Mont. 1946), holding that
services rendered by an employee are presumed compensated for by the stipulated wage, that
to overcome this presumption he must prove an express contract for additional compensation,
and that no implied contract can be posited in such a situation; Verdi v. Helper State Bank,
196 P. 225 (Utah 1921), holding that where a time certificate of deposit provided for interest
for six months only, a promise to pay interest on the deposit for a longer period could not be
implied; Ryan v. Nelson, 128 N.W.2d 592 (Neb. 1964), holding that where an express
contract governed the obligations of a tenant, an obligation to pay the reasonable rental value
of the premises could not be implied; Klebe v. United States, 263 U.S. 188, 44 S.Ct. 58, 68
L.Ed. 244 (1923), holding that where an express contract defined the parties' rights, that
contract governed, and no other contract could be implied. It is one thing to imply an
agreement to pay for valuable goods or services rendered in anticipation of compensation,
when an express agreement defining compensation cannot be found or is uncertain as to the
exact terms of payment; it is quite another thing to imply an agreement for payment beyond
that apparently bargained for by the parties.
[Headnote 6]
However, our decision in this case need not be grounded on the considerations just
discussed. Assuming that quantum meruit is a theoretically possible remedy in a case like the
instant one, the record before the lower court would not have justified such recovery in the
instant case, because we find no evidence that the goods and services provided by Ewing
were of a greater value than the sums he received. There is evidence that the Sargent
company derived approximately $6,000 profit performing its part of the project; however,
there is no evidence of Ewing's profit, no evidence of the parties' respective capital
investments, time expenditures, and like concerns, and no evidence of trade practices in
similar situations. To summarize, in the record before the lower court there was no more
evidence that appellant Ewing should have a portion of respondent's profit, absent an express
agreement, than that respondent should have a portion of appellant's.
We can find no error in the lower court refusing recovery on quantum meruit theory,
particularly in the absence of any motion to open the case.
Affirmed.
____________
87 Nev. 81, 81 (1971) State v. Austin
THE STATE OF NEVADA, Appellant, v.
CURTIS LEE AUSTIN, Respondent
No. 6309
February 26, 1971 482 P.2d 284
Appeal from an Order of the Eighth Judicial District Court, Clark County, granting a
motion to dismiss indictment; William P. Compton, Judge.
Criminal prosecution in which the district court granted motion of defendant to dismiss the
indictment and the State appealed. The Supreme Court held that where in the 129 days
between the time of the alleged offense and return of indictment a complaint in justice court
contemplating prosecution for same offense had been dismissed after repeated procedural
derelictions on part of State, the district court's dismissal of indictment on ground that
accused had been denied constitutional right to a speedy trial was fully justified in view of
State's conscious indifference to rules of procedure affecting defendant's rights.
right to a speedy trial was fully justified in view of State's conscious indifference to rules of
procedure affecting defendant's rights.
Affirmed.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney; Richard
D. Weisbart and Charles L. Garner, Deputy District Attorneys, Clark County, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondent.
1. Criminal Law.
Where magistrate had granted State continuances on three prior occasions when State's legal
representatives were unprepared to proceed, magistrate's subsequent dismissal of the complaint, after
denying a motion by State for a fourth continuance based on vague suggestions that more time was needed
because State could not locate certain physical evidence which should have been in its possession, was
fully justified.
2. Criminal Law.
Where in the 129 days between the time of the alleged offense and return of indictment a complaint in
justice court contemplating prosecution for same offense had been dismissed after repeated procedural
derelictions on part of State, the district court's dismissal of indictment on ground that accused had been
denied constitutional right to a speedy trial was fully justified in view of State's conscious indifference to
rules of procedure affecting defendant's rights. DCR 21.
OPINION
Per Curiam:
This appeal is from an Order granting a Motion to Dismiss Indictment, made by
respondent on the ground that his constitutional right to a speedy trial had been impaired by
unwarranted and unreasonable delay in prosecuting him for the offense in question. In the 129
days intervening between the time of the alleged offense and the return of the Indictment, a
complaint in justice court contemplating prosecution for the same offense had been
dismissed, after repeated procedural derelictions on the part of the State. The magistrate had
indulged the State with continuances on three prior occasions, when the State's legal
representatives were unprepared to proceed (by reason of such wanton omissions as failure to
subpoena witnesses), but the magistrate denied a fourth continuance and granted a motion to
dismiss the proceedings, when the State's representative vaguely suggested she "would
like more time" because the State was inexplicably "unable to locate" certain physical
evidence that should have been in its possession.
the State's representative vaguely suggested she would like more time because the State
was inexplicably unable to locate certain physical evidence that should have been in its
possession.
[Headnotes 1, 2]
The magistrate's dismissal of these previous justice court proceedings was fully justified, if
not compelled, by our determination in Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), that
good cause for continuance of a criminal proceeding in the justice's court must be
demonstrated by affidavit, as under DCR 21. The district court's subsequent dismissal of the
Indictment was fully justified, if not compelled, by our holding in Maes v. Sheriff, 86 Nev.
317, 468 P.2d 332 (1970), in which we said: Although NRS 178.562(2) may not have been
intended to bar a second criminal complaint in the circumstances before us, basic fairness
does bar such a procedure. A new proceeding for the same offense (whether by complaint,
indictment or information) is not allowable when the original proceeding has been dismissed
due to the willful failure of the prosecutor to comply with important procedural rules.
The State suggests, in essence, that the facts of the Maes case are distinguishable from the
facts of the instant case because, in the Maes case, the State asked and was allowed time to
prepare an affidavit showing good cause for a continuance, but then did not bother to prepare
and submit the affidavit; whereas our attention is drawn to the fact that, in the instant case,
the State did not even bother to request time to make a showing of good cause. We do not
perceive how the State's position is enhanced by this distinguishing feature.
The State also suggests that our holding in Maes applied only to willful failures to
comply with important procedural rules, which the State construes as meaning intentional.
In essence the State contends that, absent a showing of calculated bad faith, the State's legal
representatives have an unrestricted right to blunder interminably, which they may exercise
by repeated refiling of the same charges, limited only by the applicable statute of limitations.
A reading of the Maes case, in the light of its facts, should have made it evident that its ruling
applies equally to situations where there has been conscious indifference to rules of procedure
affecting a defendant's rights.
1
We can find no error on the part of the lower court in
applying the doctrine of the Maes case to the facts of the instant one.
____________________

1
The present incumbent of the District Attorney's office did not occupy that office at the time of the
procedural derelictions mentioned herein, or at the time this appeal was initiated.
We can find no error on the part of the lower court in applying the doctrine of the Maes
case to the facts of the instant one.
Affirmed.
____________
87 Nev. 84, 84 (1971) Smith v. State
BRIAN CLARK SMITH, Appellant, v. STATE
No. 6312
February 26, 1971 482 P.2d 302
Appeal from judgment of conviction by the Eighth Judicial District Court, Clark County;
William R. Morse, Judge.
Defendant was convicted before the district court of possession of a cheating device and
he appealed. The Supreme Court held that where casino security officer testified that actual
slot machine used by defendant and demonstrator were made by same manufacturer and both
had standard acceptors, there was sufficient foundation for demonstration by security officer
of how cheating device employed by defendant worked.
Affirmed.
Alfred Becker, of Las Vegas, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Lorin D.
Parraguirre, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Admissibility of evidence of test depends upon foundational showing of substantial similarity between the
tests conducted and actual condition.
2. Criminal Law.
Decision whether to allow demonstration rests largely in discretion of trial judge and his decision will not
be overturned on appeal absent clear showing of abuse of discretion.
3. Criminal Law.
Where casino security officer testified that actual slot machine used by defendant and demonstrator were
made by same manufacturer and both had standard acceptors, there was sufficient foundation for
demonstration by security officer of how cheating device employed by defendant worked. NRS 465.080.
OPINION
Per Curiam:
On February 25, 1970 Smith was convicted by a jury of the crime of Possession of a
Cheating Device. NRS 465.080. Smith was observed, by a security officer, playing a slot
machine in the Thunderbird Hotel in Las Vegas with a twenty-five cent coin having a
mono-filament string attached.
87 Nev. 84, 85 (1971) Smith v. State
was observed, by a security officer, playing a slot machine in the Thunderbird Hotel in Las
Vegas with a twenty-five cent coin having a mono-filament string attached. The device made
it possible for Smith to play the slot machine a number of times using only one coin.
[Headnotes 1-3]
Over objection, the security officer was allowed to demonstrate at the trial how the
cheating device worked. Smith now contends the trial judge erred by allowing the
demonstration without a proper foundation. The security officer testified that the actual slot
machine Smith used and the demonstrator were both Bally machines with standard acceptors.
He testified both machines were substantially similar. Admissibility of evidence depends
upon a foundational showing of substantial similarity between the tests conducted and actual
conditions. Ramseyer v. General Motors Corporation, 417 F.2d 859 (8th Cir. 1969). The
decision whether to allow a demonstration rests largely in the discretion of the trial judge and
his decision will not be overturned on appeal absent a clear showing of an abuse of discretion.
Affirmed.
____________
87 Nev. 85, 85 (1971) Wrenn v. Sheriff
THOMAS WILLIAM WRENN, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 6378
February 26, 1971 482 P.2d 289
Appeal from order of Eighth Judicial District Court, Clark County, denying writ of habeas
corpus; William P. Compton, Judge.
The accused who was bound over for trial on an open murder charge petitioned for writ of
habeas corpus. The district court entered an order denying the writ and the accused appealed.
The Supreme Court held that record of preliminary examination showed sufficient competent
evidence to make it appear that the crime of murder had been committed and that there was
probable cause to believe that the accused had committed it, and therefore it was proper to
charge him with open murder.
Affirmed.
George E. Holt and Anthony M. Earl, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, Roy Woofter, District Attorney, and Charles L.
Garner, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
When evidence is in conflict at preliminary examination, it is function of magistrate to determine weight
to be accorded to testimony of witnesses, and if an inference of criminal agency can be drawn from
evidence it is proper for magistrate to draw it and leave to jury at trial the ultimate determination of which
witnesses are more credible.
2. Criminal Law.
It was not necessary that there be some direct and substantial proof of malice aforethought at preliminary
examination prior to the holding of accused on an open murder charge which covers murder in the first
degree and all necessarily included offenses.
3. Criminal Law.
Record of preliminary examination showed sufficient competent evidence to make it appear that the
crime of murder had been committed and that there was probable cause to believe that the accused had
committed it, and therefore it was proper to charge him with open murder. NRS 175.501, 200.010.
OPINION
Per Curiam:
The appellant was charged with open murder in violation of NRS 200.010. After a
preliminary examination he was bound over to the district court for trial. His petition for a
writ of habeas corpus was denied, and he appeals.
The principal contention of the appellant is that the evidence at the preliminary
examination was insufficient to show that a first degree murder had been committed because
there was no direct proof of malice aforethought, and thus the evidence adduced was less than
sufficient to constitute probable cause to hold the appellant on an open murder charge. We
reject that contention and affirm the order of the district court denying habeas corpus.
The appellant argues that there is no evidence that he intentionally fired the shot which
killed the victim of the shooting; he asserts that the gun was fired accidentally, and that thus
there was no malice aforethought. However, the appellant testified that he thought the victim
had a gun, and that is why he got a weapon himself.
he got a weapon himself. Another witness testified that the victim had fired a pistol just prior
to the fatal shooting. The evidence which was not in conflict showed that the appellant first
sought to confront the victim with a pistol, but when he found it unloaded he went for and
obtained a rifle. There is no conflict in the evidence showing that the victim fled after the
appellant fired two shots from the rifle. The third shot from the rifle was fatal to the victim
and, while there is conflicting evidence as to how that shot happened to be fired, the appellant
had possession of the weapon at the time.
The magistrate resolved the conflicts in the evidence, and found that the proof adduced at
the preliminary examination was sufficient to show that the crime of murder had been
committed and that there was probable cause to believe that the appellant committed it.
Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969).
[Headnote 1]
When the evidence is in conflict at the preliminary examination it is the function of the
magistrate to determine the weight to be accorded to the testimony of the witnesses, and if an
inference of criminal agency can be drawn from the evidence it is proper for the magistrate to
draw it, thereby leaving to the jury at the trial the ultimate determination of which of the
witnesses are more credible. Miner v. Lamb, 86 Nev. 54, 464 P.2d 451 (1970); Bryant v.
Sheriff, 86 Nev. 622, 472 P.2d 345 (1970). The accused's explanation for the homicide, being
in the nature of a defense, whether true or false, reasonable or unreasonable, is for the trier of
fact to consider at trial; and neither the preliminary examination nor the hearing upon a
petition for habeas corpus is designed as a substitute for that function. Bryant v. Sheriff,
supra; State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962).
[Headnote 2]
We have held previously that an open murder complaint charges murder in the first degree
and all necessarily included offenses, such as manslaughter where less than all the elements
of first degree murder are present. Miner v. Lamb, supra; Parsons v. State, 74 Nev. 302, 329
P.2d 1070 (1958); State v. Oschoa, 49 Nev. 194, 242 P.2d 582 (1926); NRS 175.501. Thus
there is no merit to the appellant's contention that unless there is some direct and substantial
proof of malice aforethought at the preliminary examination, an accused cannot be held on an
open murder charge.
[Headnote 3]
On the record of the preliminary examination before us there was sufficient competent
evidence to make it appear that the crime of murder had been committed, and there was
probable cause to believe that the appellant committed it. In re Ervin, 76 Nev. 297, 352 P.2d
718 (1960).
Affirmed.
____________
87 Nev. 88, 88 (1971) O'Banion v. O'Banion
JAMES R. O'BANION, Appellant, v.
CAROL O'BANION, Respondent.
No. 6452
February 26, 1971 482 P.2d 313
Appeal from order of the Second Judicial District Court, Washoe County, denying motion
for change of venue; Emile J. Gezelin, Judge.
Divorce action by wife. The district court entered order denying husband's motion for
change of venue, and husband appealed. The Supreme Court held that husband, by
simultaneously filing a demand to change venue to county of his residence and a motion
therefor, did not waive his right to have venue changed.
Reversed.
Diehl, Recanzone & Evans, of Fallon, for Appellant.
James C. Martin, of Carson City, for Respondent.
1. Venue.
Filing of a demand to change venue is a precondition to one's right to have venue changed.
2. Venue.
Defendant by simultaneously filing a demand to change venue to county of his residence and a motion
therefor, did not waive his right to have venue changed. NRS 13.050.
OPINION
Per Curiam:
This divorce action was commenced in Washoe County by the wife. Within the time
limited for answering, the husband, a resident of Lyon County, simultaneously filed a demand
to change venue to the county of his residence and a motion therefor.
87 Nev. 88, 89 (1971) O'Banion v. O'Banion
therefor. His motion was denied and he has appealed to this court for relief.
[Headnote 1]
The filing of a demand to change venue is a precondition to one's right to have venue
changed. Elam v. Griffin, 19 Nev. 442 (1887); Connolly v. Salsberry, 43 Nev. 182, 183 P.
391 (1919); Nevada Transit Co. v. Harris Bros., 80 Nev. 465, 396 P.2d 133 (1964); Byers v.
Graton, 82 Nev. 92, 411 P.2d 480 (1966). The issue presented here is whether the husband,
by filing his demand and motion simultaneously, waived his right to have venue changed.
The wife contends that the demand must precede the motion, and the district court agreed.
[Headnote 2]
Although a demand to change usually is made before a motion to change is presented to
the court, we find nothing in the cases cited or the applicable statute, NRS 13.050, to preclude
a change of venue if the two documents, demand and motion, are filed together. Indeed, this
was done in Byers v. Graton, supra, and a change of venue ordered.
Reversed.
____________
87 Nev. 89, 89 (1971) Lamb v. Bennett
RALPH LAMB, SHERIFF OF CLARK COUNTY, NEVADA, Appellant,
v. JAMES TOMMY BENNETT, Respondent.
No. 6219
March 2, 1971 482 P.2d 298
Appeal from an order granting the respondent's petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; William P. Compton, Judge.
The district court ordered petitioner discharged from custody on basis that State had failed,
at preliminary examination, to show sufficient corroboration of charges, and sheriff appealed.
The Supreme Court, Batjer, J., held that evidence, in preliminary examination, other than
testimony of accomplice was sufficient to connect defendant with commission of murder and
robbery offenses.
Reversed and remanded.
Robert List, Attorney General, Roy A. Woofter, District Attorney, Alan R. Jones, Chief
Criminal Deputy District Attorney and Addeliar D.
Attorney and Addeliar D. Guy, Deputy District Attorney, Clark County, for Appellant.
Alfred Becker and David Abbatangelo, of Las Vegas, for Respondent.
1. Criminal Law.
Requirement that testimony of accomplice be corroborated is applicable to preliminary hearing.
2. Criminal Law.
Evidence in preliminary examination other than testimony of accomplice was sufficient to connect
defendant with commission of murder and robbery offenses. NRS 175.291, 195.020.
3. Criminal Law.
Quantum of proof acquired at preliminary examination is less than that required at trial.
4. Habeas Corpus.
Writ of habeas corpus will issue to the end that accused will not be compelled to undertake burden of trial
if evidence before committing magistrate is legally insufficient to indicate that accused has committed
offense charged.
OPINION
By the Court, Batjer, J:
The respondent was charged as a principal pursuant to NRS 195.020, by criminal
complaint with the crimes of murder, robbery and kidnapping, all arising out of a single
incident occurring at the Peyton Place Bar in Las Vegas, Nevada, at approximately 8:00 p.m.
on April 18, 1969. During the robbery, the patrons and employees were held at gunpoint. One
customer, Calvin Popejoy, was shot and killed, and a considerable amount of money was
taken from the premises.
The testimony given at the preliminary hearing established that Leroy Allen Marsh, Alfred
Adams, Reginald Aernout and the respondent agreed to commit several robberies, including
one at the Peyton Place Bar. Adams and Aernout entered the bar while Marsh remained
outside as lookout and the respondent remained in the car as the driver. None of the patrons
or employees of the bar was able to identify the respondent as one of the robbers although
there was evidence to place the others accused at the scene of the crime.
Upon being apprehended, Marsh, Adams, Aernout and the respondent were charged with
robbery, murder and kidnapping. Aernout waived a preliminary examination and on October
23, 1969, pled guilty to the crime of first degree murder.
The preliminary examinations of Marsh, Adams and the respondent were consolidated. At
that hearing Aernout testified for the State and specifically identified the respondent as the
man who had driven the getaway car after the robbery at the Peyton Place Bar.
The testimony of Aernout was corroborated by Bobby Ray Schneider, a long time friend of
the respondent. Schneider testified that he had seen the respondent with Aernout and Adams
on the afternoon before the robbery in and about the automobile owned by the respondent.
The witness further testified that during the evening following the robbery, Marsh, Adams,
Aernout and the respondent visited him at his home and offered to purchase his automobile
for cash.
Schneider also testified that he and the respondent had a conversation in the mess hall of
the city jail on the day of the respondent's arraignment in this case. At that time the
respondent told the witness that They couldn't get him for murder because all he did was
drive the getaway car.
At the conclusion of the preliminary examination, Marsh, Adams and the respondent were
bound over for trial on charges of murder and robbery. On December 4, 1969, the respondent
filed a petition for a writ of habeas corpus. On March 10, 1970, the district court ordered the
respondent discharged from custody upon the basis that the State had failed, at the
preliminary examination, to show sufficient corroboration of the charges.
[Headnote 1]
The determination of this case centers around the requirements of NRS 175.291, which
provides in part: 1. A conviction shall not be had on the testimony of an accomplice unless
he is corroborated by other evidence which in itself, and without the aid of the testimony of
the accomplice, tends to connect the defendant with the commission of the offense; and the
corroboration shall not be sufficient if it merely shows the commission of the offense or the
circumstances thereof. The requirement that the testimony of an accomplice be corroborated
is applicable to preliminary hearings. In re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992
(1915); In re Bowman and Best, 38 Nev. 484, 151 P. 517 (1915); Ex parte Hutchinson, 76
Nev. 478, 357 P.2d 589 (1960); State v. Wyatt, 84 Nev. 731, 448 P.2d 827 (1968).
[Headnote 2]
The State concedes that the principal witness, Aernout, was an accomplice to the crimes
charged, therefore the validity of the order of the district court hinges upon the sufficiency
of the testimony elicited from Schneider.
the order of the district court hinges upon the sufficiency of the testimony elicited from
Schneider. Upon examination of the record it appears to this court that Schneider's testimony
tends to connect the defendant with the commission of the offense.
The testimony of Schneider contains several items of relevant evidence which meet the
statutory requirements. First, he placed the respondent in the company of the other men
similarly charged both prior and subsequent to the commission of the crimes. Second, at a
time shortly after the commission of the crimes, he testified that he saw the respondent and
his accomplices with a large sum of money in their possession. Third, and most significantly,
Schneider spoke to the respondent on the date of the latter's arraignment in this case, and at
that time the respondent admitted driving the getaway car. This spontaneous statement on
the part of respondent was an admission against his penal interest.
This court considered an analogous situation in State of Nevada v. Chapman, 6 Nev. 320
(1871). There the appellant, Chapman, who had been in San Francisco, California at the time
the crime was committed, questioned the sufficiency of corroborating evidence presented at
his trial. Discussing Stat. [Laws of the Territory of Nevada] 1861, 473, 365, which is the
predecessor of NRS 175.291, this court said: Upon review of the transcript, it appears that
there was some evidence tending to corroborate the accomplices, as by statute required.
Several witnesses, not defendants, thus testify. Roberts and Evans both place appellant in
company with three of the defendants (one of whom is the witness who gave full evidence of
the agreement), at the time and place testified to, and Roberts in addition swears that the
witness, accomplice, and appellant came in a wagon together. Newby swears that subsequent
to the time above referred to, the appellant was in company with one Squiers, a defendant, in
the night time in San Francisco. Ladd testifies to the sending of a telegram, as agreed by
appellant, over an assumed name, to the accomplice witness. Arthurs says that the key to this
telegram produced at the trial was in the handwriting of appellant. Burke and Edwards testify
that appellant denied the sending of this telegram upon its exhibition to him after his arrest.
How much the weight of this evidence may be, it is not for this court to decide. It is evidence
tending to the statutory corroboration; considered by the jury sufficient; and therefore the
objection of appellant must fail.
Here the witness, Schneider, gave much stronger testimony tending to connect the
respondent with the commission of the offenses.
offenses. He testified that he had seen the respondent in the company of the other suspects
before and after the commission of the crimes charged, and that the respondent told him that
he had driven the getaway car. Taken as a whole the circumstances surrounding that
statement certainly tend to connect the respondent with the commission of the offenses.
[Headnote 3]
It was not necessary for the respondent to have told Schneider that they couldn't get him
for the murder of Calvin Popejoy because all he did was drive the getaway car from the
Peyton Place Bar on the evening of April 18, 1969. As indicated in State of Nevada v.
Chapman, supra, the weight to be given to this evidence is not for the district court nor this
court to decide, but it is evidence to be weighed by the magistrate. Schneider's testimony was
not shaken by cross examination, it was believable and it was not refuted. It must be inferred
that the magistrate considered and weighed it before he bound the respondent over to district
court for trial. The quantum of proof required at a preliminary examination is less than that
required at trial. In Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969), this court said:
At a preliminary hearing there need not be produced the quantum of proof required at a trial
to establish the guilt of the offender beyond a reasonable doubt.
This case is to be distinguished from Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955),
and Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960), where the only evidence, in each
case, connecting the accused with the crime charged was the testimony of an accomplice, and
where there was absolutely no other evidence which in itself and without the aid of the
testimony of the accomplice met the statutory requirement. Cf. State v. Streeter, 20 Nev. 403,
22 P. 759 (1889), and Dutton v. Evans, 400 U.S. 74 (1970).
[Headnote 4]
A writ of habeas corpus will issue to the end that an accused will not be compelled to
undertake the burden of a trial where the evidence before the committing magistrate is legally
insufficient to indicate that he has committed the offense charged. Ex parte Hutchinson,
supra. (Cook v. State, 85 Nev. 692, 696, 462 P.2d 523 (1969).) Here, however, all that is
required by the statute is that the evidence tends to connect the accused with the commission
of the crime. The testimony of Schneider did tend to connect the respondent with the
commission of the crimes charged, therefore, the respondent's petition for a writ of
habeas corpus should have been denied.
the crimes charged, therefore, the respondent's petition for a writ of habeas corpus should
have been denied.
Reversed and remanded to district court for further proceedings.
Zenoff, C. J., Mowbray and Thompson, JJ., and Mann, D. J., concur.
____________
87 Nev. 94, 94 (1971) Stockton v. Sheriff
ROBERT ARTHUR STOCKTON, Appellant, v. SHERIFF,
No. 6462
March 2, 1971 482 P.2d 285
Appeal from an order denying a petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
The indicted accused petitioned for writ of habeas corpus. The district court entered an
order denying the writ and the accused appealed. The Supreme Court held that where at reset
hearing before justice court state filed a written motion for another continuance because of
absence of witness along with required affidavit showing good cause and defendant moved
for dismissal on ground that magistrate had previously admonished that case would be
dismissed if state was not ready but magistrate dismissed proceedings on his own motion on
ground that the complaint was defective, by failure to raise issue of procedural defect by writ
of habeas corpus after the first continuance defendant waived right to raise same and
magistrate was not obligated to consider dismissal of the complaint at reset hearing because
of prior procedural inadequacies, and dismissal of complaint for patent defects was
discretionary with magistrate and did not bar further prosecution.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner,
1. Criminal Law.
Where state on date set for preliminary examination verbally moved for continuance because of the
absence of one of its witnesses and did not submit an affidavit showing good cause as required by rule
and justice granted state's motion and reset case, defendant might have been
entitled to apply for writ of habeas corpus if the state had willfully disregarded his
rights, but such relief was waived when not requested and his objection to granting
of state's motion for continuance did not preserve right to raise on appeal the state's
failure to comply with rule requiring submission of an affidavit showing good cause.
required by rule and justice granted state's motion and reset case, defendant might have been entitled to
apply for writ of habeas corpus if the state had willfully disregarded his rights, but such relief was waived
when not requested and his objection to granting of state's motion for continuance did not preserve right to
raise on appeal the state's failure to comply with rule requiring submission of an affidavit showing good
cause. NRS 171.102; DCR 21.
2. Criminal Law.
Where at reset hearing before justice court state filed a written motion for another continuance because of
absence of witness along with required affidavit showing good cause and defendant moved for dismissal,
but magistrate dismissed proceeding on his own motion on ground that the complaint was defective,
magistrate was not obligated to consider dismissal of the complaint at reset hearing because of prior
procedural inadequacies, and discretionary dismissal of complaint for patent defects did not bar further
prosecution. NRS 171.102, 178.562, subd. 2; DCR 21.
OPINION
Per Curiam:
The appellant's petition for a writ of habeas corpus was denied by the district court and he
brings this appeal.
[Headnote 1]
A criminal complaint was filed against the appellant on September 16, 1969, charging him
with the sale and possession of narcotics. On November 5, 1969, the date set for the
preliminary examination, the state verbally moved for a continuance because one of its
witnesses was not available to testify. Over the objection of the appellant, the magistrate
granted the state's motion and the case was reset for December 11, 1969, with the admonition
that if the state was not ready to proceed on that date it would be dismissed.
1

On December 10, 1969, when it again became apparent to the state that one of its
witnesses would be unable to attend
____________________

1
The state did not show good cause for the requested continuance by the submission of an affidavit in
compliance with DCR 21, which has been made applicable to justice court proceedings. Oberle v. Fogliani, 82
Nev. 428, 420 P.2d 251 (1966); Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969); State v. Austin, 87 Nev. 81,
482 P.2d 284 (1971). The appellant might have been entitled to apply for a writ of habeas corpus the
preliminary examination, a written if the state had willfully disregarded his rights, however, such relief
was waived when it was not requested. His objection to the granting, on November 5, 1969, of the state's motion
for a continuance did not preserve his right to raise on this appeal, the state's failure to comply with DCR 21. Cf.
Oberle v. Fogliani, supra.
the preliminary examination, a written motion for another continuance was filed, along with
the required affidavit, and both were served upon counsel for the appellant.
At the hearing on December 11, 1969, the appellant moved for a dismissal upon the
ground that the magistrate had previously admonished the state that the case would be
dismissed if it was not ready to proceed. However, the magistrate dismissed the proceedings
upon his own motion when he discovered that the complaint was defective because it had not
been signed or sworn to in compliance with NRS 171.102.
2

On December 12, 1969, the state filed another complaint against the appellant on the same
charges, and on March 5, 1970, the appellant was indicted by the grand jury for those same
offenses. The appellant's petition for a writ of habeas corpus followed. On October 13, 1970,
the petition was denied.
[Headnote 2]
The appellant contends that his writ application should have been granted because the state
had failed to comply with the procedural rules of the justice's court in seeking a continuance
for nonavailability of a witness. (See footnote 1, supra.) Relying on Maes v. Sheriff, 86 Nev.
317, 468 P.2d 332 (1970), the appellant further argues that the willful failure of the state to
comply with such important procedural rules precludes the filing of new proceedings for the
same offense, whether by complaint, indictment or information. Such a contention might
have been persuasive if urged as grounds for habeas relief after the magistrate ordered a
continuation of the first preliminary examination. However, the dismissal of the case at the
continued preliminary hearing was upon the magistrate's own motion when he found the
complaint to be defective and was not because of the state's willful failure to comply with
procedural rules, for at that juncture there was compliance by the state with the requirements
of Hill v. Sheriff, supra (footnote 1).
By his failure to raise the issue of a procedural defect by habeas, after the hearing on
November 5, 1969, the appellant waived the aegis of Hill v. Sheriff, supra, and the magistrate
was not obligated to consider dismissal of the complaint on December 11, 1969, because of
the prior procedural inadequacies. The dismissal of the complaint for patent defects was
discretionary with the magistrate, and it was not a bar to further prosecution.
____________________

2
NRS 171.102: The complaint is a written statement of the essential facts constituting the public offense
charged. It shall be made upon oath before a magistrate or a notary public.
further prosecution. Maes v. Sheriff, supra, is not helpful to the appellant's position,
consequently, subsequent proceedings via indictment are permissible. (NRS 178.562(2).)
The district court did not err in denying the appellant's petition for a writ of habeas corpus.
Affirmed.
____________
87 Nev. 97, 97 (1971) Driscoll v. Erreguible
EDWIN W. DRISCOLL, Appellant, v. LOUIS ERREGUIBLE, Doing
Business as LOUIS' BASQUE CORNER, Respondent.
No. 6274
March 3, 1971 482 P.2d 291
Appeal from judgment and from order denying motion for new trial. Second Judicial
District Court, Washoe County; Thomas O. Craven, Judge.
Action for personal injuries sustained when plaintiff slipped and fell on defendant's
premises. The district court entered judgment in favor of defendant, and plaintiff appealed.
The Supreme Court, Gunderson, J., held that use of phrase however slight in instructing
jury with regard to contributory negligence was prejudicial error.
Reversed.
[Rehearing denied April 28, 1971]
Batjer and Mowbray, JJ., concurred in part, dissented in part.
Sidney W. Robinson and Frank Cassas, of Reno, for Appellant.
Leslie A. Leggett, of Reno, for Respondent.
1. Appeal And Error; Negligence.
Use of phrase however slight in instructing jury with regard to contributory negligence was prejudicial
error.
2. Negligence.
Negligence is failure to exercise that degree of care in a given situation which a reasonable man under
similar circumstances would exercise.
3. Negligence.
Standard of care to be exercised under given situation so as to avoid charge of negligence is that of the
ordinary prudent man, not that of an extraordinarily prudent man.
4. Appeal And Error.
Deadlocked deliberations of jury and their subsequent question with regard to whether any negligence
would bar plaintiff's recovery, together with their rapid verdict after court's erroneous response to their
query, indicated jury felt defendant was causally negligent and plaintiff was minimally negligent and prima
facie showed court's use of phrase however slight in instructing jury with regard to contributory
negligence was prejudicial and not mere harmless error notwithstanding neither trial transcript nor
statement of evidence appeared in record on appeal. NRCP 75(c).
Party who prevails in lower court does not have unqualified right to require an appellant to file a full trial
transcript and appellant has duty to omit all matter from transcript not essential to decision of questions
presented by appeal. NRCP 75(e).
OPINION
Appellant Driscoll seeks reversal of a judgment entered upon a jury verdict, denying him
recovery for injuries allegedly sustained when he slipped and fell in premises where
respondent Erreguible conducts his business. We reverse the judgment, and remand the cause
for a new trial, having determined that the lower court erred when it gave the jury a certain
supplemental instruction on respondent's defense of contributory negligence, and that, upon
consideration of the record on appeal and of the manner the record was brought to us, this
error should not be deemed harmless.
The case was submitted to the jury with instructions commonly used in this type of case.
1
After the jury had thus been instructed, and during their deliberations, the jury sent a written
inquiry to the judge: If the plaintiff contributed in any way to negligence, does that absolve
the defendant of any liability whatsoever . . . ?"
____________________

1
To establish the defense of contributory negligence, the burden is upon the defendant to prove by a
preponderance of evidence that the plaintiff was negligent, and that such negligence contributed in some degree
as a proximate cause of the injury. Instruction No. 10.
The proximate cause of an injury is that cause which, in natural and continuous sequences, unbroken by an
efficient intervening cause, produces the injury, and without which the result would not have occurred. It is the
efficient causethe one that necessarily sets in operation the factors that accomplish the injury. In these
instructions when I use the expression efficient cause,' that term means the cause that produced the result
complained of. Instruction No. 17.
Contributory negligence is negligence on the part of a person injured which, cooperating in some degree
with the negligence of another, helps in proximately causing the injury of which the former thereafter
complains. Instruction No. 18.
way to negligence, does that absolve the defendant of any liability whatsoever . . . ? Over
objection by appellant's counsel, the court instructed the jury in part: Contributory
negligence is negligence on the part of a person injured, cooperating in some degree with the
negligence of another and acts in some degree, however slight, in proximately causing the
injury in which the former thereafter complains. (Emphasis added.) The jury returned to its
deliberations and shortly thereafter rendered its verdict in favor of Erreguible.
In designating the record on appeal, as required by NRCP 75(a), appellant's counsel did
not designate a trial transcript.
2
However, subsequently they did file a Statement of Points, in
attempted compliance with NRCP 75(d).
3
This Statement of Points recited that appellant
sought determination of a single legal issue, to wit: Did the District Court improperly
instruct the jury that contributory negligence on the part of the plaintiff was negligence
however slight'. A counterdesignation of the trial transcript having been made by
respondent under NRCP 75(a), appellant's counsel directed a letter to the clerk of the lower
court, with a copy to respondent's counsel, requesting that the clerk transmit to this court a
partial record on appeal, and evincing a willingness to pay for the trial transcript if, but only
if, this should be determined to be appellant's responsibility.
4

Six days later, respondent moved the lower court for an order dismissing the appeal, "or
in the alternative to require appellant to supply at his expense a copy of the reporter's
transcript to be included in the record on appeal, as well as to furnish a copy thereof to
counsel for respondent."
____________________

2
(a) Designation of Contents of Record on Appeal. Promptly after an appeal is taken, the appellant shall
serve upon the respondent and file with the district court a designation of the portions of the record, proceedings,
and evidence to be contained in the record on appeal, unless the respondent has already served and filed a
designation. Within 10 days after the service and filing of such a designation, any other party to the appeal may
serve and file a designation of additional portions of the record, proceedings, and evidence to be included. If the
respondent files the original designation, the parties shall proceed under subdivision (b) of this rule as if the
respondent were the appellant.

3
(d) Statement of Points. No assignment of errors is necessary. If the appellant does not designate for
inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his
designation a concise statement of the points on which he intends to rely on the appeal.

4
The text of this letter was as follows: With reference to the above case, this will serve as authority to
transmit to the Clerk of the Supreme Court a partial Record on Appeal to consist of all matters which are to be
included in the record as designated by the plaintiff.
This will further advise, and you will note from the file, that the transcript of the proceedings was not
designated for inclusion in the record by the plaintiff. However, the transcript was designated by the defendant.
A legal question arises in this context as to who is legally
order dismissing the appeal, or in the alternative to require appellant to supply at his expense
a copy of the reporter's transcript to be included in the record on appeal, as well as to furnish
a copy thereof to counsel for respondent. Before this motion could be heard, the appeal was
docketed in this court on the original papers pursuant to NRCP 75(i); whereupon, respondent
filed a Motion to Dismiss Appeal in this court, grounded on appellant's supposed obligation
to serve a copy of the reporter's transcript of all the evidence and proceedings of the entire
trial. In reply to respondent's motion appellant contended, with some cogency and on the
basis of respectable authority, that appellant should be required to include the additional
portion of the record designated by respondent only if respondent could contend in good
faith that this was necessary, and that if the portions of the transcript designated by
respondent are unnecessary, then the burden of obtaining those portions rests upon
respondent. The question being thus presented, we denied respondent's Motion to Dismiss
Appeal; however, respondent has neither augmented the record on appeal by filing the trial
transcript designated by him, nor attempted to establish its substance pursuant to NRCP
75(c).
5

[Headnote 1]
1. The use of the phrase however slight in instructing the jury with regard to
contributory negligence is generally condemned. Annot. Propriety and Prejudicial Effect of
Instructions Referring to the Degree or Percentage of Contributory Negligence Necessary to
Bar Recovery, 87 A.L.R.2d 1391 (1963); W. Prosser, Law of Torts, 64 (3d ed. 1964). We
agree that this type of instruction is improper.
Whether the phrase refers to the degree of causality, or the degree of negligence, its use is
equally offensive. If the phrase refers to the degree of causality, as it seems to here, the
jury may be misled to believing recovery is barred even where the negligence of the
plaintiff contributed to his injuries only in a remote manner.
____________________
responsible to pay for the cost of preparing the transcript. I have advised counsel for the defendant that I will not
pay such an expense unless expressly ordered to do so by the Court. I anticipate that the defendant will now file
some form of motion so that the District Court can have the opportunity of hearing arguments on this point.
Since it may be some time before the Court can decide this question, please forward the Record on Appeal
as tentatively completed so that my appeal is not put in jeopardy.

5
(c) Form of Testimony. Testimony of witnesses designated for inclusion need not be in narrative form, but
may be in question and answer form. A party may prepare and file with his designation a condensed statement in
narrative form of all or part of the testimony, and any other party to the appeal, if dissatisfied with the narrative
statement, may require testimony in question and answer form to be substituted for all or part thereof.
refers to the degree of causality, as it seems to here, the jury may be misled to believing
recovery is barred even where the negligence of the plaintiff contributed to his injuries only in
a remote manner. This is not the law in Nevada. Cox v. L. A. & S. L. Railroad Company, 56
Nev. 472, 487, 56 P.2d 149 (1936). The law recognizes a difference between proximate
cause and remote cause; and in defining contributory negligence excludes the idea of
remote,' indirect' or insignificant' causal connection between the negligence and the injury.
Huey v. Milligan, 175 N.E.2d 698, 704 (Ind. 1961).
[Headnotes 2, 3]
If the phrase refers to the degree of negligence, the jury may be led to believe that the
slightest want of care will bar recovery. This, too, is not the law. Negligence is failure to
exercise that degree of care in a given situation which a reasonable man under similar
circumstances would exercise. Rocky Mt. Produce v. Johnson, 78 Nev. 44, 51, 369 P.2d 198
(1962). The standard of care is that of the ordinary prudent man, not that of extraordinarily
prudent man. W. Prosser, supra, 32. See also Iwrey v. Fowler, 116 N.W.2d 722 (Mich.
1962), and Craig v. Benedictine Sisters Hospital Ass'n, 93 N.W. 669 (Minn. 1903).
2. The respondent, relying on Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952),
asserts that the giving of the offensive instruction must be held to be harmless error because
we have before us neither a trial transcript, nor any statement of the evidence prepared in
accordance with NRCP 75(c). In most cases, we would undoubtedly agree; for usually,
without a trial transcript or a statement of the evidence, the record will contain no substantial
indicia that an error in instructing the jury has had a prejudicial effect. However, because of
two distinguishing features in the instant case, considered together, we feel constrained to
reach a different result.
[Headnote 4]
First, even in Pfister, this court examined the partial record before it, to ascertain whether
the possibility that the error was harmless could be disregarded as improbable or remote. 69
Nev., at 311. There it could not be; here the deadlocked deliberations of the jury, their
subsequent question with regard to whether any negligence would bar recovery by Driscoll,
together with their rapid verdict after the court's erroneous response to their query, indicate
they felt Erreguible was causally negligent and Driscoll was minimally negligent. Cf. Clark v.
State, 222 P.2d 300 (Cal.App. 1950); and People v. Quicke 37 Cal.Rptr.
Quicke 37 Cal.Rptr. 617 (1964). Unquestionably, one who seeks to have a judgment set aside
because of an erroneous ruling carries the burden of showing that prejudice resulted.
Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968); Palmer v. Hoffman, 318
U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943); 7 J. Moore, Federal Practice, 61.02, 61.03,
61.11 (2nd ed. 1970). However, in Peterson v. Silver Peak, 37 Nev. 117, 140 P. 519 (1914),
we held that where a party may reasonably contend a different result might have been
reached, but for the error in question, this burden is met. In the instant case, by the record
brought before us, appellant made a prima facie showing of prejudice.
[Headnote 5]
Second, in Pfister, there was no question which litigant should suffer because the record
did not allow a fully informed judgment. Here, we are necessarily concerned with this issue.
Respondent apparently believes NRCP 75 invests the party who prevails in the lower court
with an unqualified right to require an appellant to file a full trial transcript. We do not agree.
While appellant had the burden of demonstrating prejudice, his counsel had another duty
under NRCP 75(e), which provides in material part: All matter not essential to the decision
of the questions presented by the appeal shall be omitted. That rule further provides: For
any infraction of this rule . . . 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. If disputes concerning the parties'
respective rights and obligations were not to be subject to discretionary control by the court,
NRCP 75(e) could be frustrated, the orderly processes of NRCP 75 would become a weapon
of oppression; and it is for such reasons that NRCP 75(o) vests the district court with power
to control disputes regarding the parties' obligations.
6

Appellant's counsel reasonably believed that the transcript was not essential, and
proceeded in a reasonable manner to force a determination as to which party should pay for it.
To the extent respondent's Motion to Dismiss Appeal raised the issue, our Order denying that
motion absolved appellant of any immediate obligation to pay for the transcript.
____________________

6
NRCP 75(o) provides in part: If a transcript of the testimony is on file the clerk shall transmit that also;
otherwise the appellant shall file with the clerk for transmission such transcript of the testimony as he deems
necessary for his appeal subject to the right of a respondent either to file additional portions or to procure an
order from the district court requiring the appellant to do so.
immediate obligation to pay for the transcript. This threw upon respondent the necessity of
deciding whether the partial record designated by appellant made a prima facie showing of
prejudice, and, if so, whether he wished to file additional portions of the record himself in an
attempt to meet that prima facie showing. Apparently, respondent's counsel had greater faith
in the theoretical necessity of a trial transcript to demonstrate prejudice, than he had in the
transcript itself.
The appellant having already been aggrieved by an erroneous jury instruction, we are
loathe to deny him a proper trial by extending the rule of the Pfister case to this one which,
although superficially similar, is really quite different. As was said in the concurring opinion
in Lee v. Baker, 77 Nev. 462, 471, 366 P.2d 513, 517 (1961): A trial free from error is more
likely to produce a just result than one in which error has occurred.
Reversed and remanded for a new trial.
Zenoff, C. J., and Thompson, J., concur.
Batjer, J., concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion which holds that the judgment
of the district court should be reversed and the appellant's motion for a new trial should be
granted.
I concur in that part of the majority opinion where it found that error had been committed
by the district court when it gave the questioned instruction. I also agree with the majority's
analysis of the responsibility for supplying an adequate record and their conclusion that the
responsibility ultimately rested with the respondent. However, the fixing of this responsibility
does not furnish this court with a record that adequately enables us to determine whether the
trial court's error was prejudicial or harmless.
In Peterson v. Silver Peak, 37 Nev. 117, 140 P. 519 (1914), this court held that an error
complained of is harmless unless it so substantially affects the rights of the complaining party
that it could be reasonably claimed that were it not for the error a different result might
reasonably have been expected.
In Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968), the majority
opinion said: A judgment cannot be reversed by reason of an erroneous instruction unless
upon a consideration of the entire proceedings it shall appear that such error has resulted in a
miscarriage of justice. Prejudice is not presumed. (Citations omitted.) If the giving of the
instruction was error, it is harmless because upon considering the entire record, it is not
probable that a different result would ensue at a new trial free of the contested
instruction.
instruction was error, it is harmless because upon considering the entire record, it is not
probable that a different result would ensue at a new trial free of the contested instruction.
The burden is upon the appellant to show the probability of a different result. (Citations
omitted.)
Furthermore, if the requirements of Rule 61 of the Nevada Rules of Civil Procedure are
fulfilled, then there was only harmless error. The standard of Rule 61 is pertinent. Eldorado
Club, Inc. v. Graff, supra; Lee v. Baker, supra; Serpa v. Porter, supra. It is taken from the
Federal Rules of Civil Procedure so its interpretation there should govern here. It is clear that
the doctrine of presumed prejudice has been rejected. 7 J. Moore, Federal Practice 61.02
(2d ed. 1966), and the presumption of integrity of verdicts in civil cases is the rule. Id. at
61.03, 61.11. He who seeks to have a judgment set aside because of an erroneous ruling
carries the burden of showing that prejudice resulted.' Palmer v. Hoffman, 318 U.S. 109, 116,
63 S.Ct. 477, 482, 87 L.Ed. 645 (1943). The record must be considered as a whole. Jiffy
Markets Inc. v. Vogel, 340 F.2d 495 (8th Cir. 1965).
Without more information than is presently contained in the record, we cannot infer from
the facts that the jury was apparently deadlocked before they asked the question; received the
erroneous instruction, and then immediately reached a verdict, that a different result might
have been reached in the absence of the instruction. The respondent was justified in relying
on Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952). The evidence might indeed have
clearly indicated the appellant's negligence, or on the other hand, the respondent's care.
Only if the instruction, under consideration, was in the nature of fundamental error, that is,
error inherently prejudicial to the substantive right of the complaining party, and in and of
itself possessing a clear capacity to bring about an unjust result, would this court be justified
in reversing without an opportunity to review all the evidence.
A careful reading of the majority opinion reveals no finding of such inherent error in the
instruction, but only a misplaced reliance on an inference that a different result might have
been reached had the error not occurred. The inference is based solely upon the sequence of
events surrounding the giving of the instruction. Prejudice cannot be presumed and the
presumption of the integrity of verdicts in civil cases must be the rule.
In the light of the forceful language of Truckee-Carson Irr.
Dist. v. Wyatt, supra, and the standard of NRCP 61,
1
I would afford the respondent an
opportunity to supplement the record under NRCP 75(h),
2
and enable this court to
completely perform its appellate function.
Mowbray, J., concurs.
____________________

1
NRCP 61: No error in either the admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.

2
NRCP 75(h): (Provides in part): If anything material to either party is omitted from the record on appeal by
error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the
record is transmitted to the appellate court, or the appellate court, on a proper suggestion or of its own initiative,
may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall
be certified and transmitted by the clerk of the district court.
____________
87 Nev. 105, 105 (1971) City of Las Vegas v. Mack
CITY OF LAS VEGAS, NEVADA; CITY OF HENDERSON, NEVADA; CITY OF
NORTH LAS VEGAS, NEVADA, and CITY OF BOULDER CITY, NEVADA,
Appellants, v. MICHAEL MACK and ARLENE MACK, Respondents.
No. 6295
March 3, 1971 481 P.2d 396
Appeal from summary judgment of Eighth Judicial District Court, Clark County; Thomas
J. O'Donnell, Judge.
Owners and operators of retail shop in unincorporated area of county brought action
against county and State Tax Commission to have County-City Relief Tax Law and county
ordinance enacted pursuant thereto declared unconstitutional and cities located within the
county intervened and were made parties defendant. The district court declared the statute
unconstitutional and the defendants appealed. The Supreme Court, Mowbray, J., held that
statute providing that, upon petition by a majority of governing body of each city within a
county, board of county commissioners shall enact county ordinance imposing a sales tax
on gross receipts of retailers within county and that county treasurer shall apportion all
proceeds of such tax among cities within county if there are two or more cities within the
county did not take property of owners without due process of law.
board of county commissioners shall enact county ordinance imposing a sales tax on gross
receipts of retailers within county and that county treasurer shall apportion all proceeds of
such tax among cities within county if there are two or more cities within the county did not
take property of owners without due process of law.
[Rehearing denied April 12, 1971]
Earl P. Gripentrog, City Attorney, and Michael J. Wendell, Deputy City Attorney, Las
Vegas; Monte J. Morris, City Attorney, Henderson; George F. Ogilvie, Jr., and his successor,
Carl E. Lovell, Jr., City Attorney, North Las Vegas; and James E. Ordowski, City Attorney,
Boulder City, for Appellants.
Paul V. Carelli, III, of Las Vegas, for Respondents.
Russell W. McDonald, Legislative Counsel, of Carson City, Amicus Curiae.
1. Statutes.
County-City Relief Tax Law providing for a sales tax did not violate proscription against amending a
referred law except by the direct vote of the people on theory that its effect was to increase rate of sales
and use tax previously authorized by a referendum. NRS 377.010 et seq., 377.050; Const. art. 19,
1, subd. 2.
2. Constitutional Law; Licenses.
Statute directing board of county commissioners to enact county ordinance imposing a sales tax on
gross receipts of any retailer doing business within county upon petition by majority of governing body of
each city within county and directing county treasurer to apportion proceeds from such tax between city
and county general fund if there is one incorporated city within the county and to apportion proceeds
among all cities if there are two or more cities within county was not an unconstitutional delegation to
boards of county commissioners of legislature's power to impose a tax. NRS 377.010 et seq., 377.030,
subd. 1, 377.040, 377.050.
3. Constitutional Law; Licenses.
Statute directing board of county commissioners to enact a county ordinance imposing a sales tax on
gross receipts of any retailer doing business within county upon petition by a majority of governing body
of each city within county and directing county treasurer to apportion proceeds of tax among cities within
county in proportion to their respective populations if there should be two or more cities in the county did
not take property of owners of retail shop in unincorporated area of county in which such tax was
imposed and in which there were more than two cities without due process of law.
NRS 377.010 et seq., 377.030, subd.
imposed and in which there were more than two cities without due process of law. NRS 377.010 et seq.,
377.030, subd. 1, 377.040.
OPINION
The Nevada Legislature enacted in 1969 the County-City Relief Tax Law. See chapter 377
of Nevada Revised Statutes. In substance, the law provides that, upon petition by a majority
of the governing body of each city within a county, the board of county commissioners of that
county shall enact a county ordinance imposing a sales tax at the rate of one-half of 1 percent
on the gross receipts of any retailer doing business within the county. The law further
provides that the county treasurer shall (a), if there is one incorporated city in the county,
apportion such moneys between the city and the county general fund in proportion to the
respective populations of the city and the unincorporated area of the county, and (b), if there
are two or more cities in the county, apportion all such moneys among the cities in proportion
to their respective populations. NRS 377.050.
1
Each of the governing bodies of all the
incorporated cities of Clark County, namely, the cities of Las Vegas, North Las Vegas,
Henderson, and Boulder City, petitioned the Board of County Commissioners of Clark
County to enact the county-wide ordinance prescribed in the statute.
____________________

1
NRS 377.050:
1. All fees, taxes, interest and penalties imposed and all amounts of tax required to be paid to counties under
this chapter shall be paid to the tax commission in the form of remittances made payable to the Nevada tax
commission.
2. The tax commission shall transmit the payments to the state treasurer to be deposited in the state treasury
to the credit of the city-county relief tax fund hereby created.
3. The state treasurer shall, quarterly, from the city-county relief tax fund:
(a) Transfer 1 percent of all fees, taxes, interests and penalties collected in each county to the general fund in
the state treasury as compensation to the state for the cost of collecting the tax for the counties.
(b) Remit to each county treasurer an amount equal to the sum of:
(1) Any fees, taxes, interest and penalties collected in that county pursuant to this chapter, less the amount
transferred to the general fund of the state pursuant to paragraph (a) of this subsection; and
(2) That proportion of the total amount of taxes collected pursuant to this chapter from out-of-state
businesses not maintaining a fixed place of business within this state which the population of that county bears to
the total population of all counties which have in effect a city-county relief tax ordinance.
4. Upon receipt of the moneys remitted pursuant to paragraph (b) of subsection 3, the county treasurer shall:
(a) If there is one incorporated city in the county, apportion such
Each of the governing bodies of all the incorporated cities of Clark County, namely, the
cities of Las Vegas, North Las Vegas, Henderson, and Boulder City, petitioned the Board of
County Commissioners of Clark County to enact the county-wide ordinance prescribed in the
statute. The Board did so by adopting Clark County Ordinance No. 310 on June 5, 1969.
Thereafter, the plaintiffs-respondents, Michael and Arlene Mack, commenced this action
against Clark County and the Nevada State Tax Commission, seeking a judgment declaring
the County-City Relief Tax Law and the resulting Clark County Ordinance No. 310 both
unconstitutional and therefore null and void. By stipulation approved by the district court, the
appellant cities were permitted to intervene, and they were named parties defendant.
2
After
submitting an agreed statement of facts, both the plaintiffs and the defendants moved for
summary judgment. NRCP 56(a), (b).
3
The district judge granted the plaintiffs-respondents'
motion for summary judgment and declared the statute unconstitutional. Hence, this appeal.
We reverse, and we remand the case to the district court with instructions to enter judgment
in favor of the defendants-appellants.
The Macks are the owners and operators of a retail shop in Clark County known as the
Sahara Luggage & Gift Shop. It is located at 953 East Sahara Avenue, which is the boundary
street between the City of Las Vegas on the north and Clark County on the south.
____________________
moneys between the city and the county general fund in proportion to the respective populations of the city and
the unincorporated area of the county.
(b) If there are two or more cities in the county, apportion all such moneys among the cities in proportion to
their respective populations.
5. The provisions of subsection 4 do not apply to Carson City, where the treasurer shall deposit the entire
amount received from the state treasurer in the general fund.
6. Population shall be determined by the last preceding national census of the Bureau of the Census of the
United States Department of Commerce.

2
Clark County filed a disclaimer and was dismissed from the action.

3
RULE 56. SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or
after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits
for a summary judgment in his favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary
judgment in his favor as to all or any part thereof.
street between the City of Las Vegas on the north and Clark County on the south. The Macks
collect the sales tax from customers who make purchases in their shop. The tax may be paid
by residents of the cities or county or by any other persons who purchase articles in the
Macks' shop.
In the court below, the Macks asserted several constitutional challenges to the statute, none
of which, in our opinion, may be utilized to sustain the ruling of the district court. We turn to
consider them.
[Headnote 1]
1. It is contended that the statute imposes a sales tax in violation of the constitutional
proscription against amending a referred law except by the direct vote of the people, since its
effect is to increase the rate of the sales and use tax authorized initially by a referendum of the
voters in 1956. Nev. Const. art. XIX, 1, 2. The identical challenge was presented to the
court in Matthews v. State ex rel. Nevada Tax Comm'n, 83 Nev. 266, 428 P.2d 371 (1967),
and there rejected and will not further be considered.
[Headnote 2]
2. The Macks insist that the statute, as drawn, unconstitutionally delegates to boards of
county commissioners the Legislature's own power to impose a tax. This contention is equally
unsound. The statute leaves nothing to the discretion of the county commissioners. Once that
body has performed the relatively simple task of ascertaining that the petitions before it come
from each of the incorporated cities within the county and represent the will of a majority of
the governing body of each city, as required by subsection 1 of NRS 377.030, the board of
county commissioners is required to enact an ordinance whose provisions are substantially
prescribed by NRS 377.040. Enactment of legislation contingent for its effectiveness upon a
ministerial ascertainment of a state of facts has been approved from early days. Brig Aurora v.
United States, 11 U.S. (7 Cranch) 382 (1813). See also State ex rel. Kaufman v. Martin, 31
Nev. 493, 103 P. 840 (1909); Ex rel. Ginocchio v. Shaughnessy, 47 Nev. 129, 217 P. 581
(1923); Nevada Comm'n on Equal Rights v. Smith, 80 Nev. 469, 396 P.2d 677 (1964);
Kugler v. Yocum, 445 P.2d 303 (Cal. 1968).
[Headnote 3]
3. The principal challenge, and the one that appears to have influenced the district court in
reaching its decision, rests upon the due process guaranties of the Federal and State
Constitutions.
upon the due process guaranties of the Federal and State Constitutions. The
plaintiffs-respondents' position is that the consequence of the tax is to take their property
without due process of law. The fallacy of their attack is evident, since the tax with which we
are concerned is not paid by the Macks, but, rather, it is paid by the customers who make
retail purchases in the Macks' shop. The Macks' true function is to act as the collector of the
tax, and it thus cannot be said that their property is being taken by the State. Indeed, in
Nevada, even the ad valorem tax has successfully withstood constitutional challenge upon
this ground. Washoe County Water Conservation Dist. v. Beemer, 56 Nev. 104, 45 P.2d 779
(1935). Moreover, we are aware of no authority, notwithstanding the plaintiffs-respondents'
contention to the contrary, which declares that an inequality in distribution of the tax in and
of itself is sufficient to constitute a denial of due process.
4
The plaintiffs-respondents, who
reside and have their place of business in the unincorporated area of Clark County, may well
receive substantial benefits from the tax distributed to incorporated cities within that county.
5
Cf. Thomas v. Gay, 169 U.S. 264 (1898); Washoe County Water Conservation Dist. v.
Beemer, supra; County of Mobile v. Kimball, 102 U.S. 691 (1880).
Other propositions advanced to sustain the ruling below have been considered and found
to be without merit.
We reverse and remand the case to the district court with instructions to enter judgment for
the defendants-appellants.
____________________

4
The distribution of taxes on a basis different from their collection is not unusual in Nevada. The so-called
table tax imposed by NRS 463.380 is an example, where taxes collected are distributed equally among the
counties of the State (NRS 463.320), even though, we are advised, Clark County provides 9 to 10 times as much
revenue as it receives in return, Washoe County 5 to 6 times as much, and Douglas County 2 to 3 times as much,
while other counties, several of which provide no revenue from the tax, participate in distribution. Likewise, the
cigarette license fees and tax (NRS 370.150 and 370.170) are collected at a uniform rate throughout the State,
but are distributed to the several counties and cities (NRS 370.260) in accordance with the same general formula
as is the County-City Relief Tax.

5
Surely, trade at the plaintiffs-respondents' shop is not restricted to county residents, but must include trade
with residents of the incorporated cities within the county.
____________
87 Nev. 111, 111 (1971) State ex rel. Springer v. Koontz
THE STATE OF NEVADA ex rel. HARRY SPRINGER, Petitioner, v.
JOHN KOONTZ, Secretary of State of Nevada, Respondent.
No. 6429
March 4, 1971 482 P.2d 301
Original Petition for Writ of Prohibition or in the alternative a Writ of Mandamus.
The Supreme Court held that candidate designated by political party's state central
committee in accordance with statute providing for filling of a vacancy in party nomination
for office following original nominee's death prior to general election was entitled to be
nominee for purposes of general election notwithstanding his party had also nominated only
other candidate for office of State Mining Inspector, since statute demonstrated legislative
intent that voting public should have a choice and that nomination at primary election should
not, if possible, be equivalent to absolute election.
Petition denied.
Melvin Schaengold, and Samuel T. Bull, for Petitioner.
Harvey Dickerson, Attorney General, for Respondent.
Elections.
Candidate designated by political party's state central committee in accordance with statute providing for
filling of a vacancy in party nomination for office following original nominee's death prior to general
election was entitled to be nominee for purposes of general election notwithstanding his party had also
nominated only other candidate for office of State Mining Inspector, since statute demonstrated legislative
intent that voting public should have a choice and that nomination at primary election should not, if
possible, be equivalent to absolute election. NRS 293.165, subd. 1(a), 293.260, subd. 2.
OPINION
Per Curiam:
Petitioner sought a writ of prohibition or in the alternative a writ of mandamus.
1

NRS 293.165(1)(a) provides: A vacancy occurring in a party nomination for office may
be filled by a candidate designated by the appropriate political party central committee of
the county or state, as the case may be, where:
____________________

1
At the hearing, the court ruled peremptorily that Philip Hulse be added to the ballot, formal opinion to
follow.
87 Nev. 111, 112 (1971) State ex rel. Springer v. Koontz
party nomination for office may be filled by a candidate designated by the appropriate
political party central committee of the county or state, as the case may be, where:
(a) The nominee dies after the primary election and before the general election.
Mervin Gallagher, the incumbent State Mining Inspector, had filed for re-election but died
after he was nominated together with another candidate, Harry Springer. They were the
party's nominees by reason of the fact that they received the highest number of votes of those
who filed on the Democratic ticket for the office of Nevada State Mining Inspector. Both
were members of the Democratic party. No Republican or candidates from any other party
had filed.
After Gallagher's death, the Secretary of State certified Philip Hulse as the nominee who
was proposed by the Democratic Central Committee of the State of Nevada in accordance
with the aforementioned statute. Petitioner Springer standing alone as the nominee and
therefore effectively elected to the office in the absence of an opponent, sought to keep
Hulse's name from the ballot on the allegation that no vacancy existed for Hulse's selection.
He was in error. NRS 293.260(2) provides that when only one political party had
candidates for an office, the candidates of such party who receive the highest number of votes
at such primary, not to exceed twice the number to be elected to such office at the general
election, shall be deemed the nominees for the office since only one person could be elected
to such office. The consequence of the statute therefore is to create as nominees the two
highest emerging from the primary. Only the Democratic party had candidates for the office.
Gallagher's death created a vacancy in the nominations for which NRS 293.165(1)(a)
prescribes the method of replacing a deceased nominee.
Plainly, the purpose of the statute making provision for a replacement in the event of death
of a nominee is to remove as much as possible the possibility that a nomination at a primary
election be equivalent to absolute election. The legislators obviously desire to give the voting
public a choice.
The petition is denied.
____________
87 Nev. 113, 113 (1971) Wagoner v. Sheriff
JAMES RAYMOND WAGONER, Appellant, v. SHERIFF,
No. 6437
March 4, 1971 482 P.2d 296
Appeal from an order of the Eighth Judicial District Court, Clark County, denying pretrial
habeas; Thomas J. O'Donnell, Judge.
Pretrial habeas corpus proceeding challenging indictment charging possession of
marijuana. The district court denied relief, and petitioner appealed. The Supreme Court held
that arresting officer's testimony that he had prior experience with marijuana and had seen the
substance on numerous occasions, that he examined substance recovered from petitioner and
that in his opinion it appeared to be marijuana based on its odor, texture, etc., satisfied
standard of probable cause necessary to support indictment charging possession of marijuana.
Affirmed.
Wiener, Goldwater & Galatz, and Herbert L. Waldman, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, Roy A. Woofter, District Attorney, and
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
Indictment and Information.
Arresting officer's testimony that he had prior experience with marijuana and had seen the substance on
numerous occasions, that he examined substance recovered from petitioner and that in his opinion it
appeared to be marijuana based upon its odor, texture, etc., satisfied standard of probable cause necessary
to support indictment charging possession of marijuana. NRS 172.135, subd. 2.
OPINION
Per Curiam:
The appellant was indicted by the grand jury on a charge of two counts of possession of
marijuana. He filed a petition for a writ of habeas corpus which challenged the indictment on
the grounds that there was insufficient evidence to constitute probable cause to believe that
the offense charged had been committed.
At the grand jury proceedings the arresting officer testified that he had been employed by
the sheriff's office for approximately nine years, and that he was working with the narcotics
detail at the time of the appellant's arrest. He further testified that he had prior experience
with marijuana, having seen the substance on numerous occasions since the year 1964.
87 Nev. 113, 114 (1971) Wagoner v. Sheriff
that he had prior experience with marijuana, having seen the substance on numerous
occasions since the year 1964. He testified that he examined the substance recovered from the
appellant, and in his opinion it appeared to be marijuana based upon its odor, texture, etc.
He testified that the substance recovered from the appellant's residence appeared to be
marijuana and that there was nearby a pipe, a brown smoking pipe . . . filled with what
appeared to be marijuana, to the brim.
The appellant contends that NRS 172.135(2)
1
requires the presentation of the testimony
of a qualified expert before a valid indictment can be returned; and that, further, because there
was no representation by the appellant that the substances were marijuana, the testimony of
the arresting officer was insufficient to constitute probable cause to believe that an offense
had been committed. We reject that contention and affirm the district court's order denying
habeas.
Substantially the same argument was made and rejected in Zampanti v. Sheriff, 86 Nev.
651, 473 P.2d 386 (1970). Although in that case the appellant represented to the arresting
officer that the substance was marijuana, and the issue was thus not properly before us on
appeal, we said by way of dictum . . . the testimony of a qualified police officer satisfies the
standard of probable cause necessary to support the indictment.
Affirmed.
____________________

1
NRS 172.135(2) reads: The grand jury can receive none but legal evidence, and the best evidence in
degree, to the exclusion of hearsay or secondary evidence.
____________
87 Nev. 114, 114 (1971) Ambrose v. First Nat'l Bank of Nev.
ELIZABETH ANN AMBROSE, Appellant, v. FIRST NATIONAL BANK OF NEVADA,
Executor of the Estate of Elizabeth F. Ambrose, Deceased, Respondent.
No. 6276
March 5, 1971 482 P.2d 828
Appeal from an order of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Proceeding on petition to terminate an inter vivos trust. The district court entered an order
refusing to terminate the trust, and petitioner appealed. The Supreme Court, Thompson, J.,
held that sole beneficiary of a trust which did not qualify as a spendthrift trust had a right to
termination of the trust and termination would not be denied for fear of frustrating settlor's
intent, when net result of such refusal would be to continue trust for sole benefit of
trustee.
termination would not be denied for fear of frustrating settlor's intent, when net result of such
refusal would be to continue trust for sole benefit of trustee.
Reversed, with direction to enter judgment in accordance with this opinion. Costs
are allowed to the appellant.
[Rehearing denied March 30, 1971]
Zenoff, C. J., and Mowbray, J., dissented.
Peter Chase Neumann, of Reno, for Appellant.
McDonald, Carano, Wilson & Bergin and Gary A. Wood, of Reno, for Respondent.
1. Trusts.
Sole beneficiary not under an incapacity may compel trust termination before period fixed for its duration
has expired, if continuance of the trust is not necessary to carry out a material purpose.
2. Trusts.
A spendthrift trust may be created only for a person or persons other than the settlor. NRS 166.040.
3. Trusts.
A trust that does not provide for application for or payment to any beneficiary of sums out of capital or
income does not qualify as a spendthrift trust, within the Spendthrift Trust Act and such trust may be
anticipated, assigned or alienated by the beneficiary voluntarily. NRS 166.120, subd. 1.
4. Trusts.
A trust which does not provide for the support and maintenance of the beneficiary may not qualify as a
spendthrift trust under the Spendthrift Trust Act, and is subject to general law regarding early termination
at request of beneficiary.
5. Trusts.
A trust for sole benefit of donor's daughter was not a spendthrift trust within contemplation of
Spendthrift Trust Act, where the trust did not provide for support and maintenance of beneficiary, even
though trust provided that no beneficiary might assign, transfer or anticipate any income therefrom.
6. Judgment.
A district court order allowing bank to pay discretionary sums to beneficiary for her support did not
preclude beneficiary from seeking termination of trust in a subsequent proceeding where validity of the
trust as a spendthrift trust was not raised in the prior proceeding and where right of beneficiary to compel
an early termination was not an issue in such prior proceeding.
7. Trusts.
Sole beneficiary of a trust which did not qualify as a spendthrift trust had a right to termination of the
trust and termination would not be denied for fear of frustrating settlor's intent, when net result of such
refusal would be to continue trust for sole benefit of trustee.
8. Trusts.
Principle that a court will not direct termination prior to time fixed therefor, even though beneficiary
desires to terminate, since that would be contrary to purpose of trust settlor would not be arbitrarily applied
to deny termination to daughter of settlor where no reason was expressed in the trust instrument for
delaying daughter's enjoyment following settlor's death, no provision was made in the trust for daughter's
support between ages of 21 and 28, and should daughter die during that period of time she would be denied
enjoyment of the corpus.
9. Property.
There is a strong public policy against restraining one's use and disposition of property in which no other
person has an interest.
OPINION
This appeal is from an order of the district court refusing to terminate an inter vivos trust.
The petition to terminate was presented to the court by the sole beneficiary, Elizabeth Ann
Ambrose, and was based upon the proposition that the trust had become a dry trust since its
material purpose had been accomplished. The trust was created in 1953 by the petitioner's
mother, Elizabeth Fenno Ambrose, for the declared purpose of preventing the dissipation of
her assets and contains a spendthrift provision that no beneficiary of the income or principal
of the trust property or any share or any part thereof may at any time assign, transfer,
anticipate or create any lien upon the principal or income of the trust property or any interest
therein. The First National Bank of Nevada was named trustee and was given the power to
invade the principal for the support and maintenance of the settlor and her daughter, Elizabeth
Ann, until the daughter became 21 years old. Thereafter, no provision was made for the
support of the daughter except upon direction of her mother, the settlor. The trust was to
continue after the death of the settlor, and when the daughter became 28 years old she was to
receive one half of the corpus and upon attaining the age of 35 she was to receive the
remainder, and the trust would end.
[Headnotes 1, 2]
When the mother died in 1969 her daughter was sui juris and under no physical or mental
disability. Since the trust instrument did not provide for the daughter's support after she had
reached the age of 21 and until she became 28, the Bank petitioned the court for an order
allowing the payment of discretionary sums to the daughter, asserting that the trust
instrument was ambiguous as to whether such payments could be made.
instrument was ambiguous as to whether such payments could be made. The petition did not
state in what respect the instrument was ambiguous, nor did the court, in granting the Bank's
petition, point to any ambiguity. The daughter, who had notice of that proceeding, did not
object to the Bank's request for authority to pay discretionary sums for her support. She did,
however, at age 23, commence the instant proceeding to terminate the trust. The adversaries
agree that the sole beneficiary of a trust, who is not under an incapacity, may compel its
termination before the period fixed for its duration has expired, if continuance of the trust is
not necessary to carry out a material purpose. Rest. Second Trusts 337, Comment a at 158
(1959). Moreover, they agree that the attempt by the mother to create a spendthrift trust for
herself was ineffective since such a trust may only be created for a person or persons other
than the settlor.
1
NRS 166.040.
2
However, the Bank does contend that a valid spendthrift
trust was created with respect to the daughter and that its purpose had not been realized
and termination before the period fixed for its duration has expired is, therefore,
improper.
____________________

1
The mother's desire to protect her estate against her own propensity to spend recklessly is firmly established
by the preamble of the trust instrument, executed when her daughter was but six years of age. The preamble
reads:
Whereas, George K. Livermore has in his custody and under his management and control the property and
securities, except for the real property, listed in Schedule A, attached hereto and made a part hereof, and has
from time to time invested and reinvested the securities in said Schedule A and has paid over from time to
time the net income from said securities to the Grantor; and
Whereas, the said property and securities listed in said schedule are the sole property of the Grantor; and
Whereas, the Grantor has incurred numerous debts and liabilities over the past few years and at the present
time, and in payment of such debts and liabilities has expended large sums over and above the income received
from her securities, and has required said George K. Livermore to sell large quantities of her securities and
deliver the proceeds to her for the payment and discharge of said debts and liabilities, with the result that the
property and securities belonging to the Grantor have been dissipated and their value diminished by not under
One Hundred and Ninety Thousand dollars during the past nine years; and
Whereas, the Grantor has a daughter, Elizabeth Ambrose, aged six, who is dependent on the Grantor for her
entire support and maintenance; and
Whereas, if the Grantor continues to have access to the property and securities listed in said Schedule A
she will, at the present rate of dissipation of said assets, very soon exhaust her property and securities still
remaining, with the result that both she and her daughter may become public charges.

2
NRS 166.040 reads: Any person competent by law to execute a will or deed may, by writing only, duly
executed, by will, conveyance or other writing, create a spendthrift trust in real, personal or mixed property for
any other person or persons.
respect to the daughter and that its purpose had not been realized and termination before the
period fixed for its duration has expired is, therefore, improper. This contention rests mainly
upon two words of the spendthrift clause that no beneficiary may assign, transfer,
anticipate, etc. Since the daughter is a beneficiary, the spendthrift clause applies to her. The
trust instrument is otherwise void of language suggesting that the daughter, who was six years
old when the trust was created, might become a spendthrift after reaching the age of 21 years,
and that the settlor desired to protect her against that eventuality. We do not decide whether
the Bank's position on this point has merit since the trust instrument as drawn removes this
particular trust from the Spendthrift Trust Act with the result that the daughter, as sole
beneficiary, may compel an early termination. We turn to explain why this is so.
[Headnotes 3-5]
1. The Ambrose Trust is deemed to have been drawn in the light of the Spendthrift Trust
Act, and the provisions thereof control the construction, operation and enforcement of the
trust. NRS 166.060. Several provisions of the Act point to a precondition that provision must
be made for the support and maintenance of the beneficiary before a valid restraint upon the
transfer of a beneficiary's interest may be imposed. For example, NRS 166.090 provides that
provision for the beneficiary will be for the support, education, maintenance and benefit of
the beneficiary alone. . . . NRS 166.100 states that provision for the beneficiary will extend
to all of the income of the trust estate. . . . Finally, NRS 166.120(1) excepts from the Act a
trust that does not provide for the application for or the payment to any beneficiary of sums
out of capital or corpus or out of rents, profits, income, earnings or produce of property, lands
or personalty. A trust that does not so provide may be anticipated, assigned or aliened by the
beneficiary voluntarily. The mentioned statutory sections of the Act compel the conclusion
that a trust which does not provide for the support and maintenance of the beneficiary may
not qualify as a spendthrift trust under ch. 166 and is subject to general law regarding early
termination. Since the Ambrose Trust does not provide for the support and maintenance of
the daughter after she becomes 21 years old and until she attains the age of 28, the trust must
fail as a spendthrift trust within the contemplation of the Act.
[Headnote 6]
2. The Bank contends that the prior district court order allowing the Bank to pay
discretionary sums to the beneficiary for her support somehow precludes the beneficiary
from seeking an early termination of the trust in this proceeding.
allowing the Bank to pay discretionary sums to the beneficiary for her support somehow
precludes the beneficiary from seeking an early termination of the trust in this proceeding.
This contention is not sound. The validity of the trust as a spendthrift trust was not raised in
the prior proceeding. Neither was the right of the beneficiary to compel an early termination
an issue. Consequently, the doctrines of res adjudicata and collateral estoppel are not
involved and the beneficiary is not foreclosed from asserting her right to an early termination.
Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). The prior order did not cure the defect in the
trust instrument nor was it intended to do so. The trust did not become a valid spendthrift
trust for the daughter by reason of court authorization for her support. At that point in time
the daughter enjoyed the right to compel an early termination and receive the entire trust
estate. She had not yet asserted that right. The court possessed the power to provide for her
support until she elected to exercise her right to terminate the trust, since her right to the
entire corpus embraces her right to support.
[Headnote 7]
3. We perceive no material purpose to be served by the continuation of this trust. Since it
does not qualify as a spendthrift trust for reasons already expressed, the beneficiary may
anticipate, assign or alienate her interest therein. NRS 166.120(1). Were she to do so the
settlor's intent would, perhaps, be frustrated. With this in mind it would appear absurd to
refuse termination for fear of frustrating the settlor's intent, when the net result of such refusal
is to continue the trust for the sole benefit of the trustee.
[Headnotes 8, 9]
We are not persuaded that the doctrine of the leading American case of Claflin v. Claflin,
20 N.E. 454 (Mass. 1889), should rule the trust before us. That case announced the principle
that a court will not direct termination prior to the time fixed therefor, even though the
beneficiary desires to terminate, since this would be contrary to the purpose of the settlor.
This, we think, is an arbitrary view when applied automatically and without regard to all of
the settlor's underlying motives. Here, the overriding purpose of the settlor was to protect her
estate against her own improvidence. This forcefully appears from the recitals of the trust
instrument. No reason is expressed in the trust instrument for delaying the daughter's
enjoyment following the settlor's death. No provision is made therein for the daughter's
support between the ages of 21 and 28. Should the daughter die during that period of time
she would be denied enjoyment of the corpus.
the daughter die during that period of time she would be denied enjoyment of the corpus. All
of these factors together with a strong public policy against restraining one's use and
disposition of property in which no other person has an interest [Warner v. Keiser, 177 N.E.
369 (Ind. 1931); Simmons v. Northwestern Trust Co., 162 N.W. 450 (Minn. 1917); Rector v.
Dalby, 71 S.W. 1078 (Mo. 1903); In re Africa's Estate, 59 A.2d 925 (Pa. 1948)] leads us to
conclude that termination should be decreed and the beneficiary spared the expense incident
to the continued administration of the trust. The Bank, within a reasonable time, shall furnish
to the beneficiary a final accounting in accordance with appropriate provisions of the Uniform
Trustees Accounting Act and this trust shall thereafter be terminated and the trust estate
delivered and transferred to Elizabeth Ann Ambrose, the sole beneficiary.
Reversed, with direction to enter judgment in accordance with this opinion. Costs are
allowed to the appellant.
Batjer and Gunderson, JJ., concur.
Zenoff, C. J., and Mowbray, J., dissenting.
We respectfully dissent. The trust in question is a valid spendthrift trust as regards the
appellant; a material purpose of the trust remains to be accomplished; and the appellant is
collaterally estopped from asserting the trust does not provide for payments to her. For these
reasons, the decision of the lower court should be affirmed.
1. Appellant urges that the trust is invalid since it was invalid as regarded her mother as
an attempt to establish a spendthrift trust for oneself. Appellant does not argue that the trust
was void ab initio, however, so the question is not determined by its earlier validity or
invalidity with regard to her mother. Coughran v. First Nat'l Bank of Baldwin Park, 64 P.2d
1013 (Cal.App. 1937); 2 G. Bogert, Law of Trusts and Trustees, 223 (2d ed. 1965). The
sole question with respect to this issue is whether the trust is a spendthrift trust as regards the
appellant.
The answer to this question is determined by the Spendthrift Trust Act (NRS Chapter
166). NRS 166.020 defines a spendthrift trust as a trust in which by the term thereof a
valid restraint on the voluntary and involuntary transfer of the interest of the beneficiary is
imposed. Appellant does not question the validity of the trust as regards herself (for example
as a fraud against creditors), and as was indicated, its validity or invalidity as regarded her
mother does not determine this question.
question. Instead, she asserts that the trust was not intended to operate as a spendthrift trust as
to her.
Though the preamble to the trust speaks only of the intent to restrain her mother's
spending, the body of the trust instrument was fashioned to restrain the appellant's spending
also. She is to receive money out of the trust only at the discretion of the trustee until she
reaches age 28, and she is precluded from assigning, transferring, anticipating or creating a
lien upon her interest in the trust. NRS 166.050 indicates that no magic words are necessary
for the creation of a spendthrift trust.
1

2. By use of these words, a restraint is imposed on the voluntary and involuntary transfer
of the appellant's interest within NRS 166.020. The material purpose of the trust remains to
be accomplished so the appellant may not terminate it even though she is the sole living
beneficiary. IV A. Scott, Law of Trusts, 337.3 (3d ed. 1967). Under NRS 166.090 the
existence of a spendthrift trust does not depend upon the character, capacity, incapacity,
competency or incompetency of the beneficiary. It is not for us to decide the wisdom of the
creation of the spendthrift trust as to the appellant, nor are those cases pertinent that allow
beneficiaries to terminate an ordinary trust where the beneficiaries consent to a termination
because the purposes of the trust are fulfilled. A spendthrift trust is special, one that is
established usually to prevent the beneficiary from becoming impoverished.
The purpose of this trust, at least it so appears, was to protect the daughter from
experiencing what was happening to her mother. Such material purpose does not allow the
beneficiary to reach the trust fund. The material purpose of this trust has not been served as to
the daughter, and for that reason alone she cannot terminate the trust. Some states have
judicially declared policies against spendthrift trusts (see 2 G. Bogert, Law of Trusts and
Trustees, 222, 224 (2d ed. 1965)) but the legislature in this state has chosen to sanction
them and we must follow that direction.
3. Furthermore, the only statutory exception to the general rule of anticipation of the trust
according to NRS 166.120 exists when the trust does not provide for payments to the
beneficiary.2 Appellant contends that even if the trust is a valid spendthrift trust as
regards her, she may anticipate her interest in it because it does not provide for payments
to her.
____________________

1
NRS 166.050. No specific language necessary for creation of trust. No specific language is necessary for
the creation of a spendthrift trust. It is sufficient if by the terms of the writing (construed in the light of this
chapter if necessary) the creator manifests an intention to create such a trust.
beneficiary.
2
Appellant contends that even if the trust is a valid spendthrift trust as regards
her, she may anticipate her interest in it because it does not provide for payments to her. The
answer to this contention is that the trust does provide for the necessary payments. In
November, 1969, a judgment was entered in the Second Judicial District Court, Washoe
County, declaring that the respondent was empowered to pay the appellant discretionary sums
under the trust instrument. The judgment recites that the appellant had notice of the
respondent's petition to the court. She did not contest the propriety of that judgment and may
not now act in disregard of it.
In Clark v. Clark, 80 Nev. 52, 56, 389 P.2d 69 (1964), this court stated: On the other
hand, collateral estoppel (estoppel by record) may apply even though the causes of action are
substantially different, if the same fact issue is presented. See also Anno., 24 ALR3d 318
(1969). This rule applies here to bar the appellant's right to claim relief under NRS
166.120(1).
The November, 1969, judgment declared that the trustee was empowered to pay the
appellant discretionary sums out of the trust under the ambiguous trust instrument. The
appellant's assertion that she may anticipate recovery of her interest in the trust is founded
upon the contention that the trust makes no provision for payments to her. She thus attacks
collaterally the earlier judgment made in a proceeding of which she had notice. Allowing her
to do so flies in the face of the well-reasoned rule announced in Clark. While it is true, as the
majority indicates, that the earlier judgment did not determine the right of the appellant to
compel an early termination of the trust, that judgment did make a finding which determines
the outcome of this action.
It is well settled that judgments entered in probate proceedings are entitled to be treated as
res judicata. Lucich v. Medin, 3 Nev. 93 (1867); 1 Banc. Prob. Prac. 129 (1950); 46
Am.Jur.2d, Judgments 623 {1969).
____________________

2
NRS 166.120. Principle governing construction: Restraints on alienation.
1. A spendthrift trust as defined in this chapter restrains and prohibits generally the assignment, alienation,
acceleration and anticipation of any interest of the beneficiary under the trust by the voluntary or involuntary act
of the beneficiary, or by operation of law or any process or at all. An exception is declared, however, when the
trust does not provide for the application for or the payment to any beneficiary of sums out of capital or corpus
or out of rents, profits, income, earnings, or produce of property, lands or personalty. In such cases, the corpus
or capital of the trust estate, or the interest of the beneficiary, therein, may be anticipated, assigned or alienated.
. . . (Emphasis added.)
Am.Jur.2d, Judgments 623 (1969). The appellant thus may not re-litigate this question
merely because she was a noncontesting party to a probate proceeding.
This case is comparable to In re Freman's Estate, 8 Cal. Rptr. 311 (Cal.App. 1960), where
the beneficiary was barred from contesting the propriety of the trustee's first accounting on
the assertion that it had improperly refused to make retroactive payments out of the trust. The
trustee had earlier sought court instructions on the distribution of the trust and was told to
make distributions prospectively only. The later attack upon the trustee's accounting was
viewed as a collateral attack on the earlier judgment and as such was held to be prevented by
collateral estoppel. So also should the collateral attack presented here be prevented.
For the foregoing reasons, we respectfully dissent and urge that the judgment of the trial
court should be affirmed.
____________
87 Nev. 123, 123 (1971) Wilkerson v. State
WILLIAM R. WILKERSON, Appellant, v. THE STATE
No. 6289
March 5, 1971 482 P.2d 314
Appeal from judgment of convictions of assault with intent to kill and assault with a
deadly weapon. Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
The Supreme Court, Zenoff, C. J., held that where defendant, although intoxicated, held
gun against persons of police officers and threatened to kill them, innocent verdict could not
be supported and failure to define assault was harmless error.
Affirmed.
Robert G. Legakes, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Larry C. Johns,
1. Assault and Battery; Homicide.
Assault is essential element of offenses of assault with intent to kill and assault with deadly weapon with
intent to commit bodily injury. NRS 200.400, subds. 1, 2.
2. Criminal Law.
Term assault must be defined for jury in prosecution for assault with intent to kill and assault with
deadly weapon with intent to commit bodily injury. NRS 200.400, subds. 1, 2.
3. Assault and Battery.
Assault is unlawful attempt coupled with present ability to commit violent injury on person of another;
mere menace is not enough, there must be effort to carry the intention into execution. NRS 200.470.
4. Criminal Law.
Where defendant, although intoxicated, held gun against persons of police officers and threatened to kill
them, innocent verdict could not be supported and failure to define assault was harmless error in
prosecution for assault with intent to kill and assault with intent to commit violent injury on person of
another. NRS 200.400, subds. 1, 2, 200.470.
Instruction that before jury might convict defendant of assault with deadly weapon it must find that he
committed an assault with a deadly weapon with intent to inflict upon the person of another bodily injury
sufficiently directed jury to consider specific intent although the word specific was not used. NRS
200.400, subds. 1, 2.
Where it was established that defendant shot police officer in the rib cage, defendant was not entitled to
advisory verdict on ground that state failed to prove that the injuries were to vital parts of the victim's body.
NRS 175.381, 193.220.
7. Criminal Law.
Judicial notice would be taken of fact that rib cage is vital part of the human body.
8. Criminal Law.
Evidence that defendant, although drunk, carefully disarmed officers, watched them while holding gun
against them, ordered them around under threats and was capable of harming them, did not warrant
submission to jury of issue of inability to form intent to commit assault to kill because of intoxication.
NRS 193.220.
OPINION
William Wilkerson was charged on August 6, 1968 with the attempted murder and assault
with intent to kill Jerry Zohner, a North Las Vegas policeman. He was also charged with
assault with intent to kill Thomas Fay and Cleveland Avery, also North Las Vegas policemen.
He was convicted of assaulting officer Zohner with intent to kill and of assaulting Avery and
Fay with a deadly weapon and was sentenced to 13 years in prison. He appeals these
convictions.
On August 2, 1968, at or about 7:30 a.m., Wilkerson, his brother-in-law and a friend,
commenced a drinking bout that continued throughout the day. They consumed large
quantities of alcohol, including beer, scotch and whiskey, mixing all three at all of the times
and places of their orgy. At the time of the incident to be related his blood alcohol content
was .274 which considering that .150 determines intoxication made him very drunk.
Very late in the afternoon, but before dinner, he fired his small pistol twice to convince a
friend that it was not a toy. The shots caused the police to investigate the disturbance.
Officers Fay and Avery arrived first. Having been forewarned that the police were probably
coming, Wilkerson removed an unloaded hunting rifle from his trunk and was carrying it in
his left hand when the police officers came upon the scene. The Derringer, with one live
round in it, was in his pocket. Upon arrival of the police car Wilkerson walked over to it,
pulled the Derringer pistol from his pocket and ordered the officers from the car. He disarmed
Fay and Avery by placing his gun against their persons and threatened to kill them if they did
not obey his orders. Officer Zohner drove up in his squad car which he parked nearby.
Wilkerson pointed his gun at Zohner and threatened to kill him while placing his gun against
Fay, thus, forcing Zohner to disarm.
Officer Moody arrived and parked his unmarked car behind Zohner's. Unaware of what
was taking place, Moody approached the scene and called out to Zohner when he was about
50 feet away. Zohner was unable to answer. Moody approached closer, noticed Wilkerson's
gun, then returned to his patrol car to call in and report the incident. Wilkerson approached
Moody with his gun pointing at Moody, whereupon Moody drew his own gun and the
shooting started. Who fired first is not clear, but officer Zohner was shot by Wilkerson in the
back rib cage and in the hip.
Wilkerson appeals his conviction asserting error in the trial court's giving and failing to
give certain instructions.
[Headnotes 1, 2]
1. He first complains that assault being an essential element of the crimes of which he is
convicted, assault with intent to kill, NRS 200.400(1), and assault with a deadly weapon with
intent to commit bodily injury, NRS 200.400(2), the term should have been defined for the
jury. He is correct. State v. Harvey, 62 Nev. 287, 148 P.2d 820 (1944). Throughout all of the
pertinent instructions the word assault is used, but is nowhere defined. In one instruction,
No. 5, the court directed the jury that, "You must find from the evidence that he committed
acts constituting
assault. . . ."
the jury that, You must find from the evidence that he committed acts constituting
assault. . . . Yet how the jury is to recognize those facts is not stated.
The question immediately becomes one of degree. We must ask whether in the light of all
the facts failure to define assault is patently prejudicial (Garner v. State, 78 Nev. 366, 373,
374 P.2d 525 (1962)), and the court must give the instruction sua sponte (cf. Mears v. State,
83 Nev. 3, 11, 422 P.2d 230 (1967)), or whether the error must be deemed harmless.
[Headnote 3]
In Nevada assault is an unlawful attempt coupled with present ability to commit a violent
injury on the person of another. NRS 200.470. Mere menace is not enough. There must be an
effort to carry the intention into execution. State v. Huber, 38 Nev. 253, 268, 148 P. 562
(1915).
[Headnote 4]
Despite Wilkerson's testimony that he meant no harm his actions contradict his words.
Drunk as he was, nevertheless, he clearly came within the definition of the elements that
constitute assault. He held the gun against the persons of Fay and Avery and threatened to kill
them. In State v. Smith, 10 Nev. 106, 116 (1875), a conviction was affirmed because the
defendant cocked his gun, put it to his shoulder and advanced toward the other person. The
state of the facts abundantly reveals the failure to define assault as harmless error. Chapman
v. California, 386 U.S. 18, 23 (1967). Where there is doubt of the accused's guilt we would
be inclined to grant a new trial. However, this record is clear. An innocent verdict could not
be supported. Pacheco v. State, 82 Nev. 172, 179, 414 P.2d 100 (1966). Nor could an
innocent verdict be supported here.
[Headnote 5]
2. Wilkerson also urges the instruction given did not sufficiently emphasize the specific
intent required to be shown to prove the crimes charged. This assertion is not well-founded.
The instructions here given did not improperly lead the jury to consider only general intent as
in Graves v. State, 82 Nev. 137, 142, 413 P.2d 503 (1966); State v. Pappas, 39 Nev. 40, 152
P. 571 (1915); and People v. Hill, 429 P.2d 586, 594 (Cal. 1967). The instruction objected to
directed the jury that before it might convict Wilkerson of assault with a deadly weapon it
must find that he committed an assault with a deadly weapon with the intent to inflict upon
the person of another a bodily injury. . . . Though the word specific is not used, the
instruction sufficiently directs the jury to consider specific intent.
instruction sufficiently directs the jury to consider specific intent.
[Headnotes 6, 7]
3. Wilkerson shotguns other issues, none of which are sufficiently meritorious to
warrant reversal. It was not error to refuse the request for an advisory verdict (NRS 175.381;
State v. Corinblit, 72 Nev. 202, 298 P.2d 470 (1956); Cook v. State, 74 Nev. 51, 321 P.2d
587 (1958)), because the state failed to prove that Zohner's injuries were to vital parts of his
body. Citations of authority are not needed to convince us that the rib cage is a vital part of
the human body.
[Headnote 8]
4. The appellant also protests deficiencies of instructions relating to intoxication, but he
cannot bypass his own conduct. Though drunk, he acted deliberately and with full intent. His
actions spoke his state of mind. He carefully disarmed the officers, watched them while
holding the gun against them, ordered them around under threats and was capable of harming
them. It was apparent that he intended to do so if he was not obeyed. The jury was otherwise
well instructed. State v. Alsup, 69 Nev. 121, 243 P.2d 256 (1952); NRS 193.220.
Affirmed.
____________
87 Nev. 127, 127 (1971) Continental Casualty Co. v. Summerfield
CONTINENTAL CASUALTY COMPANY, Appellant, v. MARY WINSLOW
SUMMERFIELD, Special Administratrix of the Estate of LESTER D. SUMMERFIELD,
Deceased, Respondent.
No. 6200
March 9, 1971 482 P.2d 308
Appeal from a judgment of the Second Judicial District Court, Washoe County; Thomas
O. Craven, Judge.
Action by special administratrix of estate of insured to recover visiting nurse expense
benefits under hospitalization policies. The district court entered judgment for plaintiff, and
insurer appealed. The Supreme Court, Compton, D. J., held that term visiting nurse, in
hospitalization policies, included any registered or licensed practical nurse qualified under
state law, notwithstanding provision in the policy defining "visiting nurse" as a nurse
accredited by public health nursing agency, where it was legally impossible for the agency
to qualify nurses and nurses employed by a hospital were qualified within terms of one
policy though not accredited by the agency.
defining visiting nurse as a nurse accredited by public health nursing agency, where it was
legally impossible for the agency to qualify nurses and nurses employed by a hospital were
qualified within terms of one policy though not accredited by the agency. The court further
held that fact that nurses billed insured directly and were paid directly by insured rather than
billing insured through visiting nurses society was not variation of hospitalization policies of
sufficient substance to void insurer's responsibility, in absence of claim by insurer that it
suffered damage or loss by reason of actual billing and payment.
Affirmed.
Vargas, Bartlett & Dixon, and Albert F. Pagni, of Reno, for Appellant.
Breen, Young, Whitehead & Hoy, and Milos Terzich, of Reno, for Respondent.
1. Insurance.
A policy of insurance is a contract, which must be enforced according to its terms, and the burden of
proof is upon the claimant.
2. Insurance.
Object of interpretation of an insurance policy is to determine intent of parties so that contract may be
given effect consistent with parties' real intent and purpose.
3. Insurance.
Insurer, which drew hospitalization policy was presumed to have issued it in the light of state law.
4. Insurance.
Term visiting nurse within hospitalization policy providing coverage for visiting nurse defined as nurse
accredited by public health nursing agency located in community where insured resided or was being
treated descriptio personae, adjective rather than nominal; a nurse employed to give medical care to the
sick in their homes, as distinguished from nurses employed in a hospital or skilled nursing home.
5. Insurance.
Term visiting nurse, in hospitalization policies, included any registered or licensed practical nurse
qualified under state law, notwithstanding policy provision defining visiting nurse as a nurse accredited
by public health nursing agency, where it was legally impossible for the agency to qualify nurses and nurses
employed by a hospital were qualified within terms of one policy though not accredited by the agency.
NRS 632.010 et seq.
6. Insurance.
Fact that nurses billed insured directly and were paid directly by insured rather than billing insured
through visiting nurses society was not variation of hospitalization policies of sufficient substance to void
insurer's responsibility, in absence of claim by insurer that it suffered damage or loss by
reason of actual billing and payment.
insurer that it suffered damage or loss by reason of actual billing and payment.
7. Insurance.
Contractual responsibility may not be eroded or shaved away by merely technical contentions when they
have no foundation in reality, and policies must be read in light of salient facts and against background of
understanding of local community.
OPINION
By the Court, Compton, D. J.:
Defendant Continental Casualty Company, hereafter for convenience referred to as Insurer,
appeals from an adverse trial court judgment. The respondent is the special administratrix of
the Estate of Lester D. Summerfield, deceased. The decedent will be hereafter referred to as
Insured.
The cause was submitted to the trial judge on a stipulation covering facts agreed upon and
the contentions in issue.
Effective July 1, 1962, Insurer issued two policies to Insured. One, denominated a $10,000
Reserve Policy, numbered 27D0000105, contained a Visiting Nurse Expense clause which
read as follows: The reasonable expense actually incurred by the Insured for the visit of a
visiting nurse at the residence of the Insured up to a dollar limit of $6.50 per visit and up to
one such visit per day, for which a charge is made by the Public Health Nursing Agency with
whom the visiting nurse is accredited. The policy defines visiting nurse as follows:
Visiting Nurse' means a nurse accredited by the Public Health Nursing Agency located in the
community where the Insured resides or is being treated. The policy also contained a $500
annual deductible clause, and covered 75 percent of the excess.
A second, denominated a $5,000 Medical Policy numbered 27E0000105, contained no
visiting nurse expense benefits; however, effective April 1, 1965, a Visiting Nurse Expense
Rider was added to No. 27E0000105. It defines Visiting Nurse in these words: Visiting
Nurse' means a nurse accredited by the Public Health Nursing Agency located in the
community where the Insured resides or is being treated, or a nurse employed by a hospital.
(Emphasis added.) This policy and rider were subject to a $100 annual deductible amount,
and covered 75 percent of the excess.
Both policies were in full force and effect through November 7, 1966, the date of the death
of Insured.
Expenses for nursing services in Insured's home were incurred during the years 1965 and
1966. During this period nurses were employed through the local Washoe County Medical
Society of Visiting Nurses, and the Nurses Registry. Two of the nurses were employed
through the Visiting Nurses Service and the remainder through the Nurses Registry. The
employment through the Visiting Nurses Service was billed through that service. The
remainder was billed by the nurse.
The Visiting Nurses Society hires licensed practical nurses and registered nurses on a full
time basis, and they render services as such solely between the hours of 8:00 a.m. and 5:00
p.m. daily; however, there is no prohibition against its employees rendering similar services
while off duty. The nurses have the same qualifications as licensed practical nurses and
registered nurses engaged through the Nurses Registry or private duty nurses. Licensed
practical nurses and registered nurses may be employed through the Nurses Registry. It is
conceded by Insurer that the terms visiting nurse, visiting nurses association and nurses
registry are generally unknown in the community to nonmedical persons.
The trial court rendered judgment for the plaintiff, special administratrix, in the sum of
$4,037.49, under both policies, together with attorneys fees and costs.
The appellant assigns the following as error:
1. Respondent failed to carry her burden of proving that all the expenses incurred by the
insured were such as come within the coverage of each policy.
2. The court erred as a matter of law in the interpretation of each of the insurance
contracts.
3. The award of the judgment is not supported by the Findings of Fact and Conclusions of
Law.
Assignment No. 3 is wholly without merit since it is conceded that as to each policy an
expense was actually incurred for nursing services by the Insured, and we believe that
determination of No. 2 will effectively dispose of the question raised in Assignment No. 1.
Insurer lists eight so-called issues on appeal. Some are settled by stipulation of facts; the
others we believe will be resolved by our consideration of Assignment of error No. 2.
Insurer, in effect, admits that had all nurses been employed through the Visiting Nurses
Service and their services billed for by that agency, the plaintiff's claim would be proper.
Here, however, as below, Insurer contends that only the nurses hired through the Washoe
County Medical Society of Visiting Nurses comply with the policy requirements.
comply with the policy requirements. Liability is denied for the visits of any others.
Insurer has stipulated that the terms visiting nurse, visiting nurses association and
nurses registry, are generally unknown in the local community to nonmedical persons, and
the trial court so found, but it asserts that this fact is irrelevant and immaterial.
The trial court found the following facts and adopted it as a conclusion of law, i.e.:
13. That there is no distinction in fact or in law differentiating between visiting nurse,'
visiting nursing association' and nurses registry' in this case, and in this community, and that
fairness deems, and the facts require, a finding that the Plaintiff should be paid in the amount
guaranteed by the contract.
The determinative issue in the case evolves from this finding and conclusion. We agree
with this finding and conclusion and affirm the judgment of the trial court.
[Headnotes 1, 2]
Without question, a policy of insurance is a contract, which must be enforced according to
its terms, and the burden of proof is upon the claimant. Healey v. Imperial Fire Ins. Co., 5
Nev. 268 (1869). However, as Insurer aptly points out, the object of the interpretation of an
insurance policy is to determine the intent of the parties so that the contract may be given
effect consistent with the parties' real intent and purpose (citing Home Indemnity Co. v.
Desert Palace, Inc., 86 Nev. 234, 468 P.2d 19, 21 (1970)), but this court further said there:
[T]he intention of the parties should control and the terms of the clause should be taken and
understood in their plain, ordinary and popular sense. . . . In determining the intent of the
parties a court should consider all the salient facts. . . . If . . . there is room for construction or
doubt, the benefit of the doubt must be given to the assured. (Citing Richfield Oil Corp. v.
Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969), and Gerhauser v. North British and Merc.
Ins. Co., 7 Nev. 174, 185 (1871).) Insurer contends that there is no room for doubt; that the
trial court created the doubt if there be any, and that such terms as accredited, visiting
nurse or nurse employed by a hospital should be given their literal meaning as set forth in
the insurance contracts. With this we cannot agree. When the contracts are considered in the
light of stipulated facts, it is obvious that there is a need for construction. A clear
disagreement over meaning has arisen, and it does not suffice to say that one party's opinion
settled the controversy.
[Headnote 3]
Insurer, who drew the contract, must be presumed to have issued it in the light of Nevada
law. In fact, the policy provides that any provision of this policy which on its effective date
is in conflict with the statutes of the state in which the insured resides on such date, is hereby
amended to conform to the minimum requirements of such statutes.
[Headnote 4]
Insurer contends that since five of the nurses (of seven) were not employed by the hospital
or accredited by the local visiting nurses agency, they were not visiting nurses within the
meaning of the insurance contracts, and Insured was not entitled to compensation. It places
special significance on the words visiting nurse, deeming it a special class or category. We
do not so interpret it. We view it more as descriptio personae, i.e., adjective rather than
nominal; a nurse employed to give medical care to the sick in their homes, as distinguished
from nurses employed in a hospital or skilled nursing home. Under the policy itself this might
be either a registered nurse or a licensed practical nurse.
Nor do we deem the contention that the nurses must be accredited' by the public health
nursing agency to have merit. It is clear that such agency in Nevada has no power to
accredit. Webster's Twentieth Century Dictionary (1963 Ed.) defines accredit as follows:
To authorize, to give credentials to or to confer credit or authority on: to stamp with
authority. At the time of the issuance of the policies here considered, and under the
provisions of NCL 4756, et seq. and 4759, et seq. (1943-1949), now Chap. 632 NRS, sole
power and authority to examine and license both registered nurses and practical nurses was
lodged in the State Board of Nurse Examiners. Penal sanctions are imposed for failure to
comply with the provisions of the statutes. Thus it was legally impossible for the public
health agency to qualify the nurses. Further, nurses employed by a hospital were qualified
within the policy though not accredited by the public health agency. Under Nevada law,
accreditation applies to schools or institutions, not individuals.
As has been conceded by Insured, the Visiting Nurses Society provided nurses only
between the hours of 8:00 a.m. and 5:00 p.m. To interpret the policy as Insurer requests
would effectively deprive the Insured of nursing services in the local community for all hours
other than 8:00 a.m. to 5:00 p.m. This we will not do. Nowhere in the policies are the duties,
hours or responsibilities of the visiting nurses prescribed. The sole limitation is one visit per
day and a maximum of $6.50 per day.
sole limitation is one visit per day and a maximum of $6.50 per day.
[Headnote 5]
Since, under Nevada law, all nurses must be qualified and licensed prior to becoming
visiting nurses, the placement of such power in an unauthorized agency is a nullity. We hold
that a proper and liberal construction of the language of the policies requires the words
visiting nurse to include any registered or licensed practical nurse qualified under Nevada
law. Cf. Buske v. Federal Casualty Co., 227 N.W. 239 (Wis. 1929), and Reserve Life
Insurance Company v. Marr, 254 F.2d 289, 291 (9th Cir. 1958). Any other construction
would render the contracts largely meaningless.
Insurer attacks the judgment on the ground that it is not supported by finding No. 15,
which reads:
15. That under the facts of the case and the contracts of the parties, the defendant
insurance company is obligated to pay at the rate per shift for all registered nurses supplied to
the plaintiff and paid for by her regardless of the source of dispatch to the defendant's
insured. It contends that the trial court restricted recovery to those services rendered by
registered nurses only. This attack is without merit. Such error in the findings could have
been corrected by timely motion to amend, however, it is obviously a clerical error by reason
of its inconsistency with other findings as well as stipulated or conceded evidence, e.g.,
Insured conceded it was liable for visits of the two nurses employed through the visiting
nurses society who were licensed practical nurses, or as designated L.P.N.
[Headnote 6]
It has been admitted that with the exception of the two nurses initially employed through
the visiting nurses society, for whose services the society billed the Insured, all other nurses
billed the Insured directly and were paid directly by the Insured. Insurer contends that this
was such a violation of the terms of the contract as would relieve it from liability. We do not
agree. It appears obvious that such provision for billing and payment is for the protection of
the Insurer so as to prevent fraudulent claims, however, no contention is made by Insurer here
that it suffered damage or loss by reason of the actual billing and payment. Its sole contention
is that such practice violated the terms of the contract. Conceding that it was a variation of the
contract we do not feel that it was of sufficient substance to void the Insurer's responsibility.
[Headnote 7]
We deem the Insurer's assignments of error to be merely technical and unsupported by the
record. Contractual responsibility may not be eroded or shaved away by merely technical
contentions when they have no foundation in reality. The policies must be read in the light of
salient facts and against the background of the understanding of the local community. Insurer
wrote the policy and must shoulder the burden of any ambiguity. The Insured is entitled to
have it resolved in his favor.
The judgment below is affirmed.
Zenoff, C. J., Batjer, Mowbray, and Thompson JJ., concur.
____________
87 Nev. 134, 134 (1971) Peterson v. Warden
ALVIN F. PETERSON, Appellant, v. WARDEN,
No. 6046
March 25, 1971 483 P.2d 204
Appeal from an order dismissing petition for post-conviction relief and denying a motion
for the supplying of trial records at state expense. Fifth Judicial District Court, Mineral
County; Kenneth L. Mann, Judge.
Petitioner's application for relief and for copies of transcripts, judgment rolls and records
of court proceedings at state expense was denied by the district court and the petitioner
appealed. The Supreme Court held that assertions that petitioner was ineffectively
represented during the court proceedings and that involuntary statements were obtained
through coerciveness and duress failed to make the necessary threshold showing of need for
a state-supplied transcript so as to show further the merit of his appeal.
Affirmed.
Jack Christensen, of Yerington, for Appellant.
Robert List, Attorney General, and Leonard P. Root, District Attorney, Mineral County,
for Respondent.
1. Costs.
Statutes do not contemplate that records will be furnished at state expense upon mere unsupported
request of petitioner who is unable to pay for them; he must satisfy court that points raised have merit
and that such merit will tend to be supported by review of record before he may have
trial records supplied at state expense; petitioner must specifically set forth grounds
upon which petition is based.
have merit and that such merit will tend to be supported by review of record before he may have trial
records supplied at state expense; petitioner must specifically set forth grounds upon which petition is
based. NRS 177.325, 177.335, 177.345.
2. Criminal Law.
Petitioner for post-conviction relief must show that requested review is not frivolous before he may have
attorney appointed. NRS 177.345, subd. 2.
3. Criminal Law.
Assertions, upon request for copies of transcripts, judgment rolls and records of court proceedings at state
expense for use in post-conviction proceeding, that petitioner was ineffectively represented during the
court proceedings and that involuntary statements were obtained through coerciveness and duress failed
to make necessary threshold showing of need for state-supplied transcript so as to show further the merit of
his appeal, and petition for post-conviction relief and for state-supplied trial records was properly
dismissed. NRS 177.325, 177.335, 177.345.
OPINION
Per Curiam:
Appellant in this case was convicted of second degree murder in 1961 and sentenced to ten
years to life imprisonment. No post-conviction proceedings were taken from that judgment of
conviction until May 6, 1969 when this proceeding was begun under NRS 177.315. Peterson
asserts that his confinement is unconstitutional because he was ineffectively represented by
counsel and because the trial court improperly allowed the admission into evidence of
appellant's involuntary statements which were obtained through coercion and duress.
To facilitate this appeal Peterson sought to obtain copies of transcripts, judgment rolls and
records of court proceedings at state expense. From the denial of that request this appeal
follows.
In his request for these documents Peterson asserted simply that he was ineffectively
represented during the court proceedings and that involuntary statements were obtained
through coerciveness and duress. The lower court denied the request because of the failure
of the petition to allege with any particularity the basis of the attack or the need for the
records sought. Though Peterson was given thirty days in which to modify, amend or
supplement his petition he failed to do so and the petition was ordered dismissed.
[Headnotes 1, 2]
We agree with the lower court. NRS 177.325, 177.335 and 177.345 do not contemplate
that records will be furnished at state expense upon the mere unsupported request of a
petitioner who is unable to pay for them.
state expense upon the mere unsupported request of a petitioner who is unable to pay for
them. Just as the petitioner must show that the requested review is not frivolous before he
may have an attorney appointed (NRS 177.345(2)), so must he satisfy the court that the points
raised have merit and such merit will tend to be supported by a review of the record before he
may have trial records supplied at state expense. He must specifically set forth grounds upon
which the petition is based. NRS 177.335.
An indigent appellant's right to have access to a needed transcript was established in
Griffin v. Illinois, 351 U.S. 12 (1956). The protection of indigents from preclusive monetary
requirements has also been extended to other post-conviction proceedings. Smith v. Bennett,
365 U.S. 708 (1961), and Douglas v. Green, 363 U.S. 192 (1960) (docket fees in habeas
corpus proceedings). The United States Supreme Court reiterated in Eskridge v. Washington
Prison Bd., 357 U.S. 214, 216 (1958), what it had said earlier in Griffin, however, that, We
do not hold that a state must furnish a transcript in every case involving an indigent
defendant.
Indeed, other courts have held that an indigent defendant must show how the requested
papers would serve any useful purpose and how he would be prejudiced without them. Walls
v. Warden, 219 A.2d 6 (Md. 1966); State v. Sallee, 48 P.2d 770 (Ore. 1938); cf. Guerin v.
Commonwealth, 149 N.E.2d 220 (Mass. 1958); and State v. Badda, 402 P.2d 348 (Wash.
1965). Similarly, under the federal statutes analogous to the statutes here in question, the
court must consider frivolity and good faith. Durham v. United States, 400 F.2d 879
(10th Cir. 1968); H. Blackmun, Allowance of In Forma Pauperis Appeals in 2255 and
Habeas Corpus Cases, 43 F.R.D. 343 (1967). Finally, this court, too, in Teeter v. District
Court, 64 Nev. 256, 180 P.2d 590 (1947), examined the need for the defendant to show good
cause for the supplying of a transcript (though that case involved a different statute than is
central to the instant case).
[Headnote 3]
Appellant failed to make the necessary threshold showing of need for a state-supplied
transcript so as to show further the merit of his appeal. On that basis, his petition for
post-conviction relief and for state-supplied trial records was properly dismissed.
Affirmed.
____________
87 Nev. 137, 137 (1971) Stoddard v. Stoddard
FRANCES M. STODDARD, Appellant, v. ROBERT
L. STODDARD, Respondent.
No. 6347
March 25, 1971 482 P.2d 322
Appeal from order of Second Judicial District Court, Washoe County, denying motion for
a new trial; Emile J. Gezelin, Judge.
Affirmed.
Samuel B. Francovich, of Reno, for Appellant.
Frank R. Petersen, of Reno, for Respondent.
OPINION
Per Curiam:
This appeal challenges the order of the district court distributing the property interests of
the parties in a divorce proceeding.
We have reviewed the record, and it supports the award. It shall not be disturbed on
appeal. Respondent is allowed his costs.
____________
87 Nev. 137, 137 (1971) Casey v. Williams
JOHN JAY CASEY, Individually, and HOLLAND LIVESTOCK RANCH, a Co-partnership
Composed of BRIGHT-HOLLAND COMPANY, NEMEROFF-HOLLAND COMPANY,
and MAREMONT-HOLLAND COMPANY, Appellants, v. JAMES A. WILLIAMS and
ELLEN C. WILLIAMS, Respondents.
No. 6263
March 26, 1971 482 P.2d 824
Appeal from judgment and orders of Second Judicial District Court, Washoe County; John
F. Sexton, Judge.
Plaintiffs brought suit to recover damages for the conversion of approximately 40 horses.
The district court rendered judgment for plaintiffs, and defendants appealed. The Supreme
Court, Mowbray, J., held that evidence supported finding that defendant lessors, who claimed
that they rounded up horses remaining on leased premises to satisfy an agistor's lien, had
broken out lessees' horses from new location some 50 miles from leased property and had
driven them back to leased property by using low-flying plane and shotgun blasts, and
therefore had converted the horses, but that witnesses were entitled to mileage for a
single one-way trip only, and allowance of mileage for each day's attendance at trial was
error.
remaining on leased premises to satisfy an agistor's lien, had broken out lessees' horses from
new location some 50 miles from leased property and had driven them back to leased
property by using low-flying plane and shotgun blasts, and therefore had converted the
horses, but that witnesses were entitled to mileage for a single one-way trip only, and
allowance of mileage for each day's attendance at trial was error.
Affirmed as modified.
Vargas, Bartlett & Dixon and Frederic R. Starich, of Reno, for Appellants.
Paul A. Richards, of Reno, for Respondents.
1. Trover and Conversion.
Evidence supported finding that defendant lessors, who claimed that they rounded up horses remaining
on leased premises to satisfy an agistor's lien, had broken out lessees' horses from new location some 50
miles from leased property and had driven them back to leased property by using low-flying plane and
shotgun blasts, and therefore had converted the horses.
2. Trover and Conversion.
Award of $6,634 for conversion of approximately 40 horses was within permissible limits and was not
erroneous because of failure of record to show a breakdown or itemization of damages awarded for loss or
injury to each individual horse.
3. Constitutional Law; Costs.
Statute permitting defendant as prevailing party to recover attorney's fees only when plaintiff has not
sought recovery in excess of $10,000 did not constitute a denial of equal protection. NRS 18.010, subd.
3; U.S.C.A.Const. Amend. 14.
4. Costs.
$2,000 award, made under statute empowering district court to make award of attorney's fees to plaintiff
or counterclaimant who, as a prevailing party, does not recover an amount in excess of $10,000, was within
sound discretion of district judge who tried case, and award was not barred because of plaintiffs' failure to
pray for attorney's fees in their complaint. NRS 18.010.
5. Costs.
Under statute, taxing as cost against unsuccessful parties the cost of taking of deposition of a witness by
prevailing parties was improper where deposition was not used at trial. NRS 18.010.
6. Witnesses.
Under statute providing that mileage shall be allowed and paid at rate of 15 cents a mile for witnesses,
one way only, for each mile necessarily traveled from place of residence, witnesses were entitled to mileage
for a single one-way trip only, and allowance of mileage for each day's attendance at trial was error. NRS
48.290.
7. Injunction.
Under injunction which specifically enjoined defendants, who had been found to have converted
plaintiffs' horses by driving them a distance of 50 miles over rough country by means of a low-flying
airplane and shotgun blasts, from further interfering with plaintiffs' remaining herd of horses, defendants
were not enjoined from interfering with horses that court found defendants had converted and for which
they were liable for damages.
OPINION
The plaintiffs-respondents, James A. and Ellen C. Williams, commenced this action in the
district court to recover damages from the defendants-appellants for the conversion of
approximately 40 horses owned by the Williamses. The district court sitting without a jury
found in favor of the Williamses and awarded them a judgment in the sum of $6,634 plus
$2,000 attorney's fees and $765.75 for costs incurred.
1. The Facts.
The Williamses had leased from appellant Casey the Smoke Creek Ranch for a 5-year
period ending September 15, 1968. Just prior to termination of the lease, the Williamses
leased the Iveson Ranch and removed most of their stock to the new location. The appellants
claim that the Williamses left some livestock on the Smoke Creek Ranch upon which they
attempted to assert an agistor's lien and that it was only the horses remaining back at the
Smoke Creek Ranch that appellants rounded up for sale to satisfy the lien.
The Williamses' version of what transpired is quite to the contrary. They claim, and there
is substantial evidence in the record to support their contention, that their horses the subject
of the action had been corralled on the Iveson Ranch and that the appellants broke out the
horses and drove them some 50 miles back to the Smoke Creek Ranch. The horses were
driven by a small, low-flying plane and were guided or turned by shotgun blasts from the
occupants of the plane. We are told that this is one of the later and more efficient ways of
moving livestock because it is faster than the traditional method of moving the herd by
mounted horsemen. In this drive the horses were driven approximately 50 miles in 2 days
over rugged, precipitous terrain. But not without a price. One of the herd was found dead on
the trail with its throat cut by barbed wire. One Appaloosa stud and 15 Appaloosa colts never
made it back to the Smoke Creek Ranch.1 Several range horses were lost.
back to the Smoke Creek Ranch.
1
Several range horses were lost. Those that did make the
trip were injured and carried buckshot from the blasts from the plane.
2. The Sufficiency of the Evidence.
[Headnote 1]
Appellants argue that the evidence offered by respondents is so incredible as to be
unbelievable. One of the respondents' witnesses testified that he saw the low-flying plane
from the top of Wagon Tire Ridge and heard the shotgun blastsa distance of some 10 miles
from the moving herd. We are not in a position to determine whether or not such an
observation from Wagon Tire Ridge is possible, and we leave such a determination to the
sound judgment of the trier of the facts, who observed the witnesses and heard their
testimony.
2
Suffice it to say that the record reveals that several horses had buckshot in their
rumps; one was later found dead on the trail, caught up in a barbed wire fence; and, finally,
one of the Williamses' horses when found was carrying appellant Casey's brand. This is
sufficient, we believe, to satisfy the substantial evidence rule. Bangston v. Brown, 86 Nev.
653, 473 P.2d 829 (1970).
3. The Damages.
[Headnote 2]
Appellants challenge the $6,634 award on the further ground that the record does not show
a breakdown or itemization of the damages awarded for the loss or injury to each individual
horse. This is true, and while such an itemization would be helpful to the reviewing court, its
absence is not fatal to the award made in this case. The rule against the recovery of uncertain
damages is directed against uncertainty as to the existence of damages, rather than as to
measure or extent. Fireman's Fund Ins. Co. v. Shawcross, 84 Nev. 446, 442 P.2d 907 (1968).
The award of damages in this case is within permissible limits, since it finds support in the
evidence that the district judge was free to accept.
4. The Allowance of Attorney's Fees.
[Headnote 3]
Appellants attack the $2,000 award for attorney's fees on two grounds: {1) NRS
1S.010{3){c)3 is a denial of the equal protection guaranteed by the Fourteenth
Amendment to the United States Constitution, in that it permits the defendant as
prevailing party to recover attorney's fees only when the plaintiff has not sought recovery
in excess of $10,000; and {2) the district judge was barred from making the allowance in
this case because the Williamses did not pray for attorney's fees in their complaint.
____________________

1
One of the witnesses testified that this was because Appaloosa horses are sissies.

2
In this case, the trial court judge was a native, seasoned son of the West who knows well the rugged
topography of the State.
two grounds: (1) NRS 18.010(3)(c)
3
is a denial of the equal protection guaranteed by the
Fourteenth Amendment to the United States Constitution, in that it permits the defendant as
prevailing party to recover attorney's fees only when the plaintiff has not sought recovery in
excess of $10,000; and (2) the district judge was barred from making the allowance in this
case because the Williamses did not pray for attorney's fees in their complaint. We reject both
contentions. The High Court, in Missouri, Kan. & Tex. Ry. v. Cade, 233 U.S. 642, 650
(1914), ruled:
If the classification is otherwise reasonable, the mere fact that attorney's fees are allowed
to successful plaintiffs only, and not to successful defendants, does not render the statute
repugnant to the equal protection' clause. This is not a discrimination between different
citizens or classes of citizens, since members of any and every class may either sue or be
sued. Actor and reus differ in their respective attitudes towards a litigation; the former has the
burden of seeking the proper jurisdiction and bringing the proper parties before it, as well as
the burden of proof upon the main issues; and these differences may be made the basis of
distinctive treatment respecting the allowance of an attorney's fee as a part of the costs.
[Citations.]
[Headnote 4]
We wish to announce that under the prevailing statute, NRS 18.010, it is not necessary to
specifically ask in the complaint for attorney's fees. The statute empowers the district court to
make an award of attorney's fees to the plaintiff or counterclaimant who, as a prevailing party,
does not recover an amount in excess of $10,000.
4
Such an award, if made, is best left to the
sound discretion of the district judge who tries the case.
5. The Costs.
(a) The Deposition.
____________________

3
NRS 18.010(3)(c):
3. The court may make an allowance of attorney's fees to:
. . .
(c) The defendant as prevailing party when the plaintiff has not sought recovery in excess of $10,000.

4
NRS 18.010(3)(a), (b):
3. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000; or
(b) The counterclaimant as prevailing party when he has not recovered more than $10,000; . . .
[Headnote 5]
Appellants object to the allowance, as a taxable item, of the cost of taking James A.
Williams's deposition, which, although taken by respondents, was never used at the time of
trial. The objection is well taken. NRS 18.010 provides in part:
1. . . . There shall be allowed to the prevailing party in any action, or special proceeding
in the nature of an action, in the supreme court and district courts, his costs and necessary
disbursements in the action or special proceeding, including:
. . .
(b) Costs of depositions obtained by the prevailing party and used by him at the trial.
(Emphasis added.)
The deposition was not used at trial, and it was improper to assess its cost against the
appellants. Volpert v. Papagna, 83 Nev. 429, 433 P.2d 533 (1967).
(b) The Witness Fees.
[Headnote 6]
Appellants claim that it was error to allow the following witness fees:
Bessler mileage, 15 miles at $.15 per mile, 3 days...................................................... $6.75
Iveson, Dean, mileage, 120 miles at $.15 per mile, 3 days.......................................... 54.00
Iveson, Dave, mileage, 120 miles at $.15 per mile, 3 days.......................................... 54.00
Appellants argue that the mileage paid exceeded that permitted under NRS 48.290.
5
We
agree. The statute is clear that mileage shall be allowed and paid at the rate of 15 cents a mile,
one way only, for each mile necessarily traveled from the witness's place of residence to the
trial court. It was error for the district judge to allow mileage for each day's attendance at trial.
The cost bill must be adjusted accordingly to allow mileage for a single one-way trip only, at
15 cents a mile.
6

6. The Injunction.
[Headnote 7]
Finally, appellants object to the following portion of the judgment of the lower court:
"That defendants, defendants' officers, agents, servants, employees, attorneys, and all
other persons in active concert or participation with them, be and the same are hereby
restrained and enjoined from interfering with plaintiffs' use and possession of their
horses."
____________________

5
NRS 48.290, in relevant part:
Witnesses required to attend in the courts of this state shall receive the following compensation:
. . .
2. Mileage shall be allowed and paid at the rate of 15 cents a mile, one way only, for each mile necessarily
and actually traveled from the place of residence by the shortest and most practical route, . . .

6
Thus overruling any views to the contrary expressed in Lamar v. Urban Renewal Agency, 84 Nev. 580, 445
P.2d 869 (1968).
That defendants, defendants' officers, agents, servants, employees, attorneys, and all other
persons in active concert or participation with them, be and the same are hereby restrained
and enjoined from interfering with plaintiffs' use and possession of their horses.
Appellants argue that the order enjoins them from interfering with the Williamses' horses
that the court found appellants converted and for which they must now pay damages.
Appellants claim that, since the court determined they had converted the horses and must pay
damages for their conversion, the Williamses have no further interest in the converted horses.
Ex parte Havas, 78 Nev. 237, 371 P.2d 30 (1962). We do not so interpret the order. Rather, it
appears that the lower court specifically enjoined appellants from further interfering with the
Williamses' remaining herd of horses. Under the factual posture of this case, such an order
was understandable and permissible.
____________
87 Nev. 143, 143 (1971) Medley v. State
RONALD LEE MEDLEY, Appellant, v. STATE
No. 6336
March 26, 1971 482 P.2d 322
Thomas J. O'Donnell, Judge.
Affirmed.
Robert G. Legakes, Public Defender, Jeffrey D. Sobel and Thomas D. Beatty, Deputy
Public Defenders, Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, Donald K. Wadsworth
and Charles L. Garner, Deputy District Attorneys, Clark County, for Respondent.
OPINION
Per Curiam:
A jury convicted Medley of robbery. His appeal does not point to errors of consequence.
Indeed, two of the assignments of error concern matters to which objection was not made
at trial, and the other claims of error, if error at all, cannot reasonably be deemed to have
affected substantial rights.
87 Nev. 143, 144 (1971) Medley v. State
of error concern matters to which objection was not made at trial, and the other claims of
error, if error at all, cannot reasonably be deemed to have affected substantial rights. NRS
178.598.
Affirmed.
____________
87 Nev. 144, 144 (1971) Andrade v. State
JOSEPH ANDRADE, Appellant, v. STATE
No. 6340
March 26, 1971 483 P.2d 208
Defendant was convicted in the district court of forgery and he appealed. The Supreme
Court held that substantial evidence supported conclusion that defendant's intoxication was
not so gross as to preclude his intention to defraud.
Affirmed.
Robert G. Legakes, Public Defender, and Morgan D. Harris, Deputy Public Defender,
Robert List, Attorney General, Roy A. Woofter, District Attorney, and George D. Frame,
1. Criminal Law.
Voluntary intoxication, though not an excuse for crime, may be considered in determining intent. NRS
193.220.
2. Criminal Law.
Evidence supported finding that defendant's intoxication was not so gross as to preclude his intention to
defraud as element of crime of forgery. NRS 193.220, 205.090.
OPINION
Per Curiam:
[Headnotes 1, 2]
A jury convicted Andrade of the crime of forgery, NRS 205.090, one element of which is
the specific intent to defraud, prejudice or damage another. His appellate claim is that he
could not have possessed the specific intent required by statute since he was intoxicated.
87 Nev. 144, 145 (1971) Andrade v. State
since he was intoxicated. Of course, voluntary intoxication, though not an excuse for crime,
may be considered in determining intent, NRS 193.220, and the court so instructed the jury.
We assume that the jury did so. King v. State, 80 Nev. 269, 392 P.2d 310 (1964). In any event
there is substantial evidence from which the jury could conclude that Andrade's intoxication
was not so gross as to preclude his intention to defraud. King v. State, supra.
Affirmed.
____________
87 Nev. 145, 145 (1971) Wells v. Bank of Nevada
EVELYN WELLS, Appellant, v. BANK OF NEVADA, as Administrator With Will Annexed
of the Estate of JOE WESLEY WELLS, aka JOSEPH W. WELLS, Respondent.
No. 6423
March 30, 1971 483 P.2d 205
Appeal from summary judgment of Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Action by wife against administrator with will annexed of her husband's estate to recover
alimony claim against the estate. The district court entered summary judgment for defendant,
and plaintiff appealed. The Supreme Court, Mowbray, J., held that fact that administrator
neither allowed nor rejected wife's claim within 15 days after time for filing creditor claims
had expired so that claim was deemed rejected did not trigger running of 30-day period
following rejection of claim during which actions to recover claim ordinarily have to be
commenced so as to bar wife from bringing her claim more than 30 days after it had been
deemed rejected.
Reversed and remanded for trial on the merits.
Taylor H. Wines, of Las Vegas, for Appellant.
C. W. Lynn and James E. Ordowski, of Las Vegas, for Respondent.
Executors and Administrators.
Fact that administrator of husband's estate neither allowed nor rejected wife's claim against estate for
alimony within 15 days after time for filing creditor claims had expired so that claim was deemed rejected
did not trigger running of 3O-day period following rejection of claim during which actions to recover claim
ordinarily have to be commenced so as to bar wife from bringing her claim more than
30 days after it had been deemed rejected.
have to be commenced so as to bar wife from bringing her claim more than 30 days after it had been
deemed rejected. NRS 147.040, 147.090, 147.110, 147.130.
OPINION
This appeal is from a summary judgment for the Bank of Nevada, administrator with will
annexed of the estate of Joe Wesley Wells, and against Evelyn Wells, resulting from the
latter's action to recover a $64,000 alimony claim against the estate. The claim has never been
rejected or allowed by the administrator as provided in NRS 147.110,
1
but the district judge
ruled that it was deemed rejected because of the administrator's inaction and that it was
barred by the claimant's failure to file suit within the 30-day period specified in the special
statute of limitations. NRS 147.130, subsection 1.
2
We reverse, and we remand the case to
the district court for trial on the merits.
____________________

1
NRS 147.110:
1. Within 15 days after the time for filing claims has expired, as provided in this chapter, the executor or
administrator shall examine all claims filed and shall either endorse on each claim his allowance or rejection,
with the day and the year thereof, or shall file a notice of allowance or rejection with the date and year thereof,
and such notice of allowance or rejection shall be attached to the claim allowed or rejected.
2. Within 5 days after the 15 days specified in subsection 1, the executor or administrator shall present all
claims allowed by him to the district judge for his approval or rejection.
3. If an executor or administrator shall refuse or neglect to endorse on a claim his allowance or rejection
within 15 days, as specified in this section, or shall not file a notice of allowance or rejection, the claim shall be
deemed rejected, but the executor or administrator may, nevertheless, allow the claim at any time before the
filing of the final account.

2
NRS 147.130, subsection 1:
1. When a claim is rejected by the executor or administrator or the district judge, in whole or in part, the
holder shall be immediately notified by the executor or administrator, and the holder must bring suit in the
proper court against the executor or administrator within 30 days after such notice, whether the claim is due or
not; otherwise the claim shall be forever barred. If the holder of a claim resides out of the county, he may be
informed of the rejection of his claim by written notice forwarded to his post office address by registered or
certified mail.
1. The Facts.
Joe Wesley Wells agreed in 1944 to pay Evelyn Wells alimony at the rate of $200 a
month, which he did pay until his death in 1967. Within the 3-month period permitted by
NRS 147.040,
3
Evelyn filed in the estate proceedings a creditor's claim based on future
payments that Evelyn alleged might become due under the alimony support agreement. The
claim has never been allowed or rejected by the administrator.
4

In March 1970, Evelyn commenced this action in district court for recovery on the claim.
The administrator answered and then moved for summary judgment on the grounds that (1)
the claim was deemed rejected because the administrator had not acted upon it within 15 days
after the time for filing creditor claims had expired, as provided in NRS 147.110, subsection
1, supra, and (2) the claim was barred because Evelyn failed to file her action in district court
within 30 days after rejection, as prescribed in NRS 147.130, supra.
2. The 30-day Special Statute of Limitations.
The narrow issue presented for our consideration is whether nonaction by a personal
representative in an estate proceeding is sufficient to trigger the running of the 30-day period
in which a creditor must commence an action in the district court to recover on his claim. The
administrator's argument is predicated upon its interpretation of subsection 3 of NRS
147.110, supra: namely, that if the personal representative fails to act on the claim within the
15-day period, the claim shall be deemed rejected, and the failure to act triggers the running
of the 30-day statute, even though the same subsection of the statute provides that the
personal representative may, nevertheless, allow the claim at any time before the filing of the
final account.
We do not agree with the respondent's interpretation. The "deemed rejection" statute is
directed primarily to the conduct of the estate's personal representative, rather than to
any duty on the part of the creditor.5 The statute merely provides that if the
administrator or executor does not act on the claim within the 15-day period, the claim
shall be deemed rejected and the creditor may, thereafter, commence an action to recover
the claim in district court, provided it is not barred by the general statute of limitations.
____________________

3
NRS 147.040:
1. All persons having claims against the deceased must, within 3 months after the first publication of the
notice specified in NRS 147.010, file the same, with the necessary vouchers, with the clerk of the court, who
shall file and register each claim.
2. If a claim be not filed with the clerk within 3 months after the first publication of the notice, it shall be
forever barred; but when it shall be made to appear by the affidavit of the claimant, or by other proof, that he had
no notice as provided in this chapter, to the satisfaction of the court or judge, it may be filed at any time before
the filing of the final account.

4
The present administrator, Bank of Nevada, has been substituted in these proceedings for the prior
court-appointed administrator.
deemed rejection statute is directed primarily to the conduct of the estate's personal
representative, rather than to any duty on the part of the creditor.
5
The statute merely
provides that if the administrator or executor does not act on the claim within the 15-day
period, the claim shall be deemed rejected and the creditor may, thereafter, commence an
action to recover the claim in district court, provided it is not barred by the general statute of
limitations. NRS 147.090.
6
He need not, however, bring the action within 30 days. To rule
otherwise would emasculate the notice provisions of NRS 147.130, supra, which specify that
the 30-day special statute shall commence to run when the claim has been rejected by the
personal representative and notice of the rejection has been given to the creditor.
Since the administrator has never rejected the claim, as prescribed by the statute, the order
for summary judgment was improvidently granted. It is therefore reversed, and the case is
remanded to the district court for trial.
____________________

5
To rule to the contrary would mean that every creditor would be duty bound to commence an action in
district court within 45 days after the time for filing claims had expired, if the personal representative had not
acted on the claim within the 15-day period; this would entail additional litigation and costs to the estate.

6
NRS 147.090:
No claim which is barred by the statute of limitations shall be allowed or approved by the executor or
administrator, or by the judge. When a claim is presented to a judge for his allowance or approval, he may, in his
discretion, examine the claimant and others on oath and hear any legal evidence touching the validity of the
claim. No claim, which has been allowed, is affected by the statute of limitations, pending the administration of
the estate.
____________
87 Nev. 148, 148 (1971) Deros v. Stern
JOANNE FRANCIS DEROS, aka JOANNE FRANCIS KILPATRICK, Appellant v. RAY
STERN, dba TROPICANA ESTATES APARTMENTS, Respondent.
No. 6319
April 7, 1971 483 P.2d 648
Appeal from order of the Eighth Judicial District Court, Clark County, setting aside
judgment and dismissing the complaint; William P. Compton, Judge.
Action by tenant for damages for wrongful eviction and conversion of personal property.
The district court set aside judgment and dismissed complaint as to defendant, who was never
personally served and who had not authorized appearance on his behalf, after entering
judgment in favor of tenant, and tenant appealed. The Supreme Court, Thompson, J., held
that defendant who was not served and who had not given any authorization to attorney
appearing in his behalf but who subsequently requested dismissal of complaint in addition
to setting aside of judgment entered against him on basis of unauthorized appearance
appeared in action from that point forward and waived his right to rely upon lack of
service of process and absence of counsel's authority to relieve him from final judgment
entered against him in original proceeding.
87 Nev. 148, 149 (1971) Deros v. Stern
personally served and who had not authorized appearance on his behalf, after entering
judgment in favor of tenant, and tenant appealed. The Supreme Court, Thompson, J., held
that defendant who was not served and who had not given any authorization to attorney
appearing in his behalf but who subsequently requested dismissal of complaint in addition to
setting aside of judgment entered against him on basis of unauthorized appearance appeared
in action from that point forward and waived his right to rely upon lack of service of process
and absence of counsel's authority to relieve him from final judgment entered against him in
original proceeding.
The part of the order below vacating the judgment is affirmed; the part of the order
dismissing the complaint is reversed with permission to file a responsive pleading within
20 days from and after remittitur.
Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for Appellant.
Austin & Thorndal, of Las Vegas, for Respondent.
1. Appearance.
Defendant who was not served and who had not given any authorization to attorney appearing in his
behalf but who subsequently requested dismissal of complaint in addition to setting aside of judgment
entered against him on basis of unauthorized appearance appeared in action from that point forward and
waived his right to rely upon lack of service of process and absence of counsel's authority to relieve him
from final judgment entered against him in original proceeding.
2. Judgment.
Showing of meritorious defense to action in chief is required when motion is made to vacate default
judgment upon ground of mistake, inadvertence, surprise, excusable neglect, or that defendant was not
personally served with process. NRCP 60(b)(1), (c).
3. Judgment.
Defendant who filed motion to dismiss complaint and set aside judgment entered against him without
showing of a meritorious defense but who had reason to believe the judgment against him was void since
he was not served with process nor did be authorize counsel to enter an appearance for him was entitled
to opportunity to responsively plead to charges leveled against him in original proceeding.
OPINION
This is an action for damages for wrongful eviction and conversion of personal property
commenced by a tenant, Joanne Deros, against Wally and Grace Fomrath, the managers of
Tropicana Estates Apartments, and Ray Stern the non-resident owner thereof.
87 Nev. 148, 150 (1971) Deros v. Stern
Deros, against Wally and Grace Fomrath, the managers of Tropicana Estates Apartments, and
Ray Stern the non-resident owner thereof. Process was served upon the Fomraths, but Stern
was never served. Patrick Finnegan, who had represented Stern in other matters, filed an
answer and counterclaim for all defendants. He had been retained by the Fomraths to so
appear, but had not been authorized by Stern to appear on his behalf. The case was tried to a
jury and a verdict returned for Joanne Deros against all defendants for $15,787.98, and
judgment was duly entered thereon. About one month later, Stern learned of the judgment
against him and employed counsel to challenge its validity. That counsel timely filed a
motion to dismiss the complaint and to set aside the judgment on the ground that the court
never acquired jurisdiction over Stern. That motion was granted and the judgment was
ordered set aside and the complaint dismissed as to Stern. The order was based upon the
court's conclusion that Stern was not served with process and had not authorized Finnegan to
appear on his behalf. Although the record discloses several incidents from which one might
infer that Finnegan was clothed with authority to appear for Stern, it also contains direct
evidence that he did not possess such authority, and we are bound by the district court's
determination of this point. In any event, it is undisputed that Finnegan's purported
representation of Stern was in good faith, even though mistaken. This appeal is from the order
setting aside the judgment and dismissing the complaint as to Stern.
1

1. A direct attack upon a domestic judgment obtained against a defendant who was not
served with process, but whose unauthorized appearance was entered in the action through
counsel, will be entertained if a timely and appropriate post-judgment motion is filed.
Stanton-Thompson Co. v. Crane, 24 Nev. 171 (1897).
2
Fairness demands that the defendant
be afforded his day in court. It is equally apparent, however, that the plaintiff also is
innocent and entitled to some degree of protection.
____________________

1
The motion to dismiss and set aside judgment was later disavowed by Stern as having been erroneously
drawn, and an effort made to substitute therefor a motion to set aside the judgment upon the ground that it was
void. However, the district court ruled only upon the first motion and did not consider the substituted motion.

2
A collateral attack upon a foreign judgment, Barber v. Barber, 47 Nev. 377, 381, 222 P. 284 (1924), or a
domestic judgment, Deegan v. Deegan, 22 Nev. 185, 197 (1894), will not be entertained since the recital in the
judgment of the attorney's appearance creates a presumption that the appearance was authorized, which
presumption cannot be overcome by evidence aliunde.
With regard to a direct attack upon a domestic judgment in these circumstances, see Annot. 88 A.L.R. 12.
87 Nev. 148, 151 (1971) Deros v. Stern
the plaintiff also is innocent and entitled to some degree of protection. She had the right to
rely upon the purported authority of the attorney who appeared for the non-served defendant.
The fact of his appearance should be sufficient for her and for the court, and neither should be
required to look beyond the attorney to his authority. In an effort to accommodate and protect
the interests of both innocent parties, this court in Stanton, supra, interfered with the
judgment only to the extent necessary to give the defendant his day in court. This was
accomplished by preserving the lien of the judgment pending final disposition after trial on
the merits.
Today, our Rule 60(b)
3
invests the court with a discretionary power to relieve a party
from a final judgment upon such terms as are just, and this language applies to the entire
paragraph including judgments that are void. Thus, it would have been permissible for the
district court in this case to have disposed of Stern's post-judgment motion in a manner
similar to that utilized by the court in Stanton, supra. It did not do so, choosing instead to
vacate the judgment and dismiss the complaint. Upon the record of this case this was
improper since, for reasons hereafter expressed, we have concluded that Stern entered a
general appearance in the action by reason of the relief requested in his post-judgment
motion.
[Headnote 1]
2. The consequence of requesting relief in addition to that necessary to protect the
movant's contention that jurisdiction of his person was not obtained, is a general appearance.
This is so whether the motion is made before judgment [Barnato v. Dist. Court, 76 Nev. 335,
353 P.2d 1103 (1960); Selznick v. Dist.
____________________

3
Rule 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; (2) fraud, misrepresentation or other misconduct of an adverse party which would
have therefore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is void; or,
(4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application.
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. A motion under this subdivision (b) does not affect the
finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud
upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these
rules or by an independent action.
87 Nev. 148, 152 (1971) Deros v. Stern
v. Dist. Court 76 Nev. 386 355 P.2d 854 (1960); Benson v. Dist. Court 85 Nev. 327, 454 P.2d
892 (1969)], or after judgment is entered, Doyle v. Jorgensen, 82 Nev. 196, 201, 414 P.2d
707 (1966). Accordingly, when Stern requested dismissal of the complaint in addition to the
setting aside of the judgment, he appeared in the action from that point forward and waived
his right to rely upon the lack of service of process and the absence of counsel's authority.
Doyle v. Jorgensen, supra. Such waiver, however, is not retroactive so as to breathe life into
the judgment previously entered. State v. Dist. Court, 51 Nev. 206, 212, 273 P. 659 (1929);
Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711 (1938).
[Headnote 2]
3. Stern's motion to dismiss the complaint and to set aside the judgment was not
accompanied by any showing of a meritorious defense to the action. Such a showing is
required when the motion is made pursuant to Rule 60(b)(1) upon the ground of mistake,
inadvertence, surprise or excusable neglect. Hotel Last Frontier v. Frontier Prop., 79 Nev.
150, 380 P.2d 293 (1963), and the cases therein cited. The same requirement is present when
a defendant seeks to vacate a default judgment under Rule 60(c) upon the ground that he was
not personally served with process in Nevada or elsewhere. Jenkins v. Goldwater, 84 Nev.
422, 425, 442 P.2d 897 (1968). The appellant asks that we impose the same requirement in
this case.
[Headnote 3]
The failure to tender a meritorious defense along with the post-judgment motions is
understandable. Stern had good reason to believe that the judgment against him was void
since he was not served with process, nor did he authorize counsel to enter an appearance for
him. He is now in court by reason of the manner in which the post-judgment motions were
prepared. In these narrow circumstances, fairness demands that he be given the opportunity
now to responsively plead to the charges leveled against him.
The order below vacating the judgment against Stern may stand; the order dismissing the
complaint against him is reversed with permission to file a responsive pleading within 20
days from and after remittitur.
Zenoff, C. J., Batjer, Mowbray and Gunderson, JJ., concur.
____________
87 Nev. 153, 153 (1971) Kerr v. Mills
PEGGY ANN KERR, a Minor By RALPH KERR, as Guardian Ad
Litem, Appellant v. LAURA ETHEL MILLS, Respondent.
No. 6271
April 8, 1971 483 P.2d 902
Appeal from judgment entered upon a jury verdict, and from order denying motion for
judgment n.o.v. or new trial. First Judicial District Court, Churchill County; Richard L.
Waters, Jr., Judge.
Plaintiff brought action to recover for personal injuries suffered in automobile collision.
The district court rendered judgment for defendant and plaintiff appealed. The Supreme
Court, Gunderson, J., held that where jury might have believed that automobile in which
plaintiff was a passenger was so far down the road as not to have been in plain view when
defendant entered intersection from road controlled by stop sign, and that vehicle in which
plaintiff was riding was thus not so close as to be an immediate hazard to defendant's entry
onto the road, it could not be said that injury would not have occurred but for violation by
defendant of law, and any negligence of defendant in failing to look effectively was not
necessarily the proximate cause of the accident and defendant was not liable for personal
injuries to plaintiff resulting from collision between the two vehicles.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Diehl, Recanzone and Evans, of Fallon, for Respondent.
Contention that personal injury action should not have been transferred to county in which 77-year-old
defendant, a retired school teacher, had been a lifelong resident would not be considered on appeal where
the complaint was not made below.
2. Trial.
A jury may not arbitrarily reject credible, uncontradicted testimony.
3. Automobiles.
Where jury might have believed that automobile in which plaintiff was a passenger was so far down the
road as not to have been in plain view when vehicle driven by defendant entered intersection from road
controlled by stop sign, and that vehicle in which plaintiff was riding was thus not so close as to be an
immediate hazard to defendant's entry onto the road, it could not be said that injury would not have
occurred but for a violation of law by defendant and any negligence of defendant in failing
to look, effectively was not necessarily the proximate cause of the accident and
defendant was not liable for personal injuries to plaintiff resulting from collision
between the two vehicles.
87 Nev. 153, 154 (1971) Kerr v. Mills
by defendant and any negligence of defendant in failing to look, effectively was not necessarily the
proximate cause of the accident and defendant was not liable for personal injuries to plaintiff resulting from
collision between the two vehicles. NRS 484.319.
OPINION
[Headnote 1]
Appellant Peggy Ann Kerr, a child of eight at the time of the two-car collision that gives
rise to this action seeking recovery for personal injuries, asks reversal of a judgment entered
against her upon an adverse jury verdict. On this appeal, she contends the trial court erred in
denying her motion under NRCP 50(a), which sought a directed verdict upon the issue of
liability, and in denying her post-trial motion under NRCP 50(b), which alternatively sought a
judgment notwithstanding the verdict or a new trial. We affirm the judgment because,
although respondent Mills may have been negligent in failing to see the car in which
appellant was riding, the record does not permit us to say with certainty that this negligence
was a proximate cause of the collision in question. Appellant further contends that this action,
filed in Washoe County, should not have been transferred to Churchill County, where the
77-year-old respondent, a retired school teacher, has been a life-long resident. The latter
complaint was not made below, and therefore we shall not entertain it.
The collision in question occurred on Sunday morning, July 13, 1969, some 90 feet east of
the intersection of Scheckler and McLean roads in a rural area near the town of Fallon.
Scheckler road is a two-lane, paved, through road that runs east and west. McLean road is a
two-lane, paved, secondary road that courses in a southerly direction, meeting Scheckler
obliquely to form an irregular Y, the straight trunk of which is Scheckler. A stop sign
controlling entry from McLean onto Scheckler is located in the fork thus formed, some 20
feet northerly of Scheckler's paved right of way. The corners of the roads' union are not
angular; instead, viewed from the stop sign, McLean fans out in a broad curve to the east to
conjoin with Scheckler; thus, as McLean's approach to Scheckler is a trifle oblique, the
intersection is rather elongated. The foregoing can be discerned from the pictures in
evidence, taken with the testimony, but we have before us neither a diagram nor any
measurements of the intersection. It does appear, however, that a driver turning to the east
off McLean would be totally within Scheckler's eastbound traffic lane before passing a
fence line by which the investigating officer defined the easterly boundary of the
elongated intersection.
87 Nev. 153, 155 (1971) Kerr v. Mills
that a driver turning to the east off McLean would be totally within Scheckler's eastbound
traffic lane before passing a fence line by which the investigating officer defined the easterly
boundary of the elongated intersection.
At the time of the collision, appellant Kerr was riding east along Scheckler road, as guest
in the rear seat in a car driven by Roberta Strasdin. Appellant's theory of the case is that
respondent Mills negligently drove from McLean into Scheckler's eastbound traffic lane,
usurping Strasdin's right of way, and causing Strasdin's vehicle to collide with the Mills car.
Appellant Kerr did not herself anticipate danger prior to the accident, and could give no
testimony regarding its cause; in regard to liability, her case is based on testimony by
Strasdin, by an investigating officer, and by Mills as an adverse witness.
The officer found very light skid marks commencing at a fence by which he defined the
east end of the intersection, and measured them by pacing off approximately 90 feet (30
paces) to debris by which he fixed the point of impact, then on 84 feet east to where the
Strasdin vehicle had come to rest across the westbound traffic lane. He could not say whether
there were gaps in the skid marks; we cannot discern whether they were two-wheel or
four-wheel; thus, differing inferences may be drawn from their presence. All they establish
with any certainty is that, at some time before the collision, Strasdin did see the Mills car,
and, at the fence line just referred to, applied her brakes to some degree. The officer also
testified that Scheckler road is unposted, that the general speed limit of safe and
reasonable applies to the area, and that Miss Mills told him she had not seen the Strasdin car
prior to the accident, a fact she acknowledged at trial.
Mills testified that she stopped on McLean at the stop sign, looked right and left, saw no
cars, made her turn in the elongated intersection, and was proceeding straight along Scheckler
when struck at about the point identified by the officer.
Strasdin testified that when she was approximately 10 feet west of the intersection,
traveling approximately 60 miles per hour, she saw Mills' vehicle in the opposite lane,
applied her brakes, was unable to stop, and thus struck Mills' vehicle when it was on the
line between the two lanes of traffic, doing damage to the left front of her vehicle and the
right rear of Mills' vehicle.
The record contains little else to aid our deliberations. The general area was relatively flat;
the day was clear, the pavement dry; the view of the drivers was substantially unobstructed,
although utility poles on Scheckler'a north side, the center-post of Mills' car, and the angle at
which McLean approaches Scheckler may have combined to limit the scope of Mills'
vision.
87 Nev. 153, 156 (1971) Kerr v. Mills
Mills' car, and the angle at which McLean approaches Scheckler may have combined to limit
the scope of Mills' vision. All witnesses agreed that Mills' car proceeded straight east on
Scheckler after the impact, which might inferentially support the view that Mills had
completed her turn by the time of the collision. Contrary to Mills' testimony, Strasdin said
there was a car proceeding west in the westbound traffic lane (which, to the extent the jury
believed it, might go to show why Strasdin did not pass around Mills), and Strasdin also fixed
the point of impact closer to the intersection than did Mills and the officer. Other conflicts
exist regarding facts that in themselves have uncertain probative value, e.g.: whether
Strasdin's car was totaled out as she claimed, or slightly damaged as the officer testified;
whether appellant's nose bled heavily or lightly; whether Strasdin told the officer that
appellant's nose had been injured on a prior occasion. While some of these conflicts do not
relate to matters that directly help fix liability, yet to the extent the jury disbelieved Strasdin
in these and other matters in dispute, they might discount her testimony in others.
[Headnote 2]
1. In determining whether denial of a motion under NRCP 50(a) or NRCP 50(b) is
erroneous, we must view the evidence and all inferences most favorably to the party against
whom the motion is made. Bliss v. DePrang, 81 Nev. 599, 601, 407 P.2d 726, 727 (1965);
Wilson v. Perkins, 82 Nev. 42, 409 P.2d 976 (1966). Collecting a number of Nevada
authorities in support of the proposition, we recently said in Ewing v. Sargent, 87 Nev. 74,
482 P.2d 819 (1971): Precedents of this court establish beyond cavil that it is the prerogative
of the trier of fact to evaluate the credibility of any witness's testimony, and to reject it, at
least where the testimony is contradicted as in this case, is impeached, is inherently
incredible, or conflicts with other evidence or inferences arising from evidence. However, as
we also pointed out in Ewing v. Sargent, a jury may not arbitrarily reject credible,
uncontradicted testimony. See also: Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969); cf.
Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473 (1968); J. Wigmore,
Evidence, 2495, at 306 (3rd ed. 1940).
The minor appellant, as a guest in Strasdin's car, is entitled to recover if the record,
reviewed in the light of these principles, unequivocally shows that Mills was negligent and a
proximate cause of the accident, regardless of any negligence and causation on the part of
Strasdin. Lee v. Baker, 77 Nev. 462, 465, 366 P.2d 513, 514 (1961).
87 Nev. 153, 157 (1971) Kerr v. Mills
2. NRS 484.319 imposed upon respondent Mills a duty to stop at the entrance to
Scheckler road, and to yield the right of way to other vehicles approaching so closely on
such through highway as to constitute an immediate hazard.
1
In Botts v. Rushton, 63 Nev.
426, 172 P.2d 147 (1946), this court stated that it was the disfavored driver's duty not only to
stop at the stop sign, but also to look carefully and permit the favored driver to pass, unless
the situation was such as to clearly indicate that she could cross with a fair margin of safety.
63 Nev., at 438. In substance, appellant's counsel contends respondent, having a duty to stop
and look, is chargeable with negligence as a matter of law, because she must be presumed to
have seen that which was within the sight and range of vision. L.A. & S.L.R. Co. v.
Umbaugh, 61 Nev. 214, 236, 123 P.2d 224, 234 (1942). Numerous authorities support
appellant's contention that, when there is a duty to look, it is negligence as a matter of law not
to see that which is in plain view.
2
[Headnote 3]
[Headnote 3]
____________________

1
484.319 Vehicle entering stop or yield entrance to through highway, intersection.
1. Where proper signs have been erected, the driver of a vehicle shall stop or yield at the entrance to a
through highway and shall yield the right of way to other vehicles which have entered the intersection from such
through highway or which are approaching so closely on such through highway as to constitute an immediate
hazard, but such driver having so yielded may proceed and the drivers of all other vehicles approaching the
intersection on such through highway shall yield the right of way to the vehicles so proceeding into or across the
through highway.
2. The driver of a vehicle shall stop in obedience to a stop sign or yield in compliance with a yield sign at
an intersection if a stop sign or a yield sign is erected at one or more entrances thereto although not a part of a
through highway and shall proceed cautiously, yielding to vehicles not so obligated to stop or yield and which
are within the intersection or approaching so closely as to constitute an immediate hazard during the time such
driver is moving across or within the intersection. (Added to NRS by Stats. of 1969, 1496)
The parties allowed the jury to be instructed under NRS 484.163, a similar statute, which was repealed
before the accident. Stats. of 1969, 1510.

2
Applying this rule to intersection collisions, see: Hefner v. Pattee, 96 P.2d 583 (Wash. 1939); Arline v.
Alexander, 2 So.2d 710 (La.App. 1941); Couch v. Hensley, 305 S.W.2d 765 (Ky.App. 1957); Vaughn v. Jones,
257 S.W.2d 583 (Ky.App. 1953); cf. Asher v. Fox, 134 F.Supp. 27 (E.D.Ky. 1955); cf. Meyer v. Platte Valley
Const. Co., 25 N.W.2d 412 (Neb. 1946); cf. Dashnow v. Myers, 155 A.2d 859 (Ver. 1959). Applying the rule to
pedestrians entering upon streets, see: Moss v. H. R. Boynton Co., 186 P. 631 (Cal.App. 1919); Finkle v. Tait,
203 P. 1031 (Cal.App. 1921); Chase v. Thomas, 46 P.2d 200 (Cal.App. 1935); Gibb v. Cleave, 55 P.2d 938
(Cal.App. 1936).
87 Nev. 153, 158 (1971) Kerr v. Mills
[Headnote 3]
Respondent's counsel urges that this rule is not necessarily applicable to this case because,
he suggests, the jury might have believed that Strasdin was so far down Scheckler as not to
have been in plain view when Mills entered the intersection. Respondent's paramount
contention, however, is that any negligence of Mills in failing to look effectively was not
necessarily the efficient, i.e., proximate, cause of the accident: that if Strasdin's vehicle,
though visible, was not so close as to be an immediate hazard to Mills' entry onto Scheckler
road, a prudent person might reasonably have entered upon Scheckler road when Mills did,
expecting that Strasdin's vehicle would not be operated in such a way as to cause a collision.
In substance, respondent's counsel urges that, allowing respondent the benefit of all favorable
evidence and inferences, the record does not totally foreclose such a view of the case. We are
constrained to agree.
Despite any other uncertainties in the record, we might determine that appellant had
proved proximate cause as a matter of law, if we could see: (1) that respondent was violating
a law designed to prevent the very character or type of injury which appellant received; (2)
that the violation of the law continued to the very moment of the impact; and (3) that the
injury would not have occurred, but for respondent's violation of the law. Cf. Styris v. Folk,
62 Nev. 208, 216, 146 P.2d 782, 785 (1944). Respondent's failure to look effectively may
well supply the first requisite, as appellant's counsel forcefully contends; because respondent
never looked effectively, it may also be cogently urged that the second element is satisfied;
yet, as respondent's counsel has suggested, we cannot say with certainty, from the record
before us, that the accident would not have occurred but for respondent's failure to exercise an
effective view.
In Botts v. Rushton, cited above, this court said: The purpose of arterial highways is to
facilitate through traffic, afford rapid transit, and permit vehicles thereon to move freely, thus
accelerating the flow of traffic over such favored highways. 63 Nev., at 439. Consistent with
this view, another court has said the words immediate hazard mean a vehicle so close to
the intersection that, should it continue with undiminished speed and should the unfavored
vehicle start, the two would reach the point where their paths would converge at
approximately the same time. Brown v. Clancy, 43 A.2d 296, 298 (D.C.Mun.App. 1945).
Still another court has said that an immediate hazard is created when a vehicle approaches
an intersection on a favored street at a reasonable speed under such circumstances that,
if the disfavored operator proceeds into the intersection, it forces the former sharply and
suddenly to check his progress or to come to a halt in order to avoid a collision."
87 Nev. 153, 159 (1971) Kerr v. Mills
intersection on a favored street at a reasonable speed under such circumstances that, if the
disfavored operator proceeds into the intersection, it forces the former sharply and suddenly
to check his progress or to come to a halt in order to avoid a collision. Fusco v. Dauphin, 88
A.2d 813, 816 (Del. 1952).
3
However, regardless of how we might verbalize a definition of
immediate hazard, in the instant case we are simply unable to say that Strasdin's vehicle
constituted an immediate hazard when Mills entered the intersection, or that the accident
happened because it was an immediate hazard.
As respondent's counsel correctly points out, the jury could not credit Strasdin's testimony
that Mills was in the opposite lane when Strasdin herself was 10 feet west of the
intersection going 60 miles per hour; for, had this been true, the accident would have
happened before Mills cleared the elongated intersection. The accident must have happened
in some other way than that described by Strasdin. If one attempts to work backward from
such uncontroverted data as the record contains (considering the longest time it may have
taken Mills to reach the point of impact from the place of her entry onto Scheckler road, in
order to compute from such time the possible location of the Strasdin vehicle when Mills
entered Scheckler), then even accepting Strasdin's estimate of her own speed, one is forced to
conclude that the jury could properly believe that Strasdin was not necessarily an immediate
hazard, that the accident did not necessarily result from Mills' negligence, but may have
resulted solely from the negligence of Strasdin. As respondent's counsel argued, Strasdin may
have approached Mills intending to pass, observed too late the vehicle she says was traveling
west, and collided with Mills simply because she had left herself no way to avoid a collision.
Furthermore, since Strasdin's testimony was unquestionably contradicted and impeached, it
would not even have been arbitrary for the jury to have rejected Strasdin's testimony as to her
approximate speed, and, inferring from Mills' failure to see her that she was not in plain view,
to decide that Mills was not negligent at all. Ferris v. Albright's Electric Co., 70 Nev. 528,
275 P.2d 755 (1954).
Gaps in the record make it impossible to reconstruct the accident from such
uncontroverted facts as are available.
____________________

3
Other cases in which courts have grappled with the meaning of immediate hazard in statutes like ours are:
Central Petroleum Company v. Wright, 290 S.W.2d 465 (Ky.App. 1956); Romans v. Duke, 230 S.W.2d 439
(Ky.App. 1950); Huber & Huber Motor Express v. Croley, 196 S.W.2d 965 (Ky.App. 1946); Carr v.
Holtslander, 246 P.2d 678 (Cal.App. 1952).
87 Nev. 153, 160 (1971) Kerr v. Mills
accident from such uncontroverted facts as are available. This would have benefitted
appellant, had she been favored with the jury's verdict, but it defeats her on this appeal.
The judgment is affirmed.
____________
87 Nev. 160, 160 (1971) Blosser v. Wilcox
THEODORE L. BLOSSER and D. MARIE BLOSSER, Appellants, v. RAY C. WILCOX,
ARIZONA COTTONSEED PRODUCTS COMPANY and NEVADA GINNING
COMPANY, Respondents.
No. 6188
April 9, 1971 483 P.2d 659
Appeal from order overruling objections to a master's report, confirming the master's
report and findings of fact and conclusions of law as modified and dismissing on the merits
contracting party's suit for specific performance of a contract for a sale of realty. Eighth
Judicial District Court, Clark County; Howard W. Babcock, Judge.
Action by vendors for specific performance of written agreement to sell real property. The
district court denied relief, and vendors appealed. The Supreme Court, 83 Nev. 124, 424 P.2d
886, reversed and remanded. On remand, the district court entered order overruling objections
to master's report, confirming master's report and findings of fact and conclusions of law as
modified and dismissing action and vendors appealed. The Supreme Court, Zenoff, C. J., held
that where appraisal of vendors' property pursuant to contract to sell property at price to be
determined by independent appraiser was based on reconstruction cost of dwelling and
auction value of farm machinery, appraiser properly reappraised property to consider
residence and machinery as part of operating farm and bad faith could not be charged to the
appraiser merely because purchaser insisted that appraiser follow proper appraisal practices.
Affirmed; remanded to the trial court for further proceedings.
[Rehearing denied May 24, 1971, 87 Nev. 260, 483 P.2d 659]
Albright, George, Johnson, Steffen & Simmons, of Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondent Arizona Cottonseed Products Company.
Morton Galane, of Las Vegas, for Respondent Ray C. Wilcox.
Where appraisal of vendors' property pursuant to contract to sell property at price to be determined by
independent appraiser was based on reconstruction cost of dwelling and auction value of farm machinery,
appraiser properly reappraised property to consider residence and machinery as part of operating farm and
bad faith could not be charged to the appraiser merely because purchaser insisted that appraiser follow
proper appraisal practices.
Under written agreement to sell real property providing that matter of price would be determined by
independent appraiser, where appraiser revised first estimate and second appraisal was lower than the first,
vendors by suing to recover on the first and higher appraisal did not entitle purchasers to deem vendors'
action a breach and obtain rescission; vendors should have the opportunity to accept or reject the second
appraisal.
OPINION
This is the second appeal in a lawsuit that became extensive and further complicated since
our first opinion in Blosser v. Wilcox, 83 Nev. 124, 424 P.2d 886 (1967). At issue is a
contract for the sale of real property, a cotton farm located in Clark County, which contract
Theodore and D. Marie Blosser seek to enforce as sellers by this action for specific
performance.
Blosser and Wilcox are the owners of adjoining parcels of 248 and 440 acres respectively.
The parties agreed to a contract of sale under which they were to be bound by the results of
appraisal of an agreed-upon appraiser. The contract provided for the sale of the Blosser ranch
to Wilcox and the latter's efforts to sell the two as one operating unit. If a satisfactory sale
could not be made within two years, Wilcox was to purchase Blosser's ranch outright for its
fair market value as determined by the appraiser.
An appraisal was submitted by the appraiser, Thomas E. Taney, but Taney later submitted
a revised appraisal which valued the Blosser property at $20,000 less than the first appraisal.
Blosser insisted that the second appraisal was tainted by Wilcox and his California attorney
wrongfully impressing their will upon Taney and that therefore the first appraisal should
stand.
their will upon Taney and that therefore the first appraisal should stand. The reason for the
revised appraisal was that Taney had appraised the residence dwelling on the farm at its
reconstruction cost and the farm machinery at its auction value which Wilcox asserts is not
proper under the contract. The Blossers appeal from the trial court's approval of the second
appraisal as reported by a master in the master's report.
This appeal presents the question of whether the first or second of two appraisals
submitted under a contract of sale was the proper one.
1
An appointed master, as well as the
lower court, held that the second appraisal was properly submitted and should be adopted. We
agree.
The appraiser, Thomas E. Taney, testified to the effect that his first appraisal was not
intended to be a true appraisal. Instead, it was his attempt to compromise a difficult economic
condition existing between the parties which was brought about by their involvement in the
cotton industry and which was peculiar to the area wherein their farms are located. When that
attempt failed, evidenced by Wilcox's objection to the formula used for the appraisal, Taney
appraised in accordance with principles acceptable in the appraisal of farms.
The revised figure was lower than the original because the residence and equipment were
included as part of the farm package, whereas, the first figure was based on separate
appraisals on an auction basis. The residence and machinery had considerably less value
when considered as part of an operating farm than if they were sold or valued separately.
Wilcox's disagreement with Taney's first appraisal was on valid grounds. Although voiced
to Taney without Blosser's presence, Wilcox was doing only what could be expected, that is,
insisting that Taney follow proper appraisal practices in appraising the farm as an entity as
required by the contract.
[Headnote 1]
Despite appellants' efforts to attribute bad faith to Taney and thus avoid a second appraisal
we find no corruption. It is noted, too, that Blosser tried to exercise his personal will on
Taney in private conversations with him on several occasions.
____________________

1
The relevant parts of the contract are as follows:
Both Wilcox and Blosser properties described in Exhibit A shall be appraised by an independent appraiser
to determine their fair market value as separate and distinct farms and also their joint value as a single farm. . . .
The appraisal shall include the fair market value of the improvements and the farming machinery and related
equipment to be transferred by Blosser to Wilcox, a list of such machinery and equipment being set forth in
Exhibit B, which said exhibit is attached hereto and by this reference incorporated herein as if fully set forth.
(Emphasis added.)
too, that Blosser tried to exercise his personal will on Taney in private conversations with
him on several occasions. Nevertheless, bad faith cannot be charged to anyone in this difficult
transaction. We will not disturb the lower court's findings. NRCP 52(a). Overall, it had
developed that the first figure was founded upon improper and unrecognized methods of
appraising. Undoubtedly, an order would have issued to do the appraisal over. This in effect
is what resulted anyway.
[Headnote 2]
In one respect we might have disagreed with the trial court. Blosser sued to recover on the
first and higher appraisal. Wilcox chose to deem that action a breach on Blosser's part and
obtained rescission. Blosser should have the opportunity to accept or reject the second
appraisal. If he rejects that appraisal after the rendition of this opinion, then the deal must fail.
Affirmed, but remanded to the trial court for further proceedings as stated.
Mowbray and Thompson, JJ., concur.
Batjer, J., concurring in the result:
I concur in the result but respectfully disagree with the majority's reasoning in reaching
that result. When this court, without the knowledge that Thomas E. Taney would repudiate
his initial appraisal, decided the first Blosser case, Blosser v. Wilcox, 83 Nev. 124, 424 P.2d
886 (1967), it delivered a mandate to the trial court when it said: The difficulty in the instant
matter does not arise because of any uncertainty in the written agreement. Rather, it came
about because the appraiser made an original appraisal and later revised it. The seller found
the first appraisal acceptable; the buyer preferred the revised version. On remand, the lower
court will have to decide which of the two figures should govern the parties, and then fashion
appropriate relief within the framework of the pleadings and the evidence. (Emphasis added.)
When Taney disavowed his first appraisal and denominated it as an attempt to effect a
compromise between the parties, the special master should have terminated the hearing and
entered a finding that the second figure must govern.
There was no need for the special master to further consider the vacillating double talk of
Taney, because anything Taney had to say about his method in arriving at either figure was
irrelevant after it was established that the first appraisal was only an effort at compromise
and that there remained only one appraisal. The question of good faith was not properly
before either the special master or the trial court after it was established that there was
only one appraisal and one figure.
either the special master or the trial court after it was established that there was only one
appraisal and one figure.
Neither the special master, the trial court, nor this court need be concerned with how
Taney arrived at the final figure.
For the majority to state that [T]aney appraised in accordance with principles acceptable
in the appraisal of farms, and that Wilcox was doing only what could be expected, that is,
insisting that Taney follow proper appraisal practices in appraising the farm as an entity as
required by the contract are recitations of dicta not really pertinent to the opinion.
Furthermore, this court in saying: The revised figure was lower than the original because
the residence and equipment were included as part of the farm package, whereas, the first
figure was based on separate appraisals on an auction' basis. The residence and machinery
had considerably less value when considered as part of an operating farm than if they were
sold or valued separately, is adopting by way of dicta as the settled law of this state the
vacillating double talk of Taney when it has nothing whatsoever to do with the deciding of
the actual outcome of this case.
To substantiate that Taney appraised in accordance with principles acceptable in the
appraisal of farms it was necessary to refer to McMichael's Appraising Manual, 4th Edition,
p. 355, which reads as follows: It may have buildings reasonably worth, on a reproduction
basis, $15,000 or $20,000, but they may not add that in value to the completed farm project as
a going concern. The appraiser must distinguish carefully the actual worth of improvements,
especially when the appraisal is for loaning purposes. (Emphasis added.) Taney testified:
The first indication I got that it [his first appraisal] was seriously erroneous was when I
contacted the Utah Mortgage Company and attempted to get a loan on the Hafen property.
Here we are dealing with a sale not a loan, and the question of whether the same methods of
appraisal for agriculture lands may be used for farm loans as well as for sales is not before
this court.
Without lending the stamp of approval to the methods of Taney, I would simply remand
to afford Blosser an opportunity to accept or reject the second appraisal.
Gunderson, J., concurring:
I concur: in the result reached by the majority; in many of the sentiments expressed by Mr.
Justice Batjer.
The first appeal of this cause was presented and decided on the assumption that the
appraiser agreed upon by the parties had appraised the Blossers' property, then rendered
a revised appraisal.
had appraised the Blossers' property, then rendered a revised appraisal. We remanded the
cause for the lower court to decide which of the two figures should govern. Blosser v.
Wilcox, 83 Nev. 124, 126, 424 P.2d 886, 888 (1967).
From the record before us, it now appears that instead of two plausible appraisals to
choose from, there is really none. The appraiser now stigmatizes his first evaluation of the
Blossers' property as being wrong to begin with, a mere attempt to effect a settlement, a
compromise, and not a proper appraisal; thus, to accept it as the latter rather than the
former, one would have to credit his capacity to make an appraisal, but discredit his veracity
in saying when he has made one. The appraiser now styles his second evaluation of the
Blossers' property as the only real appraisal made by him; yet, for reasons suggested by Mr.
Justice Batjer, I would not consider it a proper appraisal of the Blossers' property, for the
purposes of these parties.
However, since I find no justification for the proposition that the Blossers rescinded the
contract by attempting to enforce their rights under it, since the respondent insists that the
second evaluation is the true appraisal, and since the Blossers' rights will be completely
frustrated if no opportunity is afforded to them to acquiesce in this view, I agree with the
majority that, upon remand, the Blossers should be afforded the opportunity to accept or
reject the only available appraisal. If they reject it, the contract of the parties must fail
because the appraiser agreed to by them has not fulfilled his function, and we cannot
perform it for him.
____________
87 Nev. 165, 165 (1971) Founts v. State
RICHARD EUGENE FOUNTS and GARY LUFFMAN, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 6305
April 9, 1971 483 P.2d 654
Appeal from judgments of conviction; Second Judicial District Court, Washoe County;
Thomas O. Craven, Judge.
Defendants were convicted in the district court of two counts of armed robbery and one
count of attempted robbery and they appealed. The Supreme Court, Zenoff, C. J., held that
where state had been orally notified several days before trial began that defendant intended to
offer alibi testimony, and offer of proof at trial indicated that alibi testimony directly
contradicted that of the sole witness against defendant, court should have allowed the
alibi testimony despite noncompliance with statute providing for written notice of alibi
before trial.
proof at trial indicated that alibi testimony directly contradicted that of the sole witness
against defendant, court should have allowed the alibi testimony despite noncompliance with
statute providing for written notice of alibi before trial.
Affirmed as to Appellant Founts; reversed as to Appellant Luffman.
[Rehearing denied May 6, 1971]
Batjer, J., concurred in part, dissented in part.
H. Dale Murphy, Public Defender, Jerome M. Polaha and Jack Grellman, Deputy Public
Defenders, Washoe County, for Appellant Founts.
Seymour H. Patt, of Reno, for Appellant Luffman.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Robert R. Barengo,
Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where other evidence substantially established element of identity, probative value of testimony as to
previous offense was diminished and that testimony was properly excluded.
2. Criminal Law.
Where prosecutor on direct examination of robbery victim repeatedly referred to unusual or
unfortunate nature of previous meeting between defendant and robbery victim but did not elicit
description of the offense which occurred at time of previous confrontation, no damaging previous-offense
testimony was introduced and rule proscribing introduction of such testimony was not violated.
3. Criminal Law.
Strict compliance with statute requiring notice to prosecution when alibi defense is contemplated should
not be blindly required if the end result will make the criminal prosecution a game and trial court should
exercise its discretion to allow introduction of alibi testimony despite noncompliance when good cause for
such exercise is shown by the defendant. NRS 174.087, subd. 1.
4. Criminal Law.
Good cause for exercise of discretion to allow introduction of alibi testimony despite noncompliance
with notice statute may be shown by a variety of factors and the particular situation presented by each case
must be considered. NRS 174.087, subd. 1.
5. Criminal Law.
Where state had been orally notified several days before trial began that defendant intended to offer alibi
testimony, and offer of proof at trial indicated that alibi testimony directly contradicted that of the sole
witness against defendant, court should have allowed the alibi testimony despite
noncompliance with statute providing for written notice of alibi before trial.
allowed the alibi testimony despite noncompliance with statute providing for written notice of alibi before
trial. NRS 174.087, subd. 1.
OPINION
Richard Founts and Gary Luffman were convicted of two counts of armed robbery and one
count of attempted robbery for the September 9, 1969 robbery of a Reno barber shop.
Founts was identified as the robber by the three barbers who were in the shop at the time
of the robbery. One of the barbers, Mr. Keough, testified at the grand jury hearing that he had
been held up by Founts in April of 1969. He said that he recognized Founts' voice before even
turning to see him, since When a man says Stick them up' twice, you recognize that voice.
Before the trial began the defense moved to exclude testimony with regard to the previous
robbery. The motion was tentatively granted at that time and later modified so as to allow
reference to the earlier meeting, but without detailed testimony to show the circumstances of
that meeting.
In his examination of Mr. Keough, the prosecuting attorney referred to the April meeting
as an unfortunate confrontation and characterized the circumstances as highly unusual.
No reference was made to the details of that meeting. The only reference to the April meeting
which tended to show a robbery had taken place was Mr. Keough's response to a series of
questions by Founts' counsel. Keough stated, When a man says, Stick them up' twice to you,
you remember it.
None of the three barbers saw Luffman who was allegedly the driver of the getaway car.
His conviction was based solely on the testimony of a prosecution witness, Wayne Noel. Noel
stated that he arrived at Luffman's on the morning of September 9, stayed through the day and
drove to downtown Reno with Luffman and Founts. He was left in Reno and did not see the
defendants again until later that evening, when he returned to Luffman's. He stated that the
defendants were dividing some money and talking of a robbery they had committed when he
returned. They told him they had left his car, which was identified as the robbery car, in
downtown Reno.
Luffman sought to introduce the testimony of his roommate, Edward Harris, to show that
they were together at the time of the robbery. Though the state had been orally notified
several days before the trial began that Luffman intended to offer this testimony, it objected
to the admission of the testimony because NRS 174.0S7{1) had not been followed.1 By an
offer of proof, it was shown Harris would testify that he was with Luffman all day on
September 9 and that they left together at 9:00 p.m.
this testimony, it objected to the admission of the testimony because NRS 174.087(1) had not
been followed.
1
By an offer of proof, it was shown Harris would testify that he was with
Luffman all day on September 9 and that they left together at 9:00 p.m. According to Harris,
Noel left alone at about 5:00 p.m. Harris was allowed to testify before the jury as to events
before 5:00 p.m. and after 9:00 p.m. but was not allowed to state that Noel left alone or that
Luffman was at home at 6:00 p.m. when the robbery took place.
Essentially two issues are addressed on this appeal: (1) Whether the trial court erroneously
allowed the introduction of testimony with regard to the April offense; and (2) Whether it was
an abuse of discretion to disallow the alibi testimony of Harris.
[Headnote 1]
1. This court has frequently held that evidence of previous offenses may be admitted only
for limited purposes, and then only if its prejudicial effect is outweighed by its probative
value in achieving that purpose. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966); Nester v.
State, 75 Nev. 41, 334 P.2d 524 (1959); State v. Roberts, 28 Nev. 350, 82 P. 100 (1905).
Because there was other evidence substantially establishing the element of identity, the
probative value of testimony as to the April offense was diminished and that testimony was
properly ordered excluded. Tucker v. State, supra.
[Headnote 2]
Though the prosecution repeatedly referred to the unusual or unfortunate nature of the
April meeting, nowhere in the course of the examination of Mr. Keough did it elicit a
description of the offense which occurred. Therefore, no damaging previous-offense
testimony was introduced and the rule proscribing the introduction of such testimony was not
violated. Cf. Miller v. State, 86 Nev. 503, 471 P.2d 213 (1970). The only testimony as to the
offense which occurred in April was elicited as direct response to the questioning of
defense counsel and may not be raised by the defendant as a basis of error.
____________________

1
NRS 174.087: Notice of alibi by defendant before trial; district attorney to provide defendant with
statement of results of investigation of alibi defense.
1. If a defendant intends to offer in his defense evidence to establish an alibi, he shall give the district
attorney written notice thereof not more than 3 days after the day of arraignment or 10 days before the date set
for trial, whichever is later. Such notice shall include specific information as to the place where he claims to
have been at the time of the alleged offense. In default of such notice, evidence of such alibi shall not be
received unless the court, upon good cause shown, otherwise orders.
elicited as direct response to the questioning of defense counsel and may not be raised by the
defendant as a basis of error.
The other asserted errors raised by Founts are without merit. Therefore, the conviction
with respect to Founts must be affirmed.
[Headnote 3]
2. Statutes such as NRS 174.087(1) which require notice to the prosecution when an alibi
defense is contemplated are usually strictly applied. Annot. 30 A.L.R.2d 480 (1953). Strict
compliance is compelled with the purpose of preventing the popping up of alibi witnesses
at the eleventh hour when the prosecution will be unable to investigate the veracity of the
alibi testimony. Williams v. Florida, 399 U.S. 78 (1970); State v. Dodd, 418 P.2d 571 (Ariz.
1966); People v. Schadd, 292 N.Y.S. 616, 617 (Queen's County Ct. N.Y. 1936); State ex rel.
Simos v. Burke, 163 N.W.2d 177 (Wis. 1968).
Such strict compliance should not be blindly required if the end result will make the
criminal prosecution a game, however. Commonwealth v. Shider, 224 A.2d 802 (Pa.Super.
1966); State ex rel. Simos v. Burke, supra; see generally Brennan, The Criminal Prosecution:
Sporting Event or Quest for Truth 1963 Wash. U.L.Q. 279. The statute allows for the trial
court to exercise its discretion to allow introduction of alibi testimony despite
noncompliance. That discretion should be exercised, according to the statute, when good
cause for such exercise is shown by the defendant.
[Headnote 4]
Good cause for the exercise of such discretion may be shown by a variety of factors and
the particular situation presented by each case must be considered. Gray v. State, 161 N.W.2d
893 (Wis. 1968). Some of the factors considered are reflected in decisions of courts of other
states, including, for example: Whether the testimony is sought to be introduced at such a late
time in the course of the trial that even an adjournment for investigation would not cure the
prejudice to the state, State v. Woodard, 246 A.2d 130, 134 (N.J.Super.App. Div. 1968);
whether an excuse was shown for the omission, State v. Adair, 469 P.2d 823, 826 (Ariz.
1970); whether the information failed to describe the occurrence of the crime with sufficient
specificity to enable the accused to prepare an alibi defense, Bush v. State, 454 P.2d 429, 434
(Kan. 1969); and whether the alibi had such substance as to have probative value to the
defense, State v. Martin, 410 P.2d 132, 137 (Ariz.App. 1966).
Also relevant, by analogy, are cases discussing the effect of the state's failure to give the
required notice with regard to witnesses it intends to produce. Often emphasized is the factor
of surprise and its consequent prejudicial effect upon the defendant's investigation and
cross-examination of witnesses. Battese v. State, 425 P.2d 606 (Alaska 1967); People v.
Speck, 242 N.E.2d 208, 220 (Ill. 1968); Jackson v. State, 259 A.2d 587, 590 (Md.App. 1969).
Also considered are reasons why the proper notice was not given, the value of the offered
testimony, the prejudicial effect upon either side by the admission or nonadmission of the
testimony and the feasibility of a postponement. State v. Miner, 258 A.2d 815, 825 (Vt.
1969).
[Headnote 5]
In the instant case, we feel that an overview of the situation presented leads to the
conclusion that there was good cause for allowing the alibi testimony despite noncompliance
with NRS 174.087(1). The excluded alibi witness did not pop up at the eleventh hour, so
the state cannot claim to have been surprised or prejudiced in its investigation. Moreover,
defendant made an offer of proof at the trial as to what the alibi witness would testify. The
importance of this testimony was evident since it directly contradicted that of the sole witness
against Luffman. This case is thus similar to Commonwealth v. Shider, 224 A.2d 802
(Pa.Super. 1966). As the court held there, we hold that on the facts presented, requiring strict
compliance with the statute would defeat the ends of justice and fair play which is the policy
underlying the statute.
Affirmed as regards Appellant Founts; reversed and new trial ordered as regards Appellant
Luffman.
Mowbray, Thompson, and Gunderson, JJ., concur.
I concur in the majority's opinion as regards to appellant Founts and agree that the
judgment of the lower court should be affirmed. I respectfully dissent from the majority's
opinion as regards the appellant Luffman.
Luffman, without giving the written notice required by NRS 174.087, sought to have his
roommate, Edward Harris, testify that they were together at their place of residence at the
time of the alleged robbery. An offer of proof was made outside the presence of the jury. The
trial judge precluded Harris from giving testimony to establish an alibi for Luffman.
It appears that the state had been orally notified a few days
1
before the trial began that
Luffman intended to offer the alibi testimony of Harris. Luffman contends that the trial court
abused its discretion when it precluded the alibi testimony of Harris, and the majority of this
court agrees with Luffman's contention. As a companion contention Luffman maintains that
the testimony of Harris was offered not as alibi evidence but as impeachment of the
prosecution witness Noel, who placed Luffman with Founts before and after the time of the
alleged robbery. Although Harris' testimony might of had the dual effect of impeaching Noel
we must nevertheless read evidence to establish an alibi to mean any testimony placing
Luffman somewhere else at the time of the robbery. State ex rel. Simos v. Burke, 163 N.W.2d
177 (Wis. 1968). Cf. State v. Ovitt, 229 A.2d 237 (Vt. 1967).
NRS 174.087 is a mandatory statute. The language is plain, unambiguous, positive and
forceful. It provides that notice of intent to offer evidence to establish an alibi must be given
in writing to the district attorney 10 days before trial, and it further provides that [I]n default
of such notice, evidence of such alibi shall not be received unless the court, upon good cause
shown otherwise orders.
Statutes such as NRS 174.087(1) which require notice to the prosecution when an alibi
defense is contemplated are in derogation of the common law and must be strictly construed.
State v. Ovitt, supra. As was pointed out in the majority opinion, strict compliance is
compelled with the purpose of preventing the popping up of alibi witnesses at the eleventh
hour when the prosecution will be unable to investigate the veracity of the alibi testimony,
unless the trial is recessed for that purpose. Annot. 30 A.L.R.2d 480 (1953).
Whether evidence of such alibi, without proper notice, can be received is entirely within
the discretion of the trial court. NRS 174.087; State v. Selbach, 68 N.W.2d 37 (Wis. 1955);
State v. Woodard, 246 A.2d 130 (N.J.App. 1968).
In Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965), this court said: Of course the
discretion reposed in the trial judge is not unlimited, but an appellate court will respect the
lower court's view unless it is manifestly wrong. See also State v. Lewis, 50 Nev. 212, 255
P. 1002 (1927).
No reason was proffered by Luffman why the witness Harris should have been permitted
to testify despite the lack of notice.
____________________

1
The record indicates that the period of time was probably two (2) days.
The trial court specifically found that there was no reason or excuse given by Luffman for
his failure to give the required notice and the record supports this finding. The only basis
appearing in the majority opinion, for finding an abuse of discretion by the trial court, is the
fact that a few days before trial the attorney for Luffman orally advised the district attorney
that Harris would be called to supply an alibi for Luffman, together with the fact that the state
had prior information that Harris lived with Luffman. These facts are not sufficient to support
a finding that the trial court was manifestly wrong.
In the case of State v. Selbach, supra, it was admitted that no written notice was given to
the district attorney pursuant to a statute. However, the trial attorney stated that he had given
the district attorney oral notice thereof shortly before the trial and in his opening statement at
the trial he had made reference to the proposed alibi testimony. There the defendant claimed
that this was sufficient notice under the statute and amounted to good cause shown as
provided by the statute. The Wisconsin Supreme Court held that the language of the statute
was plain and unambiguous. Any notice given thereunder must be in writing and whether
good cause is shown for permitting the receipt of alibi testimony in the absence of a written
notice is a matter within the discretion of the trial court.
2

Here indictment was found against Luffman and filed on January 22, 1970. In the
indictment Luffman was accused of committing the crime of robbery on or about September
9, 1969. The proceedings of the grand jury were filed on January 27, 1970, and in that
transcript the victim testified that the robbery took place just before 6:00 p.m. on September
9, 1969. In that same transcript a Wayne Richard Noel, who claimed to have been an
acquaintance of Luffman for a period of several months, testified that he came to Luffman's
residence on September 9, 1969; that at about 4:00 p.m. of that day he loaned his automobile
to Luffman and that they went to downtown Reno, Nevada, where he got out of the
automobile and Luffman and Founts drove off. Noel further testified that he returned to
Luffman's residence that evening about 6:30 p.m. and found Luffman, Eddie Harris, Founts
and two other people.
____________________

2
Cf. State ex rel. Simos v. Burke, supra, (cited in the majority's opinion) where the defendant was precluded
from testifying that he was at a location other than the place of the accident because he had not given notice of
an alibi under the applicable Wisconsin statute which in pertinent parts is very similar to NRS 174.087. See also
State v. Rider, 399 P.2d 564 (Kan. 1965); State v. Taylor, 424 P.2d 612 (Kan. 1967).
Luffman and Founts were discussing an armed robbery that they had just committed.
Here we do not have any vagueness or question about the time of the commission of the
alleged crime or a situation where the identity of an alibi witness is discovered for the first
time because of a last minute investigation, or by reason of testimony at trial, but instead we
have proposed alibi testimony of a roommate about a specific place and period of time all
known to Luffman, approximately two months before his trial commenced on March 23,
1970.
If there was any real question about the constitutionality, notice-of-alibi statutes such as
NRS 174.087, that question was put to rest in the case of Williams v. Florida, 399 U.S. 78
(1970)
3
when the United States Supreme Court said: We conclude, however, as has
apparently every court which has considered the issue that the privilege against
self-incrimination is not violated by a requirement that the defendant give notice of an alibi
defense and disclose his alibi witnesses.
Almost without exception, in the jurisdictions where the trial courts have exercised their
discretion and refused to accept alibi testimony because of non-compliance with the
notice-of-alibi statute, the appellate courts have found no abuse. State v. Selbach, supra; Cox
v. State, 219 So.2d 762 (Fla.App. 1969); State v. Dodd, 418 P.2d 571 (Ariz. 1966); People v.
Williams, 160 N.W.2d 599 (Mich.App. 1968); State v. Woodard, supra; Gray v. State, 161
N.W.2d 892 (Wis. 1968). Cf. State v. Ovitt, supra. In State v. Sharp, 451 P.2d 137 (Kan.
1969), the applicable statute required that a notice of a plea of alibi be served upon the county
attorney not less than seven days before trial. The notice was served not more than five days
before trial. The lower court held that there had not been compliance with the statutory
requirement and refused to grant permission for late service and the Supreme Court of Kansas
held that the lower court did not abuse its discretion in such refusal. In State v. Leigh, 199
P.2d 504 (Kan. 1948), the trial court allowed a witness to give alibi testimony when the
proper written notice had not been timely given. The appellate court found an abuse of
discretion and reversed the trial court.
____________________

3
In footnote 14 of Williams v. Florida, supra, the High Court noted: We emphasize that this case does not
involve the question of the validity of the threatened sanction, had petitioner chosen not to comply with the
notice-of-alibi rule. Whether and to what extent a State can enforce discovery rules against a defendant who fails
to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we
have no occasion to explore.
The opinion of the majority is destroying all effectiveness of NRS 174.087 and rendering
it nugatory. If it is a manifest abuse of discretion for the trial judge to refuse to relieve
Luffman of the effect of NRS 174.087, then it is hard to image a situation where a trial judge
could enforce the statute without committing error.
His other assignments of error being without merit, the judgment against Luffman should
be affirmed.
____________
87 Nev. 174, 174 (1971) Brooks v. Jensen
JAMES A. BROOKS and LOIS BROOKS, Appellants,
v. MINNIE JENSEN, Respondent.
No. 6264
April 12, 1971 483 P.2d 650
Appeal from order of the First Judicial District Court, Douglas County, dismissing the
action; Frank B. Gregory, Judge.
Action to establish right to easement for road. The district court dismissed the action at the
close of plaintiffs' case and plaintiffs appealed. The Supreme Court, Thompson, J., held that
evidence created fact issues precluding grant of dismissal at close of plaintiffs' evidence.
Reversed and remanded for trial.
Breen, Young, Whitehead & Hoy, of Reno, for Appellants.
Guild, Guild & Cunningham and David W. Hagen, of Reno, for Respondent.
1. Easements.
Evidence in action to establish right to easement for road created fact issues precluding grant of dismissal
at close of plaintiffs' evidence. NRCP 41 (b).
2. Easements.
In absence of provision that easement reserved was to be appurtenant to dominant estate only while such
estate remained in single possession, those who succeeded to possession of parts of dominant tenement also
succeeded to privilege of using easement reserved for benefit of dominant tenement.
3. Easements.
Easement which had been created by deed, was appurtenant to large tract, and had been acquired by
mesne conveyances of parts of tract could be extinguished by abandonment, prescription or other ways.
4. Easements.
Loss of easement by abandonment depends on finding of intention to abandon and nonuse of easement is
evidence of such intention.
5. Easements.
Evidence was insufficient to establish that easement had been abandoned.
6. Easements.
Easement may be extinguished by use of servient tenement by possessor of it which would be privileged
if easement did not exist, provided use is adverse to owner of easement and such adverse use is, for period
of prescription, continuous and uninterrupted.
7. Easements.
Period of prescription for extinguishing easement is same as that fixed by local law for obtaining one.
8. Easements.
Evidence as to use of way by claimants and their predecessors prima facie denied loss of easement by
prescription.
9. Easements.
To obtain easement by prescription, actual and peaceable possession is not enough and possession must
be hostile in its inception; actual, peaceable, open, notorious, continuous and uninterrupted for statutory
period.
In actions between relatives, evidence as to hostility of possession must be stronger than that required in
case between strangers.
Where claimant of title by prescription had occupied land under mistaken belief that it was covered by
deed from in-laws and nine years later mistake in deed was corrected, occupancy of land was not hostile.
OPINION
This action was commenced by James A. Brooks and Lois Brooks to establish their right
to an easement for a road 23 feet in width over an adjoining parcel of land owned by Minnie
Jensen. Their claim rests primarily upon recorded documents which, they assert, confirm the
easement as appurtenant to their land and a charge upon the land of Minnie Jensen.
1
In
defense, Minnie Jensen alleges extinguishment of the easement by abandonment, and by
counterclaim, asserts fee title to the 23-foot strip by adverse possession. At the close of the
plaintiffs' case the district court dismissed the action pursuant to the defendant's Rule 41
{b) motion.
____________________

1
Mr. and Mrs. Brooks also asserted an easement by prescription over the Jensen parcel. Because of our
disposition of the appeal, this claim is not discussed.
the district court dismissed the action pursuant to the defendant's Rule 41 (b) motion.
The recorded documents were received in evidence and are not questioned. Testimonial
evidence provides some conflict as to the use made of the road through the years. In
reviewing the propriety of the dismissal we must read the record in the light most favorable to
the plaintiffs against whom the motion was made. Schmidt v. Merriweather, 82 Nev. 372,
418 P.2d 991 (1966). Our recitation of the testimonial evidence is with this principle in mind.
Before 1931 the adjoining parcels of the litigants were part of a large tract of land owned
by Lena Jensen and A. Jensen, Sr. In 1931 the senior Jensens intended to convey to their son
the parcel now occupied by Minnie Jensen. The deed erroneously described the parcel
intended and reserved to the grantors an easement for a road 23 feet in width. The deed
actually described a parcel of land which the grantors did not own. The son, who has since
died, and his wife Minnie moved onto the parcel intended for them and Minnie has lived
there to this day. In 1940 Minnie learned of the mistaken description and asked Lena Jensen
to correct it by executing another deed. Lena obliged by executing a quitclaim deed to Minnie
correctly describing the parcel which Minnie had occupied for nine years and, once more,
reserving to the grantor an easement for a road 23 feet in width.
[Headnote 1]
James and Lois Brooks obtained their adjoining parcel through mesne conveyances from
Lena Jensen. Each deed in their chain of title back to Lena Jensen carried appurtenances
thereunto belonging. Such is the documentary evidence which, in our view, verifies the
claim of Mr. and Mrs. Brooks to an easement over Minnie Jensen's land. We shall first
explain why this is so, and then consider whether that easement was extinguished by
abandonment, prescription, or as contended by Minnie Jensen, never existed at all when the
correction deed was executed in 1940.
[Headnote 2]
1. The reservation of an easement over Minnie's parcel contained in the 1940 quitclaim
deed was appurtenant to the large tract of land then owned by Lena Jensen. There is nothing
contained in that conveyance to suggest that the easement therein reserved was to be
appurtenant to the dominant estate only while such estate remained in single possession.
Absent such a restriction, those who succeed to possession of parts of the dominant
tenement also succeed to the privilege of using the easement reserved for the benefit of
the dominant tenement.
the dominant tenement also succeed to the privilege of using the easement reserved for the
benefit of the dominant tenement. Cox v. Glenbrook Co., 78 Nev. 254, 263, 371 P.2d 647
(1962). As already noted, the conveyances of the parcel now owned by Mr. and Mrs. Brooks
each carried appurtenances. The recorded documents establish the easement as appurtenant to
the Brooks parcel.
[Headnotes 3-5]
2. An easement thus acquired may be extinguished by abandonment, prescription and in
other ways not here relevant. The loss of an easement by abandonment depends upon a
finding of an intention to abandon and nonuse of the easement is, of course, evidence of such
intention. Rest. Prop. 504 (1944). The testimonial evidence when read most favorably to the
plaintiffs denies abandonment. The plaintiffs have used the road continuously for ingress to
and egress from their home which was built in 1961. Their predecessor had used the road
once or twice a week from 1950 to 1961 to haul hay and grain to animals. Indeed, from 1931
to 1941 the senior Jensens had chicken coops on the present site of the Brooks home and their
employees used the road during that time and no effort was made to deny such use. There is a
fence along the road and between the road and the Jensen home which has been there as long
as Minnie Jensen could remember. Perhaps controverting evidence will be presented if a full
trial occurs. At this juncture, however, abandonment cannot be found as a matter of law.
[Headnotes 6-8]
An easement may be extinguished by prescriptionthat is, use of the servient tenement by
the possessor of it which would be privileged if the easement did not exist, provided the use
is adverse to the owner of the easement and such adverse use is, for the period of prescription,
continuous and uninterrupted. Rest. Prop. 506 (1944). The period of prescription for
extinguishing an easement is the same as that fixed by local law for obtaining one. In Nevada,
that period is five years. Stix v. LaRue, 78 Nev. 9, 11, 368 P.2d 167 (1962); Howard v.
Wright, 38 Nev. 25, 29, 143 P. 1184 (1914). Although extinguishment by prescription is not
specifically pleaded in this case, the servient owner, Minnie Jensen, does claim fee title to the
23-foot strip by adverse possession, the elements of which, in large part, coincide with
prescription. It is for this reason that we mention extinguishment by prescription. It seems to
us that the facts already related concerning use of the way by the plaintiffs and their
predecessors prima facie denies loss of their easement by prescription.
by the plaintiffs and their predecessors prima facie denies loss of their easement by
prescription.
3. We have mentioned the counterclaim of Minnie Jensen through which she asserts fee
title to the 23-foot strip by adverse possession. It is her contention that full title to the 23-foot
strip and the entire parcel was acquired before the quitclaim correction deed was executed in
1940, because she had lived on the property since 1931, improved it, paid the taxes assessed
and claimed it as her own. Accordingly, the correction deed was ineffective as a conveyance
since Lena Jensen, by 1940, had lost title to that parcel by the adverse possession of her son
and daughter-in-law Minnie. In short, Lena had nothing to convey.
[Headnotes 9-11]
This contention would carry weight if the possession of the parcel by Minnie and A.
Jensen, Jr., was hostile to the senior Jensens. Actual and peaceable possession is not enough.
The possession must be hostile in its inception; actual, peaceable, open, notorious, continuous
and uninterrupted for the statutory period. McDonald v. Fox, 20 Nev. 364, 368 (1889).
Moreover, the evidence needed to show hostility must be stronger in a case between relatives
than that required in a case between strangers. Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891
(1966). Minnie and her husband moved onto the parcel in issue in 1931 under the mistaken
belief that it had been deeded to them. Thereafter, the senior Jensens used the road over that
parcel without objection by their grantees. Their possession was thought by all concerned to
be the possession of an owner of the parcel, and not possession adverse and hostile to the true
owner thereof. This is confirmed by the desire of Minnie Jensen to acquire lawful title by a
correction deed in 1940, which desire was accommodated by her mother-in-law. In these
circumstances hostile possession is denied as a matter of law. The case of Rodgers v.
Carpenter, 44 Nev. 4, 189 P. 67 (1920), is factually inapposite since it did not involve the
acquiescence of those originally concerned with possession to correct a mistake and to vest
title in line with their acknowledged intentions.
4. Minnie asserts that the easement, when reserved, was intended only to benefit the
dominant tenement in its then agricultural use, and may not now be burdened by Mr. and Mrs.
Brooks for domestic use. The reservation was not so restricted. It was simply for a road 23
feet in width. The use to which the road was to be put is not indicated by the documents, and
the record may be read to show that the change in use, if a noticeable change at all, simply
evolved along with the normal change in the character of the dominant tenement.
noticeable change at all, simply evolved along with the normal change in the character of the
dominant tenement. The issue of burden upon the servient estate cannot be said to have been
fully explored.
For the reasons expressed the decision below is reversed and the case remanded for trial.
____________
87 Nev. 179, 179 (1971) Shepp v. State
THOMAS EUGENE SHEPP, Appellant, v. STATE
No. 6076
April 28, 1971 484 P.2d 563
Appeal from jury conviction of two counts of burglary and of receiving stolen property and
from the order of the Second Judicial District Court, Washoe County, granting a new trial for
receiving stolen property; Grant L. Bowen, Judge.
The Supreme Court, Thompson, J., held that error in refusing to instruct that jury could
convict defendant of either burglary or receiving stolen property, but not both, was not cured
by setting aside the receiving convictions; both convictions should have been set aside and
new trial ordered.
The conviction of burglary, Count 1, is affirmed; the conviction of burglary, Count 2,
is reversed, and the order granting a new trial for receiving stolen property, Count 3, is
affirmed.
H. Dale Murphy, Public Defender, Washoe County, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,
1. Criminal Law.
A timely challenge to police officer's testimony during presentation of State's case in chief that defendant,
while in custody and after being advised of his rights, chose to remain silent rather than to respond to
interrogation, was not made and need not be considered by Supreme Court, where objection was not
interposed to such testimony until after each side had rested its case at which time, in the judge's chambers,
defense counsel moved to strike the same.
87 Nev. 179, 180 (1971) Shepp v. State
2. Criminal Law.
A mere passing reference to fact that defendant who, while in custody and after being advised of his
rights, chooses to remain silent rather than to respond to interrogation by officer, does not mandate
automatic reversal, where prosecutor does not refer to, emphasize or elaborate upon this aspect of officer's
testimony, and defendant testifies fully at trial. NRS 173.598.
3. Criminal Law.
In prosecution for burglaries and for receiving stolen property, it was not error to refuse to permit
defendant to testify that he was in Reno when offenses occurred because of his marital difficulties and state
of mental depression, since excluded testimony was innocuous and probative of nothing.
4. Burglary; Receiving Stolen Goods.
Since a thief cannot receive from himself the fruits of his larceny, jury must be instructed that it could
convict of either burglary or receiving, but not both.
5. Criminal Law.
Error in refusing to instruct that jury could convict defendant of either burglary or receiving stolen
property, but not both, was not cured by setting aside the receiving conviction; both convictions should
have been set aside and new trial ordered.
6. Searches and Seizures.
It was permissible to seize guitar in plain view in back seat of defendant's automobile during course of
inventory of automobile's contents.
Jewelry box and jewelry taken during burglary were not obtained as result of unconstitutional search and
seizure of defendant's automobile at police impound lot, where defendant's wife consented to search of
automobile, and prior to giving her written consent to search the defendant had authorized the police to
release the automobile to her. U.S.C.A.Const. Amend. 4.
8. Burglary.
In burglary prosecutions, it is proper to give instruction based on statute which provides that one who
unlawfully enters a building is deemed to have entered with the intent to commit larceny or a felony unless
such unlawful entry shall be explained by testimony satisfactory to jury to have been made without criminal
intent. NRS 205.065.
OPINION
Shepp was indicted in three counts for the crimes of burglary committed on May 30, 1969
(Count 1); burglary committed on May 28, 1969 (Count 2); and receiving stolen property
committed on May 30, 1969 (Count 3). He was convicted by a jury on all three counts, but
the court granted his motion for a new trial on the charge of receiving stolen property.
87 Nev. 179, 181 (1971) Shepp v. State
a new trial on the charge of receiving stolen property. He was sentenced to ten years in the
Nevada State Prison on each of the burglary counts, the sentences to be served concurrently.
This appeal presents several claims of error, some challenging all three convictions, and
others relating solely to the validity of the convictions on Counts 2 and 3. We turn first to
consider the alleged errors running to all convictions.
[Headnote 1]
1. (A) During presentation of the State's case in chief a police officer testified, in
substance, that the defendant, while in custody and after being advised of his rights, chose to
remain silent rather than to respond to interrogation. Objection was not interposed to such
testimony until after each side had rested its case at which time, in the judge's chambers,
defense counsel moved to strike the same. It is apparent that a timely challenge to such
testimony was not made and need not now be considered. Wilson v. State, 86 Nev. 320, 468
P.2d 346 (1970).
Even though this claim of error was not properly preserved for our attention, it is
worthwhile to observe that when timely objection is made some courts deem the reception of
such evidence to be reversible error. State v. Brown, 176 N.W.2d 16 (Neb. 1970); State v.
Klimczak, 268 A.2d 372 (Conn. 1970); State v. Bowman, 461 P.2d 735 (Kan. 1969). Those
courts consider Miranda v. Arizona, 384 U.S. 436 (1966), to forbid reference to the fact that
the privilege to remain silent was claimed in the face of custodial interrogation, and reverse
without regard to the rule of harmless error.
[Headnote 2]
In our view a mere passing reference to such silence, without more, does not mandate an
automatic reversal. The consequences should be governed by a consideration of the trial as a
whole. In this case, the prosecutor did not refer to, emphasize or elaborate upon this aspect of
the officer's testimony. Moreover, the defendant testified fully at the trial. Thus, any possible
prejudicial inference to be drawn from the officer's comment upon the defendant's failure to
respond to custodial questioning loses significance in the face of the detailed, lengthy
testimony offered by the defendant in court before the jury. Indeed, the jury permissibly could
infer that had the defendant responded to pretrial interrogation, his responses would
substantially conform to his testimony at trial. Thus, had timely objection been made we
would find the evidence harmless in this case. NRS 178.598.
87 Nev. 179, 182 (1971) Shepp v. State
[Headnote 3]
(B) The defendant was not allowed to testify as to the reason he was in Reno when the
offenses occurred. If allowed, he would have related his marital difficulties and state of
mental depression. The excluded testimony was innocuous and probative of nothing. The
court did not err.
[Headnotes 4, 5]
2. (A) Count 3 charged Shepp with having received property stolen by him during the
commission of the burglary charged in Count 2. Since a thief cannot receive from himself the
fruits of his larceny, the jury must be instructed that it could convict of either burglary or
receiving, but not of both. People v. Taylor, 40 P.2d 870 (Cal. 1935); People v. Morales, 69
Cal.Rptr. 553 (1968); Milanovich v. United States, 365 U.S. 551 (1961); Thomas v. United
States, 418 F.2d 567 (5 Cir. 1969); Baker v. United States, 357 F.2d 11 (5 Cir. 1966). Such an
instruction was requested but the court declined to give it. This was error, and later
acknowledged by the court to be such when it set aside the receiving conviction and ordered a
new trial on that charge. The appellate issue is whether that manner of handling the error
effectively cured it.
The error was not cured by the setting aside of the receiving conviction since there is no
way of knowing whether a properly instructed jury would have found the defendant guilty of
burglary, Count 2, or receiving, Count 3. Milanovich v. United States, supra. Both
convictions should have been set aside and a new trial ordered.
(B) A guitar, a jewelry box, and some jewelry were received in evidence over the objection
of defense counsel that they were obtained as a result of an unconstitutional search and
seizure of the defendant's car at the Sparks Police Department impound lot. Those items
apparently were taken during the May 28, 1969 burglary charged in Count 2, and were
probative of that charge and of the receiving charge, Count 3, as well.
[Headnotes 6, 7]
The guitar was in plain view in the back seat of Shepp's car and was seized during the
course of an inventory of the car's contents. This was permissible. Hughes v. State, 86 Nev.
584, 471 P.2d 245 (1970), re items in plain view; Heffley v. State, 83 Nev. 100, 423 P.2d 666
(1967), re inventory search. The jewelry box and jewelry were found in the car several days
later during a search in which the defendant's wife had consented. Prior to giving her written
consent to search, the defendant had authorized the police to release the car to her.
87 Nev. 179, 183 (1971) Shepp v. State
defendant had authorized the police to release the car to her. She thus enjoyed the right to
possession and control of the car, and enjoyed the implied authority to consent to an invasion
of her husband's privacy. Sartain v. United States, 303 F.2d 859 (9 Cir. 1962); United States
v. Eldridge, 302 F.2d 463 (4 Cir. 1962); Cf. Corngold v. United States, 367 F.2d 1 (9 Cir.
1966). In these circumstances the search was not unreasonable within the prohibition of the
Fourth Amendment.
[Headnote 8]
3. A final assignment of error, relevant only to the burglary convictions, attacks the
instruction based upon NRS 205.065 that one who unlawfully enters a building is deemed to
have entered with the intent to commit larceny or a felony unless such unlawful entry shall be
explained by testimony satisfactory to the jury to have been made without criminal intent. We
have denied this attack in several recent cases [Fritz v. State, 86 Nev. 655, 474 P.2d 377
(1970), and the cases therein cited] and once more do so.
The conviction of burglary, Count 1, is affirmed; the conviction of burglary, Count 2,
is reversed; the order granting a new trial for receiving stolen property, Count 3, is
affirmed.
____________
87 Nev. 183, 183 (1971) Harrison v. Dep't of Highways
J. ROSS HARRISON, JOSEPH M. FOLEY, DON L. BRADSHAW, MICHAEL G.
FOGLIANI, WALTER A. RAY, ROBERT I. OLSON, ARTHUR Z. HARTLEY, ROBERT
R. DOTSON and R. W. HILL, Appellants, v. DEPARTMENT OF HIGHWAYS OF THE
STATE OF NEVADA and Its Board of Directors PAUL LAXALT, HARVEY
DICKERSON, and WILSON McGOWAN; and JOHN E. BAWDEN, State Highway
Engineer, Respondents.
No. 6230
April 28, 1971 484 P.2d 716
Appeal from an order of the Fifth Judicial District Court, Nye County, denying the
issuance of a preliminary injunction; Kenneth L. Mann, Judge.
Residents, taxpayers and businessmen brought action to enjoin further effort on highway
construction project until proper legal preliminary procedures were followed in choosing
location of highway.
proper legal preliminary procedures were followed in choosing location of highway. The
district court denied a preliminary injunction and plaintiffs appealed. The Supreme Court,
Zenoff, C. J., held that even if policy and procedure memorandum describing in detail certain
procedures to be followed in determining location of highways was a regulation which was
required to be filed with Secretary of State and be made available for public inspection,
plaintiffs could not be heard to say they had no notice of the regulation where they appeared
at hearing and presented their arguments based on the policy and procedure memorandum.
Affirmed.
Gunderson, J., dissented.
Lionel, Sawyer & Wartman, of Las Vegas, for Appellants.
Robert List, Attorney General, and Melvin L. Beauchamp, Deputy Attorney General, of
Carson City, for Respondents.
1. Highways.
Even if policy and procedure memorandum describing in detail certain procedures to be followed in
determining location of highways was a regulation which was required to be filed with Secretary of State
and made available for public inspection, persons objecting to proposed location of highway could not be
heard to say they had no notice of regulation where they appeared at hearing and presented their arguments
based on the policy and procedure memorandum. NRS 233B.030, subd. 6, 233B.050-233B.070,
233B.050, subd 2, 408.590; 23 U.S.C.A. 128.
2. Highways.
Even if Department of Highways should have adopted policy and procedure memorandum describing
procedures to be followed in determining location of highways as a regulation, where persons objecting to
proposed location of highway had been afforded necessary hearings, it did not seem likely that decision to
locate highway would be found clearly erroneous, arbitrary or capricious and record indicated that
evidence was heard and that social, economic and environmental effects were weighed as required by the
policy and procedure memorandum, serious or doubtful questions of law did not exist such as would
warrant issuance of a preliminary injunction enjoining further efforts on project until proper legal
preliminary procedures were followed. NRS 233B.040, 233B.140.
OPINION
This case involves the long-debated Sunnyside Cutoff which the Nevada Department of
Highways decided to construct as State Highway 38. The appellants are residents, taxpayers
and businessmen of Lincoln County who object to the Department of Highways' location
of this highway.
taxpayers and businessmen of Lincoln County who object to the Department of Highways'
location of this highway.
The general route of Highway 38 was first established by the legislature in 1937 and has
since been changed to that now described in NRS 408.590. In 1967 the Nevada Department
of Highways proposed construction of the eleven mile section here in question. Five possible
locations were proposed.
Since the proposed highway was to be financed in part by federal funds the Nevada
Department of Highways was compelled by 23 U.S.C. 128, as amplified by Policy and
Procedure Memorandum 20-8, to consider, inter alia, the social, economic and environmental
effects of the possible locations. A survey was taken of drivers using the present highway,
notice of hearings was given, and the required hearings were held.
Shortly thereafter the Assistant Deputy Highway Engineer recommended selection of the
Sunnyside Cutoff. The Department of Highways drew up plans and specifications advertised
for bids, and later opened bids. At that time the appellants brought this action for a
preliminary injunction enjoining further efforts on this project until proper legal preliminary
procedures were followed in choosing the location of the highway.
Appellants' attack on this decision in the lower court and here on appeal is based on their
assertion that the Nevada Administrative Procedure Act was not properly followed. Two
objections are raised, first, that Policy and Procedure Memorandum 20-8 is a regulation
which must be properly filed in accordance with state law, and second, that the decision to
locate Highway 38 along the Sunnyside Cutoff was made in disregard of its social, economic
and environmental effects.
Appellants' request for a preliminary injunction was denied in the lower court, and from
that order this appeal follows. Further proceedings in the construction of the highway were
enjoined pending the determination of this appeal.
Because we are presented here with review of the denial of a preliminary injunction we
must determine whether there are serious and doubtful questions of law as to whether the
decision to locate Highway 38 was an improper one. Rhodes Co. v. Belleville Co., 32 Nev.
230, 239, 106 P. 561, 118 P. 813 (1910). We hold that the preliminary injunction was
properly denied because there are no such serious and doubtful questions of law.
[Headnote 1]
1. If Policy and Procedure Memorandum 20-8 is a regulation within NRS 233B.030(6),
it must be filed with the Secretary of State in compliance with NRS 233B.060 and
233B.070 and it must be made available for public inspection under NRS 233B.050.
Secretary of State in compliance with NRS 233B.060 and 233B.070 and it must be made
available for public inspection under NRS 233B.050. Policy and Procedure Memorandum
20-8 describes in detail certain procedures to be followed in determining the location of
highways. Assuming, arguendo, that as such this is a regulation because it describes the
organization, procedure or practice requirements of the Department of Highways (NRS
233B.030 (6)), nevertheless it seems apparent that the appellants may not obtain the new
hearing they seek because of NRS 233B.050(2).
That section provides for invalidating proceedings followed by an agency under
regulations which have not been properly made available to the public. If the persons seeking
to invalidate the proceedings had actual knowledge of the regulation, however, they may not
obtain relief under this section. That is the situation here. Appellants appeared at the hearing
and presented their arguments based on Policy and Procedure Memorandum 20-8. They may
not now be heard to say they had no notice of this regulation.
[Headnote 2]
2. Appellants also urge that the Department of Highways was obligated to adopt
regulations such as Policy and Procedure Memorandum 20-8 because of the direction of NRS
233B.040 that it shall adopt such regulations as are necessary to the proper execution of the
functions assigned to it by law. We note that as such this case presents a situation different
from that in Linnecke v. Dept. of Highways, 76 Nev. 26, 348 P.2d 235 (1960), where the
plaintiffs sought to use state courts to enforce compliance with a regulation that was solely
federal in character. Assuming, arguendo, that the Department of Highways was obligated to
adopt a regulation such as this, this court is given the power to provide recourse for acts in
violation of those regulations only by NRS 233B.140.
That section gives this court a very limited power to remand for further proceedings or to
modify or reverse the decision. Since the appellants have already been afforded the necessary
hearings we naturally decline to remand for a hearing. Moreover, reversal or modification of
the decision does not seem warranted. It does not seem likely that the decision to locate the
highway in this location would be found clearly erroneous or arbitrary or capricious. The
record indicates that much evidence was heard and that the social, economic and
environmental effects were weighed as required by Policy and Procedure Memorandum 20-8.
There do not appear to be serious or doubtful questions of law such as would warrant the
issuance of a preliminary injunction.
law such as would warrant the issuance of a preliminary injunction.
Affirmed.
Batjer, Mowbray, and Thompson, JJ., concur.
Gunderson, J., dissenting:
Subsequent to this court's decision in Linnecke v. Department of Highways, 76 Nev. 26,
348, P.2d 235 (1960), our legislature in 1965 adopted the Administrative Procedure Act. NRS
233B.010 et seq. Among other provisions that arguably bear on the issues before us, that
enactment unequivocally required respondent to [a]dopt regulations of practice, setting forth
the nature and requirements of all formal and informal procedures available, including a
description of all forms and instructions used by the agency. NRS 233B.050(1)(a).
Appellants' action was commenced on the assumption that respondent had filed Policy and
Procedure Memorandum 20-8 with the Secretary of State in attempted compliance with the
Administrative Procedure Act, their complaint being that the rules of practice contemplated
by PPM 20-8 had not been satisfied. Attempting to negate the force of this argument,
respondent has established that neither PPM 20-8 nor any other rules of practice have ever
been adopted by respondent; whereupon, appellants have urged that, this being the case, the
Administrative Procedure Act has clearly been violated. To me, the majority opinion does not
appear to dispose of what has thus come to be the paramount issue in the case.
It appears from the record that the judge of the lower court was somewhat startled to learn
that respondent had never complied with the clear mandate of the Administrative Procedure
Act, requiring respondent to adopt rules of practice. While he was ultimately able to
countenance this, my consternation is more abiding. Under the Administrative Procedure Act,
any citizen interested in supporting or opposing any of the proposed routes had a right to
know, prior to the hearings, the ground rules of practice under which they would be
conducted. This right was denied, not only to appellants, but to every citizen of White Pine,
Nye and Lincoln counties; and, however confident the agents of the State may be that they
reached a good result without a validly conducted hearing, a properly conducted hearing
might well have enabled them to reach a different and better result.
Inasmuch as respondent admits PPM 20-8 did not constitute rules of practice, I find it
unnecessary to discuss in detail the question of whether the provisions of that memorandum
were satisfied.
satisfied. I wish to note, however, that to me appellants' argument that the provisions of PPM
20-8 were not satisfied appeared more sophisticated and persuasive than one might ascertain
by reading the majority opinion.
____________
87 Nev. 188, 188 (1971) City of Henderson v. Bentonite
CITY OF HENDERSON, a Municipal Corporation, Appellant, v. BENTONITE, INC., and
STAGE CONSTRUCTION COMPANY, INC., Nevada Corporations, Respondents.
No. 6352
April 28, 1971 483 P.2d 1299
Appeal from judgment of the Eighth Judicial District Court, Clark County; Taylor H.
Wines, Judge.
Affirmed.
Monte J. Morris, City Attorney of Henderson, for Appellant.
Raymond E. Sutton, of Las Vegas, for Respondents.
OPINION
Per Curiam:
The issue in this declaratory judgment action is whether a series of ordinances of the City
of Henderson require the plaintiffs-respondents to install sidewalks for their Sunrise Trailer
Subdivision development. The district court held that sidewalks were not required, and this
appeal by the City followed.
The series of ordinances, 160, 259, 283, 293, 307 and 332, some of which have been
repealed wholly or in part by others are somewhat confusing when read in sequence.
Testimony was received upon the issue, but was not reported and transcribed for our review.
Because of the scanty record we are wholly unable to assess the validity of the judgment
entered below.
Affirmed.
____________
87 Nev. 189, 189 (1971) Corbin v. O'Keefe
KENNETH W CORBIN, Appellant, v. JAMES L. O'KEEFE and CHARLES P. O'KEEFE,
JOCKEY TURF CLUB, SIERRA TURF CLUB, Respondents.
No. 6363
April 28, 1971 484 P.2d 565
Appeal from an order of the Second Judicial District Court, Washoe County, granting
motion to dismiss for failure to state a claim upon which relief might be granted; John W.
Barrett, Judge.
Action by club patron to collect gambling debt allegedly owed by club. The district court
granted a motion to dismiss for failure to state a claim upon which relief might be granted,
and the patron appealed. The Supreme Court held that action did not lie for collection of a
gambling debt allegedly owed by a club to a patron.
Affirmed.
Stewart, Horton & McKissick, of Reno, for Appellant.
Goldwater, Hill, Mortimer and Sourwine, of Reno, for Respondents.
Gaming.
Action did not lie for collection of gambling debt allegedly owed by club to patron.
OPINION
Per Curiam:
By this action Kenneth W. Corbin seeks to recover $20,000 on a winning bet of $100 at
200-to-1 odds that the Boston Red Sox would win the American Baseball League pennant in
1967. Corbin placed the bet at the Jockey Turf Club in March 1967. When he attempted to
collect on the bet in the fall of 1967 the club's proprietors rebuffed his attempts on the basis
that the bet had been taken by an employee who failed to record it and who kept the money,
so the club never received the bet.
Corbin and his attorneys subsequently sought aid of the Nevada Gaming Control Board
but were denied relief. Thereafter, Corbin commenced this civil action seeking to enforce the
bet in the Second Judicial District Court. The court granted the respondents' motion to
dismiss on the basis that gambling debts are not collectible through the courts.
87 Nev. 189, 190 (1971) Corbin v. O'Keefe
1. It is clear from the complaint and record in this case that what is presented is a court
action for recovery of a gambling debt. Corbin makes recurring references to the asserted
arbitrariness of the Gaming Control Board in denying his claim, but he is not seeking review
of the administrative procedures followed. Therefore, we need not address such questions as
the asserted arbitrariness, exhaustion of administrative remedies and, indeed, the very
reviewability of administrative procedures in this area.
2. We are thus presented with the same question presented in Weisbrod v. Fremont Hotel,
74 Nev. 227, 326 P.2d 1104 (1958). Corbin concedes as much, but urges us to overturn
Weisbrod.
We decline to do so. This court has refused to aid in the collection of gambling debts for
nearly a century and we will not depart from those cases. See especially Scott v. Courtney, 7
Nev. 419 (1872); West Indies v. First Nat. Bank, 67 Nev. 13, 214 P.2d 144 (1950); and
Weisbrod.
Affirmed.
____________
87 Nev. 190, 190 (1971) Wiggins v. Hughes Tool Co.
BETTY WIGGINS, an Individual, and BETTY WIGGINS, Guardian Ad Litem for JONI
JEAN WIGGINS and MARK ALBERT WIGGINS, Appellants, v. HUGHES TOOL
COMPANY, a Delaware Corporation, Respondent.
No. 6350
April 29, 1971 484 P.2d 566
Appeal from summary judgment of Eighth Judicial District Court, Clark County; William
R. Morse, Judge.
Action by widow of airplane passenger, individually and as guardian of her two children,
for wrongful death of passenger in crash of private airplane about 45 minutes after it had
taken off from defendant's airport where it had been stored and refueled. The district court
entered summary judgment for defendant, and plaintiff appealed. The Supreme Court,
Mowbray, J., held that relationship between owner of airplane and owner of airport that
rented space for airplane was that of bailor and bailee; thus, airport owner's employee was
under no duty to prevent airplane owner's takeoff, even though he knew that both airplane
owner and his passenger were under the influence of intoxicants, and his failure to do so
was not proximate cause of passenger's death in subsequent crash.
the influence of intoxicants, and his failure to do so was not proximate cause of passenger's
death in subsequent crash.
Affirmed.
[Rehearing denied May 19, 1971]
George, Steffen & Simmons, of Las Vegas, for Appellants.
Cromer and Barker and Kent W. Michaelson, of Las Vegas, for Respondent.
Aviation.
Relationship between owner of airplane and owner of airport that rented space for airplane was that of
bailor and bailee; thus, airport owner's employee was under no duty to prevent airplane owner's takeoff,
even though he knew that both airplane owner and his passenger were under the influence of intoxicants,
and his failure to do so was not proximate cause of passenger's death in subsequent crash.
OPINION
This appeal is from a summary judgment for Hughes Tool Company and against Betty
Wiggins as an individual and as guardian of her two children, Joni Jean Wiggins and Mark
Albert Wiggins.
Betty commenced this action in the district court to recover damages for the alleged
wrongful death of her husband, Rommie Gene Wiggins, who was killed while flying as a
passenger in an airplane owned and piloted by Harold Carter. Hughes answered the complaint
and then moved for summary judgment on the grounds that there was no genuine issue as to
any material fact in the case and that Hughes was entitled to judgment as a matter of law.
NRCP 56(b).
1
The district judge agreed, and he granted summary judgment in favor of
Hughes. We affirm.
1. The Facts.
Harold Carter was the owner of a single-engine Navion aircraft. He kept the plane tied
down at the North Las Vegas Air Terminal, which is owned and operated by Hughes Tool
Company.2 About 4:30 a.m. on August 21, 1969, Carter and Wiggins, accompanied by
another man, arrived at the terminal in Carter's car.
____________________

1
NRCP 56(b):
A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought
may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any
part thereof.
Company.
2
About 4:30 a.m. on August 21, 1969, Carter and Wiggins, accompanied by
another man, arrived at the terminal in Carter's car. Upon Carter's request, one James Tilley
opened the terminal gate so that Carter could drive to his plane. Tilley was employed as a
lineman at the terminal on the 10 p.m. to 6 a.m. shift. Since the terminal was closed to the
public during those hours, Tilley was charged with admitting aircraft owners who maintained
their planes at the terminal, and with fueling the aircraft upon the owners' request, which he
did in this case, pursuant to Carter's instructions. Carter then signed the ticket for the gas, and
Tilley returned to the terminal office. About 5 minutes later, Tilley heard Carter warming up
his plane in preparation for takeoff on Runway 7. Since Runway 7 was being repaired, Tilley
radioed Carter and so advised him. He told Carter that Runway 22 was in service. Carter took
off on Runway 22, and his plane crashed about 45 minutes later near Ash Meadows, Nevada,
killing the occupants.
Although the record does not reflect the fact, the parties have agreed, for the purposes of
presenting the principal issue in this appeal, that sometime after Tilley had admitted Carter to
the terminal, but prior to Carter's takeoff, it was evident to Tilley that Pilot Carter was
substantially under the influence of alcohol and that Passenger Wiggins was heavily
intoxicated. It is plaintiff-appellants' position that, once Tilley became aware of the
condition of Carter and Wiggins, he then had a duty to prevent their takeoff, and that his
failure to so act was the proximate cause of the death of Wiggins.
2. The Hughes-Carter Relationship.
While the complete terms of the Hughes-Carter agreement have not been presented for our
consideration, from the record before us we conclude that the relationship between Carter and
Hughes was that of bailor-bailee. In Hendren v. Ken-Mar Airpark, Inc., 382 P.2d 288 (Kan.
1963), an aircraft owner who had rented space from a defendant airport took off while under
the influence of intoxicants, carrying a passenger who had also been drinking. The plane
crashed, killing both occupants. Sustaining a demurrer to a wrongful death action, the court
ruled, 382 P.2d at 295:
The hangaring of the particular airplane in question by Ken-Mar involves the legal
principle of bailment. The cases [cited earlier] are clear that the act of Ken-Mar in furnishing
hangar space for the Pegasus [Flying Club, owner of the] airplane upon its premises
created a bailor-bailee relationship between those parties. . . ."
____________________

2
Counsel cannot tell us, nor does the record reflect the complete terms of the Hughes-Carter agreement or
whether it was oral or written.
hangar space for the Pegasus [Flying Club, owner of the] airplane upon its premises created a
bailor-bailee relationship between those parties. . . .
The court concluded, 382 P.2d at 296:
. . . Ken-Mar, even if it had full knowledge of the contemplated flight by St. Vrain [a
member of the Pegasus Flying Club and presumably the pilot] and the appellants' decedent
prior to take-off, would have had a duty as bailee to surrender possession of the plane upon
demand and to allow the use of its airport for the take-off.
In the case of Baruch v. Beech Aircraft Corp., 175 F.2d 1, 3 (10th Cir. 1949), the court
ruled:
The trial court properly treated the relationship between Baruch [owner of a plane
destroyed in a crash while operated by Baruch's pilot, who had been drinking] and Beech [the
defendant airport] as bailor and bailee, which required the surrender of the possession of the
plane upon Baruch's agent's [the pilot's] demand, and the use of its airport to take it off. . . .
Realistically speaking, it is difficult to fathom just how Tilley could have prevented
Carter's takeoff. It is true that Tilley gassed the aircraft at Carter's request, which service was
available to all owners who maintained their aircraft at the terminal. In a controlled airport,
takeoffs and landings are under the direction and clearance of a control tower. But North Las
Vegas Air Terminal was not a controlled airport in August 1969.
This court ruled as follows in Mills v. Continental Parking Corp., 86 Nev. 724, 725, 475
P.2d 673, 674 (1970) a bailor-bailee case involving a parking-lot attendant having custody of
the car keys of an owner who had parked his car on the lot and who later returned under the
influence of intoxicants and was given his keys:
. . . The negligent entrustment theory of tort liability does not apply to the normal
bailor-bailee relationship since the bailee is duty bound to surrender control of the car to the
bailor upon demand or suffer a possible penalty for conversion. Indeed, if the bailee refuses to
return the car at the end of the bailment it is presumed that the car was converted by him. . . .
In the present case, Tilley had no control of the plane. The keys were in Carter's possession
at all times. Tilley merely admitted Carter and his friends to the terminal and fueled the plane.
Regrettably, the tragic crash occurred 45 minutes later near Ash Meadows, Nevada.
near Ash Meadows, Nevada. However, to impose civil liability on Hughes Tool Company, on
the theory that Tilley had a duty to prevent Carter's takeoff and that Tilley's failure to do so
was the proximate cause of Wiggins's death is incomprehensible. Therefore, the order
granting summary judgment is affirmed.
We concur.
Zenoff C. J. Batjer, Thompson, and Gunderson, JJ., concur.
____________
87 Nev. 194, 194 (1971) Fairman v. State
EARL FAIRMAN, Appellant, v. THE STATE
No. 6532
April 29, 1971 483 P.2d 1299
Appeal from conviction of sale of narcotics by Eighth Judicial District Court, Clark
County; William R. Morse, Judge.
Affirmed.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy of Appeals, Clark County, for Respondent.
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to support the verdict finding
Fairman guilty of the sale of narcotics. NRS 453.030; NRS 453.210(2).
We have reviewed the evidence in the record, and it supports the verdict. It shall not be
disturbed on appeal.
____________
87 Nev. 195, 195 (1971) Hartford Ins. v. Statewide Appliances
THE HARTFORD INSURANCE GROUP as Subrogee of EUGENE J. WIEDENBECK and
MARY LOU WIEDENBECK, Appellants, v. STATEWIDE APPLIANCES, INC., and
JOSEPH LEE BURCHETT, Respondents.
No. 6248
May 3, 1971 484 P.2d 569
Appeal from judgment dismissing plaintiff's action because of running of statute of
limitations. Second Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Action against sellers of water heater seeking money damages for injury to home as result
of explosion and fire caused by fact that water heater was equipped for use with natural gas,
not propane gas as allegedly represented by sellers, brought on theory of breach of express
and implied warranties. The district court dismissed the action on ground of running of statute
of limitations, and plaintiff appealed. The Supreme Court, Zenoff, C. J., held that, insofar as
action sought damages for injury to the personalty within home, action was one for taking,
detaining or injuring personal property, and thus barred by three-year statute of limitations,
but that, insofar as it sought damages for injury to the realty, it was neither action for waste
or trespass of real property nor action upon a contract, obligation or liability not founded
upon an instrument in writing and thus was covered by four-year catch-all statute.
Stewart & Horton, and Joseph P. Reynolds, of Reno, for Appellants.
Erickson & Thorpe, of Reno, for Respondents.
1. Pleading.
Where pleadings sought damages for injury to home as result of explosion and fire, home would be
construed as including personalty as well as realty.
2. Limitation of Actions.
Word action, within statute providing three-year limitation with respect to certain actions, refers to the
nature or subject matter and not to the denomination of the action by the pleader. NRS 11.190, subd. 3.
Action against sellers of water heater, seeking money damages for injury to personalty in home as result
of explosion and fire caused by fact that heater was equipped for use with natural gas, not propane gas as
allegedly represented by sellers, was governed by three-year limitations statute covering
actions for "taking, detaining or injuring personal property" rather than four-year
statute covering actions "upon a contract, obligation or liability not founded upon
instrument in writing", though plaintiff sued on theory of breach of express and
implied warranties.
governed by three-year limitations statute covering actions for taking, detaining or injuring personal
property rather than four-year statute covering actions upon a contract, obligation or liability not founded
upon instrument in writing, though plaintiff sued on theory of breach of express and implied warranties.
NRS 11.190, subds. 2(c), 3(c).
Action against sellers of water heater, seeking money damages for injury to home resulting from
explosion and fire caused by fact that heater was equipped for use with natural gas, not propane gas as
allegedly represented by sellers, asserting theories of breach of express and implied warranties was not,
with respect to damage to the realty, either action for waste or trespass of real property subject to
three-year limitation or action upon a contract, obligation or liability not founded upon an instrument in
writing subject to four-year limitation, and thus fell into four-year catch-all statute. NRS 11.190,
subds. 2(c), 3(b), 11.220.
OPINION
The appellate question concerns the appropriate period of limitations in an action for
damages that arose under the following circumstances. Hartford, as subrogee of the
Wiedenbecks, alleged in two counts that the defendants, Statewide Appliances, Inc., and
Joseph Lee Burchett, breached express and implied warranties that a water heater had been
converted for the use of propane gas. The prayer for relief requested money damages.
The Wiedenbecks purchased a water heater from Statewide and Burchett about March 24,
1966. They told the sellers that the water heater was to be for the use of propane gas and the
sellers warranted it to have been converted from natural gas to propane gas suitable for such
use. After installation and use of the water heater on March 24, 1966 there was an explosion
and fire which caused damages to the home in the amount of $13,274.19. The cause of the
explosion was that the water heater was equipped for use with natural gas, not propane gas.
The Wiedenbeck's insurer, Hartford Insurance Group, reimbursed them under their home
insurance policy and thereby became subrogated to their rights against the defendants. Three
and one half years after the explosion, on October 1, 1969, Hartford filed this action seeking
recovery of the $13,274.19 from the sellers of the heater.
The trial court granted the seller's motion to dismiss on the ground that NRS 11.190(3)
bars actions for injuries to property not brought within three years of accrual of the cause of
action.
action. Hartford asserts the applicability of the statute of limitations relating to actions on
contract, NRS 11.190(2)(c), that is, that an action for breach of express and implied
warranties seeking consequential property damages is an action upon a contract obligation or
a liability not founded upon an instrument in writing. NRS 1 1.190(2)(c) would provide a
four-year statute of limitation.
1. The pertinent provisions of the limitations statute are as follows:
NRS 11.190 Periods of limitations prescribed. Actions other than those for the recovery
of real property, unless further limited by NRS 11.205 or by or pursuant to the Uniform
Commercial Code, can only be commenced as follows:
. . .
2. Within 4 years:
. . .
(c) An action upon a contract, obligation or liability not founded upon an instrument in
writing.
3. Within 3 years:
. . .
(b) An action for waste or trespass of real property. . . .
(c) An action for taking, detaining or injuring personal property. . . .
[Headnote 1]
The nature of the action is one of damages to the home. The record does not specify the
division of the damage apportioned to the realty as it is commonly understood, and to the
personalty, such as furniture, clothing and appliances. The word home singularly used in
the pleadings implies under the circumstances of this action that personalty is included in the
term. Cf. Re Stephan's Will, 98 N.Y.S.2d 416 (Sur.Ct. 1950), wherein the court held that
furniture may pass under a devise of the home if no mention of the furniture is otherwise
made. But see Meyer v. Benelli, 415 P.2d 415 (Kan. 1966); Annot. 29 A.L.R.3d 574 8
(1970). We must treat this case as involving damage both to real property and personal
property, therefore.
[Headnotes 2, 3]
2. It is manifest from the complaint that this is an action for damage upon a claim for
property injuries. The term action in NRS 11.190(3) refers to the nature or subject matter
and not to what the pleader says it is. Cf. Santor v. A and M Karagheusian, Inc., 207 A.2d 305
(N.J. 1965). We look to the real purpose of the complaint which in this case does not seek
recovery for a breach of an agreement to sell, but instead claims recovery for damages to
property.
does not seek recovery for a breach of an agreement to sell, but instead claims recovery for
damages to property. This case does not involve the relations between the parties except that
the liability is predicated upon a duty on the part of the seller, not upon the obligations
created by their contract to sell. Automobile Ins. Co. of Hartford v. Union Oil Co., 193 P.2d
48, 51 (Cal.App. 1948); Howe v. Pioneer Manufacturing Company, 68 Cal.Rptr. 617
(Cal.App. 1968); District of Columbia Armory Board v. Volkert, 402 F.2d 215 (D.C. Cir.
1968); Friedman v. Peoples Service Drug Stores, Inc., 160 S.E.2d 463 (Va. 1968); Andrianos
v. Community Traction Co., 97 N.E.2d 549 (Ohio 1951).
1
This action may not be said to be
upon a contract insofar as it seeks recovery for injuries to personal property because NRS
11.190(3)(c) specifically governs such an action.
[Headnote 4]
3. On the other hand, NRS 11.190(3) is void of any specific provision for damage to realty
except insofar as NRS 11.190(3)(b) makes provision for waste or trespass. We will not strain
our imagination to label this action for trespass on the case as one in trespass as that term is
used in this statute. Cf. Norwood v. Eastern Oregon Land Co., 5 P.2d 1057 (Ore. 1931); and
Battles v. Nesbit, 27 A.2d 694 (Pa. Super. 1941).
Nor do we choose to construe the term liability as it is used in NRS 11.190(2)(c), so as
to turn that statute into a catch-all statute. Rather, NRS 11.220,
2
the catch-all statute, is
appropriate. We note that the California code, from which NRS 11.190 was taken, formerly
spoke only of trespass upon real property but was amended in 1921 to speak also of injuries
to real property. Apparently the draftsmen of the earlier statute did not foresee trespass on
the case actions for damage to real property. Though California has corrected this oversight,
the Nevada legislature has not. Therefore, rather than abuse the terms trespass or liability,
we deem the part of this action which seeks recovery for damages to real property as falling
within NRS 11.220.
____________________

1
We need not address at length the question of classification of an implied warranty action as tort,
contract, or neither, though this presents a timely question of much significance. Jaeger, Product Liability: The
Constructive Warranty, 39 Notre Dame Law. 501 (1964); Schwarts, A Products Liability Primer, 33 J. Am. Trial
Law. Ass'n 64, 92 (1970).

2
NRS 11.220: Action for relief not hereinbefore provided for. An action for relief, not hereinbefore provided
for, must be commenced within 4 years after the cause of action shall have accrued.
as falling within NRS 11.220. But see Italiani v. Metro-Goldwyn-Mayer Corporation 114
P.2d 370 (Cal.App. 1941); and Comment, 9 Cal.L.Rev. 71 (1920).
Suit for recovery of damages to the personalty is barred by NRS 11.190(3)(c). Suit for
recovery of damages to the realty is not covered by NRS 11.190, but instead falls within NRS
11.220.
Batjer, Mowbray, and Thompson, JJ., and Mann, D. J., concur.
____________
87 Nev. 199, 199 (1971) State v. Craig
STATE OF NEVADA, Appellant, v. RAYMOND
KENNETH CRAIG, Respondent.
No. 6372
May 3, 1971 484 P.2d 719
Appeal from an order of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The district court dismissed indictment for failure to bring accused to trial within 60 days
after finding of indictment, and State appealed. The Supreme Court held that trial court did
not abuse discretion in dismissing indictment, though accused was not arrested until after
expiration of a 60-day period, where accused was out on bail and amenable to arrest at all
times during such period.
Affirmed.
Robert List, Attorney General, Margie A. Richards, Deputy Attorney General, and Roy A.
Woofter, District Attorney, Clark County, for Appellant.
Jack J. Pursel, of Las Vegas, for Respondent.
1. Criminal Law.
Absent showing of abuse of discretion, Supreme Court will not interfere with trial court's exercise of its
power to dismiss indictment for failure of State to bring accused to trial within 60 days. NRS 178.556.
2. Criminal Law.
Trial court did not abuse discretion in dismissing indictment for failure to bring accused to trial within 60
days after finding of the indictment, though defendant was not arrested until after
expiration of the 60-day period, where defendant was out on bail and amenable to
arrest at all times during such period.
87 Nev. 199, 200 (1971) State v. Craig
of the indictment, though defendant was not arrested until after expiration of the 60-day period, where
defendant was out on bail and amenable to arrest at all times during such period. NRS 178.556.
3. Criminal Law.
Court need not grant motion to dismiss indictment if delay in bringing accused to trial was caused by the
accused, accused waived his right to speedy trial, or delay was excusable under the circumstances. NRS
178.556.
4. Criminal Law.
It is not necessary to dismissal of indictment for failure to bring accused to trial within 60 days after
finding of indictment that accused show that he was prejudiced. NRS 178.556.
OPINION
Per Curiam:
The appellate issue is whether there was an abuse of discretion when the district court
dismissed an indictment against Raymond Kenneth Craig for failure to bring the accused to
trial within 60 days after the finding of an indictment.
The relevant facts bearing upon this issue are these:
An indictment was returned February 19, 1970 charging Craig with the illegal sale of
narcotics. NRS 453.030 and NRS 453.210(2). He was arrested on the indictment June 18,
1970. At all times between these dates he was amenable to arrest.
1

[Headnote 1]
NRS 178.556 gives the court discretionary power to dismiss an indictment should the State
fail to bring an accused to trial within 60 days after the finding of the indictment. Unless there
is a sufficient showing of an abuse of discretion by the court in exercising that power, we will
not intrude.
[Headnotes 2-4]
It is the State's contention that Craig could not have been tried within 60 days after the
finding of the indictment since he had not been arrested on the indictment until after
expiration of the 60-day period. The State also contends every reasonable effort was made to
give Craig a speedy trial.
Neither case authority nor the record on appeal upholds the State's contentions. In a proper
case,
2
the period between the finding of the indictment and the arrest will be counted in
computing whether the statutory limitation has been violated.
____________________

1
On January 13, 1970 Craig had been arrested on the same charge pursuant to a complaint filed in the
justices' court and was out on bail. It was not until 60 days had expired after the finding of the indictment that the
state elected to proceed on the indictment by moving for a dismissal of the complaint.

2
The court need not grant a motion to dismiss if the delay was caused by the accused, the accused waived his
right to a speedy trial, or the delay was excusable under the circumstances.
87 Nev. 199, 201 (1971) State v. Craig
finding of the indictment and the arrest will be counted in computing whether the statutory
limitation has been violated. McCandless v. District Court of Polk County, 61 N.W.2d 674,
677 (Iowa 1953); Wilson v. Superior Court of San Francisco, 271 P.2d 156 (Cal. 1954). It is
not necessary that the accused show he was prejudiced by incarceration. The constitutional
right to a speedy trial, not only protects an accused's liberty, but also affords protection from
public scorn, deprivation of employment as well as other social concerns. McGee v. Sheriff,
Clark County, 86 Nev. 421, 470 P.2d 132 (1970). Where McGee was concerned with the
constitutional right to a speedy trial, NRS 178.556 is relevant in evaluating whether that right
has been violated. In the circumstances disclosed by this record it was permissible for the
court to start the 60-day period running from February 19 when the indictment was returned
instead of when Craig was arrested.
The fact that Craig was out on bail and the State could have brought him back to Las
Vegas at any time destroys the contention that every reasonable effort was made to give Craig
a speedy trial.
The order below is affirmed.
____________
87 Nev. 201, 201 (1971) Heitman v. Bank of Las Vegas
JACK HEITMAN, Surviving Husband and Heir of BETTY ANN HEITMAN, Deceased,
Appellant, v. BANK OF LAS VEGAS, a Nevada Corporation, Respondent.
No. 6343
May 3, 1971 484 P.2d 572
Appeal from order of the Eighth Judicial District Court, Clark County, granting summary
judgment; Clarence Sundean, Judge.
Wrongful death action by surviving husband and sole heir of wife who was killed by bank
robber while she was on duty as bank teller. The district court granted summary judgment to
bank upon ground that rights and remedies provided by State Industrial Insurance Act were
exclusive, and husband appealed. The Supreme Court, Thompson, J., held that whether wife
was assailed for reason having nothing to do with her employment or whether she was shot
simply because she happened to be employed at bank was fact issue precluding summary
judgment.
Reversed.
Michael L. Hines and Henry R. Gordon, of Las Vegas, for Appellant.
Rose, Pico & Norwood, of Las Vegas, for Respondent.
1. Workmen's Compensation.
Words next of kin, as used in Industrial Insurance Act, include heirs who are not blood relations. NRS
616.370, subd. 1.
2. Judgment.
In wrongful death action by surviving husband and sole heir of wife who was killed by bank robber while
she was on duty as bank teller, whether wife was assailed for reason having nothing to do with her
employment or whether she was shot simply because she happened to be employed at bank was fact issue,
precluding summary judgment. NRS 616.020, 616.270 616.370, subd. 1, 616.615, subd. 3.
OPINION
Betty Heitman was killed by a bank robber while she was on duty as a teller for the Bank
of Las Vegas. The Bank had accepted the provisions of the Nevada Industrial Insurance Act,
and Betty had not rejected coverage. Consequently, the Nevada Industrial Commission paid
all death benefits due under NRS 616.615. Jack Heitman, the surviving husband and sole heir
of Betty, commenced this wrongful death action against the Bank to recover damages
charging negligence in failing to provide proper safety devices and robbery alarm systems.
The district court granted summary judgment to the Bank upon the ground that the rights and
remedies provided by the Nevada Industrial Insurance Act are exclusive. NRS 616.370(1).
1
This appeal is from that judgment.
1. The statutory preclusion of suit extends to the employee, his personal or legal
representatives, dependents or next of kin. In this case it is conceded that the
widower-plaintiff is not the personal or legal representative of his deceased wife. Moreover, it
is agreed that he was not dependent upon her for support.
2
He asks that we set aside the
summary judgment since, as a matter of law, he cannot be deemed
____________________

1
NRS 616.370(1): The rights and remedies . . . for an employee on account of an injury by accident
sustained arising out of and in the course of the employment shall be exclusive . . . of all other rights and
remedies of the employee, his personal or legal representatives, dependents or next of kin, at common law or
otherwise, on account of such injury.

2
A wholly dependent widower without children is entitled to compensation under the Act. NRS 616.615(3).
a next of kin of his deceased wife, and is, therefore, outside of the statutory prohibition.
[Headnote 1]
Normally, the words next of kin mean the nearest blood relations according to the law of
consanguinity and do not include a widow or widower. For the purposes of industrial
insurance, however, the normal connotation is relaxed to include heirs who are not blood
relations. McDonald v. Miner, 32 N.E.2d 885 (Ind. 1941); England v. Dana Corporation, 428
F.2d 385 (7 Cir. 1970); Horney v. Meredith Swimming Pool Company, 148 S.E.2d 554 (N.C.
1966). We prefer this view since it accommodates the overriding objective of our Industrial
Insurance Act to provide a remedy which is expeditious and independent of proof of fault and
also a liability which is limited and determinative. We hold that the words next of kin used
in 616.370(1) include heirs who are not blood relations. Our holding on this point, however,
does not automatically mandate an affirmance of the judgment below, since the exclusive
remedy provided by the Act governs only those cases in which the accidental injury or death
of the employee arose out of and in the course of employment. NRS 616.270. We turn to
address this aspect of the appeal.
[Headnote 2]
2. When a third party assails an employee on duty the inquiry is whether the injury or
death arose out of her employment. McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957). If
the employee was assailed because of a personal grudge, animosity or other personal relations
having nothing to do with her employment, the Act does not bar this suit. On the other hand,
if she was shot simply because she happened to be there, the Act is operative and covers the
circumstances. This is the holding of McColl, supra.
3
In the case at hand none of the papers
relied upon to support or defeat the Bank's motion for summary judgment are directed to this
point. For this reason alone, we are compelled to reverse the summary judgment and remand
for further proceedings. It should be possible to explore and resolve this limited issue by
additional pretrial inquiry.
____________________

3
NRS 616.020 defines an accident as an unexpected or unforeseen event happening suddenly and violently
with or without human fault, and producing at the time objective symptoms of injury. This definition embraces a
willful shooting by a third party assailant causing injury or death to an employee. Hudson v. Roberts, 270 P.2d
837 (Idaho 1954). This is a necessary corollary of our ruling in McColl v. Scherer, supra, wherein we cited
Hudson v. Roberts with approval.
to explore and resolve this limited issue by additional pretrial inquiry.
Reversed.
Batjer, Mowbray, and Gunderson, JJ., and Waters, D. J., concur.
____________
87 Nev. 204, 204 (1971) Worrell v. Barnes
MILDRED I. WORRELL, Now Known as MILDRED I. SANDERSON, Appellant, v.
WILLIS BARNES, dba BARNES CONTRACTING, Respondent.
No. 6252
May 4, 1971 484 P.2d 573
Appeal from order of the Fifth Judicial District Court, Mineral County, granting motions
to dismiss. Kenneth L. Mann, Judge.
Action by homeowner against contractor for damage to home from fire resulting from
leaky gas fitting installed by defendant while remodeling plaintiff's home. The district court
dismissed plaintiff's causes of action, based on strict liability and breach of warranty and
entered judgment on verdict for defendant on negligence theory, and plaintiff appealed. The
Supreme Court, Zenoff, C. J., held that leaky gas fitting was within definition of defective
product; thus, homeowner could maintain action against contractor, who installed leaky
fitting while connecting hot water heater to originally installed gas system resulting in fire
damage to home based on doctrine of strict liability.
Bradley & Drendel, Ltd., of Reno, for Appellant.
Diehl, Recanzone & Evans, of Fallon, for Respondent.
1. Gas.
Leaky gas fitting was within definition of defective product; thus, homeowner could maintain action
against contractor, who installed leaky fitting while connecting hot water heater to originally installed gas
system resulting in fire damage to home based on doctrine of strict liability.
2. Torts.
Although manufacturer and seller of products are not held liable as insurers and their liability is not
absolute simply upon evidence of injury from the products alone, and it is claimant's burden to
demonstrate that the product was defective and that defect arose out of design or
manufacture while article was in control of the manufacturer, it makes no difference
whether the manufacturer was or was not negligent, acted in good faith, or even took
every possible precaution to prevent defects, and if in fact the article was defective
when it left the manufacturer's control, liability will be imposed.
burden to demonstrate that the product was defective and that defect arose out of design or manufacture
while article was in control of the manufacturer, it makes no difference whether the manufacturer was or
was not negligent, acted in good faith, or even took every possible precaution to prevent defects, and if in
fact the article was defective when it left the manufacturer's control, liability will be imposed.
3. Sales.
Contractor, who installed leaky gas fitting in home while connecting water heater to originally installed
gas system, manufactured goods within purview of Uniform Commercial Code; thus, homeowner could
maintain action against contractor for resulting fire damage to home under theory of breach of statutory
implied warranty. NRS 104.2105, subd. 1, 104.2315.
4. Gas.
Failure of contractor, who installed leaky gas fitting while connecting hot water heater to originally
installed gas system, to obtain license from State Liquefied Petroleum Gas Board was not germane to issue
of contractor's negligence where there was no causal connection between failure to obtain license and
resulting fire, and contractor's employee who installed fitting had ten years' experience working with
copper tubing and connecting it. NRS 590.465-590.645.
OPINION
In Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), this court applied
the doctrine of strict liability to the field of foodstuffs and bottled beverages. In Ginnis v.
Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970), the doctrine was applied to the design
and manufacture of all types of products, in that case a revolving door. The principal question
of this appeal is whether the doctrine will be applied to the composition and installation of a
residential gas system which was added to the gas system that was originally installed in the
construction of a house.
Willis Barnes, doing business as Barnes Contracting, contracted with Mrs. Mildred I.
Sanderson, formerly known as Mildred I. Worrell, to remodel her house situated on the edge
of Walker Lake near Hawthorne, Nevada. The work consisted of some carpentry work and
the connection of various appliances in the house to an already existing liquefied petroleum
gas system. The appliances were not supplied by Barnes.
Part of the contract called for the installation of a water heater in the bathroom. To connect
the water heater a line was run from the bathroom down through the floor and to the
connector.
connector. A leaky fitting which was part of the added work and which was under the
bathroom allowed propane to escape and form a pool under the bathroom. The draft from the
water heater drew propane up around the pipes leading to the bathroom up to the flame of the
water heater and it ignited. The flame followed the gas back to where the gas was escaping
from the fitting, melted the fitting and set the house afire, damaging the house and its
contents.
Mrs. Sanderson alleged negligence on the part of Barnes as one cause of action and later
amended the complaint to allege a second cause of action based on strict liability and a third
cause of action based on breach of warranty. The second and third causes of action were
dismissed by the court and the jury returned a verdict in favor of the defendant on the first
cause of action which was grounded on negligence.
[Headnote 1]
1. Courts and commentators have been proceeding apace in advancing theories of action
in products liability cases since MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916).
See Comment, 15 Wayne L.Rev. 1558 (1969), and Comment, 23 Wash. & Lee L.Rev. 101
(1966). To a large extent on the basis of Dean Prosser's urgings, innocent consumers have
been allowed to sue manufacturers for injuries caused by defective products. See W. Prosser,
The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960);
and W. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev.
791 (1966). Under the theories advanced, injured consumers have been allowed to proceed on
the theory of strict liability, which requires no showing of negligence. Shoshone Coca-Cola,
supra, and Ginnis, supra; Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1962);
Fisher v. Simon, 112 N.W.2d 705 (Wis. 1961).
[Headnote 2]
The manufacturer and seller are not held liable as insurers and their liability is not absolute
simply upon evidence of injury alone. See P. Keeton, Products Liability, 41 Tex.L.Rev. 855,
858 (1963). Rather, it is the claimant's burden to demonstrate that the product was defective
and that the defect arose out of design or manufacture while the article was in the control of
the manufacturer. However, it makes no difference whether the manufacturer was or was not
negligent, acted in good faith, or even took every possible precaution to prevent defects.
defects. If in fact the article was defective when it left the manufacturer's control, liability will
be imposed. Rapson, Products Liability under Parallel Doctrines; Contrasts between the
Uniform Commercial Code and Strict Liability in Tort, 19 Rutgers L.Rev. 692, 698 (1965).
There is a strong and growing tendency where there is no blame on either side to ask who can
best bear the loss and hence to shift the loss by creating liability where there has been no
fault. Prosser, Law of Torts, p. 508 (3d ed. 1964).
As in the application of the doctrine to cases where injury was caused by foodstuffs,
automobiles, medicine and others, strict liability has been applied to homes or builders. The
nature of the product is such that superior and exclusive knowledge in the builder or
fabricator is called for and he therefore must bear the responsibility of its quality within
reasonable limits. Schipper v. Levitt & Sons, Inc., 207 A.2d 314 (N.J. 1965); Humber v.
Morton, 426 S.W.2d 554 (Tex. 1968); Kriegler v. Eichler Homes, Inc., 74 Cal.Rptr. 749
(Cal.App. 1969). Especially is this true where, as here, the contractor deals with a hazardous
product. Cf. Annot., 80 A.L.R.2d 598 (1961); and 1 R Hursh, American Law of Products
Liability 6.24 (1961).
The ordinary purchaser is not more capable of detecting a defect in a chimney flue or vent
of a heating apparatus (Schipper, supra) or faulty plumbing covered by a concrete slab
foundation (Humber, supra), in a house erected by a builder of two than in one constructed by
a quantity builder of 200. Avner v. Longridge Estates, 77 Cal.Rptr. 633 (Cal.App. 1969);
1969-70 Annual Survey of American Law, p. 474; 13 A.L.R.3d 1057, 1097 (1967). When a
plaintiff proves that while he was using an instrumentality in a way it was intended to be used
he was injured as a result of a defective design and/or manufacture which made the
instrumentality unsafe for its intended use, and that he was unaware of the defect his burden
has been accomplished. Restatement of Torts 2d, Comment G, 402A. An owner relies upon
the skill of the fabricator of a piping system, and he has a right to expect freedom from injury
on the basis of the fabricator's superior knowledge.
The product which Mrs. Sanderson claims was defective was that part of the gas system
which Barnes added onto the original gas system that had already been installed in her house.
Experts testified it was their opinion that the fire started from a leaky fitting underneath the
bathroom. Mrs. Sanderson testified that after the work was completed on the house no
one else worked on it so the product was not changed after it had left Barnes' employee's
hands.
testified that after the work was completed on the house no one else worked on it so the
product was not changed after it had left Barnes' employee's hands.
The leaky fitting comes within the definition of a defective product. It would be
unreasonable to expect Mrs. Sanderson to know the intricacies of the gas connections and the
system. She relied on Barnes' skill to furnish a suitable product. The system consisted of
fabrications of copper tubing through fittings, a subject not within the knowledge of one not
educated in that work. It was Barnes' duty to see that the house was safe for occupancy within
the limits at least of the work he was to perform and the product he was to furnish.
[Headnote 3]
2. In dismissing Mrs. Sanderson's common-law action in strict liability, the lower court
also dismissed her action for breach of statutory implied warranty. Both actions were
dismissed apparently on the basis that Barnes had not manufactured goods.
As we hold that Barnes must be said to have manufactured and sold a product so as to
bring into operation the doctrine of strict liability, so also must we deem this case to involve
goods within the purview of the Uniform Commercial Code. NRS 104.2315 and
104.2105(1). See Rapson, 19 Rutgers L.Rev. 692 (1965); Newmark v. Gimbels, Inc., 258
A.2d 697 (N.J. 1969).
[Headnote 4]
3. Another ground asserted for appellate review was the refusal of the trial court to allow
the appellant to enter into evidence respondent's failure to obtain a license from the Nevada
Liquefied Petroleum Gas Board as required under NRS 590.465 through 590.645. There
being no causal connection between the purported violation of the ordinance and the accident,
failure to have a license by itself was not germane to the issue of negligence. Lietaert v.
Shinners, 75 Nev. 509, 347 P.2d 282 (1959). As a matter of fact, Barnes' employee, Mr.
Clark, had ten years' experience working with copper tubing and connecting it. Nor do we
find that the court committed error in failing to give a proper instruction pertaining to the
standard of care required when handling a dangerous substance because the jury had been
otherwise instructed on the subject. Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d
498 (1967).
We decide, however, that the trial court erred in compelling the plaintiff to present her
case on the basis of purported negligence and depriving her of the benefits of the
common-law doctrine of strict liability and the statutory rule of implied warranty.
the plaintiff to present her case on the basis of purported negligence and depriving her of the
benefits of the common-law doctrine of strict liability and the statutory rule of implied
warranty.
Reversed and remanded for further proceedings.
____________
87 Nev. 209, 209 (1971) El Cortez Hotel, Inc. v. Coburn
EL CORTEZ HOTEL, INC., a Nevada Corporation, Appellant, v. SALLYE COBURN,
Respondent.
No. 6234
May 13, 1971 484 P.2d 1089
Appeal from a judgment. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Business invitee who had entered hotel to participate in social security number contest
brought suit against hotel seeking damages for injuries which she allegedly suffered as result
of being struck by sign. The district court entered judgment for plaintiff, and defendant hotel
appealed. The Supreme Court, Batjer, J., held that where defendant's counsel because of
nature of his closing argument invited admonition by trial court telling jury that theirs was a
factual determination as to whether defendant was negligent and trial court had previously
instructed on proximate cause and instructed jury that they were to consider all of the
instructions together, court's statement was not incomplete on claim that it prejudicially
reflected upon counsel's entire closing argument and was an incomplete statement of law
because it did not refer to proximate cause.
Affirmed.
Cromer and Barker, of Las Vegas, for Appellant.
Michael L. Hines and Henry R. Gordon, of Las Vegas, for Respondent.
1. Appeal and Error; Evidence.
In suit arising out of accident in which business invitee was struck by sign on head directly behind the
ear, accident report made and signed by business invitee was admissible, but where report merely was that
she was banged on the head and back of the ear" and information was before the jury
anyway, error in refusing to admit the report into evidence was harmless.
the ear and information was before the jury anyway, error in refusing to admit the report into evidence was
harmless.
Where defendant hotel's argument that accident report was receivable in evidence as an admission against
interest was not raised in court below, argument though briefed and argued before Supreme Court was not
properly before the Supreme Court.
3. Trial.
Where defendant's counsel because of nature of his closing argument invited admonition by trial court
telling jury that theirs was a factual determination as to whether defendant was negligent and trial court had
previously instructed on proximate cause and instructed jury that they were to consider all of the
instructions together, court's statement was not incomplete on claim that it prejudicially reflected upon
counsel's entire closing argument and was an incomplete statement of law because it did not refer to
proximate cause.
In suit arising out of accident in which business invitee was struck by sign on head directly behind ear,
where defendant hotel did not reveal any particular prejudice from alleged errors other than an adverse
verdict and failed to show that errors complained of would have so substantially affected its rights that it
could be reasonably assumed that if it were not for the alleged errors a different result might reasonably
have been expected, judgment in favor of business invitee would not be reversed. NRCP 61.
5. Negligence.
Evidence created question for jury as to whether defendant hotel was liable to plaintiff business invitee
who had entered hotel to participate in a social security number contest and was struck by sign on head
directly behind ear, allegedly sustaining injuries. NRCP 41(b).
OPINION
The respondent entered the appellant hotel on June 10, 1966, to participate in a social
security number contest. The desk where the contest was being conducted was located near
the entrance of the hotel next to the door to the Cortez room where a fashion show was being
held. A sign stood between the contest desk and the Cortez room entrance publicizing the
fashion show. The respondent entered the participant's line in front of the contest desk and
when she reached the front of the line she stooped over to present her social security card to
the employee conducting the contest. At that moment, the sign advertising the fashion show
fell over and struck her on the head directly behind the ear. Both parties stipulated that at the
time of the incident, the respondent was a business invitee of the appellant hotel.
time of the incident, the respondent was a business invitee of the appellant hotel.
The respondent testified that the same sign had been used on prior occasions to publicize
the fashion show and that she had observed it placed in the same location. There is conflicting
testimony as to the exact construction of the sign. L. R. Coburn, husband of the respondent,
testified that the sign leaned against the wall upon a two-legged stand; while John D. Gaughn,
treasurer of the appellant hotel, testified that the sign stood upon a tripod. The exact reason
for the fall of the sign is also in dispute. There is some testimony that two small boys leaving
the fashion show pushed against the accordion door entrance of the Cortez room and caused
the fall.
The respondent was apparently dazed by the blow from the sign and sat down upon some
nearby steps. She refused to be taken to a hospital or otherwise assisted, and approximately an
hour later her husband arrived and took her to the office of Dr. Tom Wortham, a chiropractor.
She later visited another chiropractor and an osteopath.
On May 16, 1968, she filed suit against the appellant, seeking damages for the injuries
which she allegedly suffered as a result of being struck by the sign. The case was tried before
a jury, which arrived at a verdict for the respondent.
[Headnotes 1, 2]
During the course of the trial, the appellant sought to have admitted into evidence an
accident report made and signed by the respondent. The trial court sustained the respondent's
objection to its admissibility. The report, although admissible, was innocuous. The
respondent merely reported that she was banged on the head and back of the ear. This
information was before the jury anyway. The error committed by the trial court in refusing to
admit the report into evidence was harmless. Now, for the first time on this appeal, the
appellant contends that the report should have been received as an admission against interest.
The appellant's argument that the report was receivable in evidence as an admission against
interest was not raised below. Although the question is briefed and argued here, it is not
properly before this court. A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Lindauer v.
Allen, 85 Nev. 430, 456 P.2d 851 (1969), and cases cited therein.
[Headnote 3]
During closing argument, counsel for the appellant stated: [I]t is our feeling from the
instructions of the law as applied to the facts in this case that you can reach no other
decision but that the hotel was not liable as a matter of law under the facts of this case."
to the facts in this case that you can reach no other decision but that the hotel was not liable as
a matter of law under the facts of this case.
After the close of counsel's argument, the court made the following retort to this portion of
the closing argument: Ladies and gentlemen of the jury, ordinarily, the court does not
comment upon arguments of counsel. However, Mr. Barker, inadvertently, stated something
that I feel incumbent upon me to mention, that he stated in his argument that, as a matter of
law, you must find for the defendant. This is not so. Yours is a factual determination as to
whether or not the defendant hotel was negligent in the way, manner and place in which it
maintained the sign in question.
Out of the presence of the jury, appellant's counsel objected to the statement of the court
contending that it prejudicially reflected upon his entire closing argument and that it was an
incomplete statement of the law because it did not refer to proximate cause. There is no
contention that the statement was incorrect, only that it was incomplete. Appellant's counsel,
because of the nature of his argument, invited the admonition by the trial court.
NRCP 51
1
recognizes that the closing argument of counsel may require the giving of
further instructions. In Johnson v. Brown, 75 Nev. 437, 345 P.2d 754 (1959), this court said:
It [the court] 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 . . . are being invaded, or to give
such further admonition as it deems necessary.
The appellant's contention that the trial court's statement was incomplete is not persuasive.
The trial court had previously instructed on proximate cause, and the jury had also been
instructed that they were to consider all of the instructions together. Southern Pacific Co. v.
Watkins, 83 Nev. 471, 435 P.2d 498 (1967), and cases cited therein; Eikelberger v. State ex
rel. Dep't Hwys., 83 Nev. 306, 429 P.2d 555 (1967).
The appellant further contends that the trial court erred when it {1) admitted into
evidence the statement for professional services submitted by Dr.
____________________

1
NRCP 51 provides in part: At the close of the evidence or at such earlier time as the court reasonably
directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.
The court shall inform counsel of its proposed action upon the requests prior to their argument to the jury, but
the court shall instruct the jury after the arguments are completed; provided, if either party demands it the court
must settle and give the instructions to the jury before the argument begins, but this shall not prevent the giving
of further instructions which may become necessary by reason of the argument.
when it (1) admitted into evidence the statement for professional services submitted by Dr.
Ralph J. Litten and Dr. Tom Wortham without testimony from the doctors to show causal
relationship between the injuries treated and the accident complained of; (2) called a lay
witness to testify as to her observations of the physical condition of the respondent; (3)
refused to allow appellant's counsel to propound a leading question to an expert witness; (4)
refused to give an instruction on assumption of the risk; and (5) refused to grant the
appellant's motion for a directed verdict pursuant to NRCP 41(b).
[Headnote 4]
We have examined the record, and find no error relative to those contentions. Even if error
had been present, the appellant has not revealed any particular prejudice other than an adverse
verdict. It has failed to show that the errors complained of would have so substantially
affected its rights that it could be reasonably assumed that if it were not for the alleged errors,
a different result might reasonably have been expected. Peterson v. Silver Peak, 37 Nev. 117,
140 Pac. 519 (1914); Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968).
There is nothing in this record that would render the judgment inconsistent with substantial
justice. NRCP 61,
2
which forbids a reversal except for prejudicial error, requires affirmance.
Boyd v. Pernicano, 79 Nev. 356, 385 P.2d 342 (1963); Serpa v. Porter, 80 Nev. 60, 389 P.2d
241 (1964); Bowman v. Tisnado, 84 Nev. 420, 442 P.2d 899 (1968).
[Headnote 5]
We also affirm the trial court's denial of the appellant's motion to dismiss pursuant to
NRCP 41(b). In Corn v. French, 71 Nev. 280, 289 P.2d 173 (1955), this court said: [T]he
rule is clear on motion for involuntary dismissal that the motion admits the truth of plaintiff's
evidence and all inferences that reasonably can be drawn therefrom and that the evidence
must be interpreted in the light most favorable to plaintiff and most strongly against
defendant."
____________________

2
NRCP 61: No error in either the admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.
evidence must be interpreted in the light most favorable to plaintiff and most strongly against
defendant. Bates v. Cottonwood Cove Corp., 84 Nev. 388, 441 P.2d 622 (1968). The truth of
the respondent's evidence and all inferences that could have been drawn therefrom required
submission to the jury.
The judgment of the district court is affirmed.
Zenoff, C. J., Mowbray and Thompson, JJ., and Mann, D. J., concur.
____________
87 Nev. 214, 214 (1971) Corbin v. State
WILLIAM SYLVESTER CORBIN, Appellant, v. THE
No. 6292
May 13, 1971 484 P.2d 721
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of attempted robbery, and he appealed. The
Supreme Court held that where attempted robbery victim testified that her identification of
defendant was based solely upon her observation of him during attempted robbery in
well-lighted motel lobby at distances as close as three feet for period up to five minutes and
not upon what she saw in photographic display prior to trial, defendant's constitutional right
to counsel was not denied by virtue of photographic display in which victim identified
defendant's photograph and which was conducted without defense counsel's presence.
Affirmed.
[Rehearing denied June 15, 1971]
Robert G. Legakes, Public Defender, and David M. Schreiber and Thomas D. Beatty,
Deputy Public Defenders, Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Raymond
D. Jeffers, Chief Deputy District Attorney, and George D. Frame, Deputy District Attorney,
Clark County, for Respondent.
Criminal Law.
Where attempted robbery victim testified that her identification of defendant was based solely upon her
observation of him during attempted robbery in well-lighted motel lobby at distances as
close as three feet for period up to five minutes and not upon what she saw in
photographic display prior to trial, defendant's constitutional right to counsel was not
denied by virtue of photographic display in which victim identified defendant's
photograph and which was conducted without defense counsel's presence.
during attempted robbery in well-lighted motel lobby at distances as close as three feet for period up to five
minutes and not upon what she saw in photographic display prior to trial, defendant's constitutional right to
counsel was not denied by virtue of photographic display in which victim identified defendant's photograph
and which was conducted without defense counsel's presence.
OPINION
Per Curiam:
The appellant was convicted by a jury of the crime of attempted robbery. On appeal he
contends that his constitutional right to counsel was denied when the victim of the attempted
robbery was permitted to view the appellant from a photographic display prior to the trial
without the presence of counsel for the appellant. From that photographic display, the victim
identified the appellant, who was at that time in the custody of the Las Vegas police
department.
At the trial, the victim's testimony was that she was in the presence of the appellant for a
period up to 5 minutes, while it was daylight, at distances as close as 3 feet, in the
well-lighted lobby of a motel; and she was able to describe accurately the type of clothing
worn by her attempted assailant, as well as the color of that clothing.
The court conducted a hearing out of the presence of the jury, for the purpose of
ascertaining whether or not the identification testimony had been tainted by the pretrial
photographic display. At that hearing, the State produced the only photograph from which the
witness was able to pick out the appellant. She had been shown some 10 or 12 others, but she
could identify the appellant in that one only. She testified that her identification of the
appellant was based solely upon her observation of him during the attempted robbery, and not
upon what she saw in the photograph. After that evidentiary hearing, the court ruled that the
witness's identification was independent from the photographic display, and thus not tainted.
The evidentiary hearing conducted by the court was in compliance with our suggested
procedure as set forth in Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), and there is
no evidence of improper suggestion or irreparable misidentification from the pretrial
photographic display. The testimony of the witness was clear and convincing proof that her
in-court identification of the appellant was independent of the pretrial photographic display,
and thus the former was not tainted by the latter. Consequently, there was no error.
The appellant also contends that there was not sufficient evidence to support the verdict of
guilty. We have examined the testimony and find that this contention is without merit. The
appellant sought to establish an alibi to show that the crime was not committed by him. By its
verdict, however, the jury found the alibi evidence to be unpersuasive, and there was
substantial competent evidence to support the verdict rendered. State v. Oschoa, 49 Nev. 194,
242 P. 582 (1926).
Affirmed.
____________
87 Nev. 216, 216 (1971) Trent v. District Court
WILLIAM LLOYD TRENT, Appellant, v. EIGHTH JUDICIAL
DISTRICT COURT JUVENILE DEPARTMENT, Respondent.
No. 6326
May 13, 1971 484 P.2d 1097
Appeal from order of the Eighth Judicial District Court, Clark County, approving juvenile
court referee's finding and recommendations; John F. Mendoza, Judge.
Appeal from an order of the district court approving juvenile court referee's finding and
recommendations. The Supreme Court held that where referee found juvenile guilty of
involuntary manslaughter and recommended that he be adjudged a delinquent child and that a
dispositional hearing be held, order entered by district court one day later approving finding
and recommendations of referee violated rule granting minor five days within which to apply
for a rehearing before juvenile court and providing that rehearing, if allowed, is de novo;
hence, approving order was premature and case would be remanded with instructions to set
aside order and to allow juvenile time provided by rule within which to apply for a rehearing.
Remanded with instructions to set aside the approving order and thereafter to allow
Trent the time provided by Rule XXVII(4)(5) of the Eighth Judicial District Court
within which to apply for a rehearing.
Robert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender,
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Heber P. Hardy and
Charles L. Garner, Deputy District Attorneys, Clark County, for Respondent.
87 Nev. 216, 217 (1971) Trent v. District Court
Infants.
Where referee found juvenile guilty of involuntary manslaughter and recommended that he be adjudged a
delinquent child and that a dispositional hearing be held, order entered by district court one day later
approving finding and recommendations of referee violated rule granting minor five days within which to
apply for a rehearing before juvenile court and providing that rehearing, if allowed, is de novo; hence,
approving order was premature and case would be remanded with instructions to set aside order and to
allow juvenile time provided by rule within which to apply for a rehearing. NRS 201.090, subd. 14.
OPINION
Per Curiam:
This appeal is not ripe for our consideration. A juvenile court referee found the appellant
guilty of involuntary manslaughter and recommended that he be adjudged a delinquent child
[NRS 201.090(14)] and that a dispositional hearing be held. His finding and
recommendations were prematurely approved one day later by a district judge and made an
order of the court. Rule XXVII(4)(5) of the Eighth Judicial District Court grants the minor
five days after service of findings and recommendations of the referee within which to apply
for a rehearing before the juvenile court, and the rehearing, if allowed, is de novo. The errors
of law assigned on this appeal concern the referee's handling of the trial, and an opportunity
to first consider them should be addressed to the district court as the noted Rule contemplates.
Unfortunately, the hasty action of the court in approving the referee's recommendations
precluded that avenue of relief.
We, therefore, remand this matter to the district court with instructions to set aside the
approving order and thereafter to allow Trent the time provided by the Rule within which to
apply for a rehearing.
____________
87 Nev. 217, 217 (1971) Graftenreed v. State
CLAYTON MATT GRAFTENREED, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 6472
May 13, 1971 484 P.2d 720
Appeal from a conviction by a jury of robbery by the Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court held that conviction would not be reversed on theory that because defendant was
wearing stocking mask his identity was so concealed that it was impossible to identify him
where victims identified him by his clothing, mustache, hair color, imperfect teeth, and gun,
employee of neighboring establishment identified defendant as person he had seen near place
of robbery shortly before it occurred, and there was other evidence tending to connect
defendant with the robbery.
Affirmed.
Robert G. Legakes, Public Defender, Clark County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, Charles L. Garner,
Robbery.
Robbery conviction would not be reversed on theory that because defendant was wearing stocking mask
his identity was so concealed that it was impossible to identify him where victims identified him by his
clothing, mustache, hair color, imperfect teeth, and gun, employee of neighboring establishment identified
defendant as person he had seen near place of robbery shortly before it occurred, and there was other
evidence tending to connect defendant with the robbery.
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to support the verdict of guilty of
robbery returned by a jury against the appellant. We have reviewed the evidence contained in
the record and find that it supports the verdict.
Here the appellant contends that because he was wearing a stocking mask that his identity
was so concealed that it was impossible for any witness to have accurately identified him.
However, one of the victims testified that he had seen the appellant in a nearby establishment
earlier in the day and recognized him as the same person who committed the robbery by the
clothing that he was wearing as well as by his moustache and the color of his hair. The other
victim positively identified him by his moustache, imperfect teeth and the color of his hair;
while more than one witness recognized the gun found with him, at the time of his arrest, as
the weapon used by him during the holdup.
found with him, at the time of his arrest, as the weapon used by him during the holdup. An
employee of a neighboring car rental establishment positively identified the appellant as the
person he had seen near the entrance of the place of the robbery shortly before it occurred and
he also testified to the presence in the vicinity of the Buick automobile in which the appellant
was later arrested. There was also other evidence presented to the jury that tended to connect
the appellant with the robbery. See Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969), where
the witness had an opportunity prior to the out of court confrontation to thoroughly observe
the defendant, and we held that identification to be sufficient.
Assuming the existence of every fact which the jury could have reasonably deduced from
the evidence to reach the verdict, there is every hypothesis to support the finding of sufficient
substantial evidence to support the verdict reached in the trial court. State v. Bourdlais, 70
Nev. 233, 255, 265 P.2d 761, 771 (1954); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960);
Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955); Henry v. State, 83 Nev. 194, 426 P.2d 791
(1967); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968); Cross v. State, 85 Nev. 580, 460
P.2d 151 (1969); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970).
The judgment appealed from is affirmed.
____________
87 Nev. 219, 219 (1971) Broadhead v. Sheriff
GARELD B. BROADHEAD, Jr., Appellant, v. SHERIFF,
No. 6473
May 13, 1971 484 P.2d 1092
Appeal from an Order of the Eighth Judicial District Court, Clark County, denying writ of
habeas corpus; Thomas J. O'Donnell, Judge.
The Supreme Court, Gunderson, J., held that where accused was arrested and posted bail
on complaint charging sale of marijuana to person over age of 21, prosecution could not
avoid its obligation, either to proceed with a preliminary hearing at appointed time or to show
good cause for continuance, by causing accused's arrest in connection with second proceeding
for same offense.
James D. Santini, of Las Vegas, for Appellant.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney; Charles
L. Garner, Chief Deputy District Attorney for Appeals, Clark County, for Respondent.
1. Criminal Law.
Prosecutors must either proceed with the preliminary hearing at appointed time or show good cause for
continuance by affidavit. DCR 21.
2. Criminal Law.
Where accused was arrested and posted bail on complaint charging sale of marijuana to person over age
of 21, prosecution could not avoid its obligation, either to proceed with a preliminary hearing at appointed
time or to show good cause for continuance, by causing accused's arrest in connection with second
proceeding for same offense. NRS 178.556, 453.030; DCR 21.
3. Criminal Law.
In light of statute giving court power to dismiss an indictment if defendant is not brought to trial within
60 days after indictment is found, where accused was present 4 days after indictment was found, his
subsequent whereabouts were known to prosecution and he was on bail and might have been brought back
at any time but prosecution delayed some 112 days before causing his arrest under the indictment, no
reasonable effort was made to afford accused a speedy trial and prosecution of accused was barred. NRS
178.556.
4. Criminal Law.
Right to speedy trial, whether within statutory 60 days or within a reasonable time, is not jurisdictional
and may be waived and waiver may be implied as well as express, and if defendant is responsible for
delaying trial beyond 60-day limit he may not complain. NRS 178.556.
5. Criminal Law.
Where accused was in no way responsible for delaying trial beyond 60-day statutory limit after
indictment was found and because of prosecution's failure to bring him before court to answer indictment
he had no opportunity to object until some 120 days had elapsed, no waiver of right to speedy trial could be
implied from counsel's request for opportunity to examine into procedures employed by prosecution. NRS
178.556.
OPINION
Appellant originally was arrested and posted bail on a complaint filed in the Justice Court
of Las Vegas Township, charging sale of marijuana to a person over the age of 21, a violation
of NRS 453.030. Awaiting a preliminary hearing, which he demanded, appellant returned
home to Colorado, where he was employed by a tree service company.
demanded, appellant returned home to Colorado, where he was employed by a tree service
company. The prosecution sought several continuances of the preliminary hearing, which
appellant's counsel did not oppose, and appellant's counsel requested at least one continuance
on their own account; then, on March 16, 1970, the prosecution again orally moved to
continue the preliminary hearing because it was unable to produce its expert witness.
Although appellant might have opposed this motion for failure to show good cause as
required by DCR 21,
1
and although appellant had honored his bail commitment by traveling
from Colorado to be present, appellant's counsel agreed, conditioning acquiescence with the
request that the court fix a firm date for the preliminary hearing. The court fixed June 24,
1970, as a firm date; thereafter, appellant's counsel apparently stipulated with the prosecutor
that this date should be changed to July 8, 1970.
When seeking this continuance, the District Attorney's deputy did not reveal to the
magistrate or to appellant's counsel that four days earlier, on March 12, 1970, the prosecution
had obtained a Grand Jury indictment against appellant with regard to the same alleged
offense; nor did the deputy reveal any intent to subvert or avoid a hearing on the firm date
to which he agreed. Yet, without reason, without warning, and at totally unnecessary expense
to the State, on July 2, 1970, the prosecution caused appellant to be arrested under the
indictment in Golden, Colorado, where he was kept for eight days, until transported back to
Las Vegas for arraignment on the indictment on July 10, 1970, two days after his preliminary
hearing should have been conducted in justice court. According to the petition before us,
these untoward procedures resulted in appellant being subjected to adverse newspaper
publicity not only in Las Vegas but also in his home town, resulting in loss of his
employment.
When appellant was brought before the District Court to answer the indictment on July 10,
1970, his counsel appeared with him, declined to plead, declined to waive his right to a
speedy trial as secured by NRS 178.556, advised the court that he had requested copies of the
Grand Jury proceedings but that the prosecution had not provided them, told the court that he
had only just learned when the indictment had been returned, and requested time to study the
proceedings before taking action.
____________________

1
Oberle v. Fogliani, 32 Nev. 428, 420 P.2d 251 (1966); Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969);
Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970); State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971).
action. For this purpose, the matter was continued until July 20, 1970; however, the appellant
having become unemployed, the Public Defender's Office was obliged to enter the case, by
reason of which two further continuances allowing time to prepare an attack on the
indictment were sought by appellant and allowed by the District Court. In the absence of
appellant and his counsel, on July 16, 1970, the prosecution caused the justice court
magistrate to dismiss the earlier proceedings against him.
Appellant brought habeas corpus to challenge his confinement, and, relief being denied to
him by the lower court, brings this appeal.
[Headnote 1]
1. In Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), this court recognized that the
reasons underlying DCR 21 are equally appropriate to the continuance of a criminal
proceeding in the justice's court; thus, although we withheld application of the rule in that
case, we gave prosecutors clear notice that, in the future, they must either proceed with a
preliminary hearing at the appointed time, or show good cause for a continuance by affidavit,
as under DCR 21. Continuing disregard of this simple obligation gave rise to our holding in
Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970), in which we said: Although NRS
178.562(2) may not have been intended to bar a second criminal complaint in the
circumstances before us, basic fairness does bar such a procedure. A new proceeding for the
same offense (whether by complaint, indictment or information) is not allowable when the
original proceeding has been dismissed due to the willful failure of the prosecutor to comply
with important procedural rules. In this context, willful refers not only to intentional
derelictions on the part of the prosecution, but equally to situations where there has been
conscious indifference to rules of procedure affecting a defendant's rights. State v. Austin,
87 Nev. 81, 482 P.2d 284 (1971).
[Headnote 2]
May the prosecution avoid its obligation either to proceed with a preliminary hearing at the
appointed time, or to show good cause for a continuance as under DCR 21, by causing a
defendant's arrest in connection with a second proceeding for the same offense, in conscious
indifference to his rights? We hold it may not; for, to hold otherwise, would not only
encourage callous disregard of the rights of those accused of crime, with wanton unconcern
for unnecessary expense to the State, but would destroy the orderly procedures that our
previous holdings, cited above, are intended to require.
but would destroy the orderly procedures that our previous holdings, cited above, are intended
to require.
[Headnote 3]
2. Even if this were not so, the second prosecution of appellant would be barred for a
further reason. NRS 178.556 gives the court power to dismiss an indictment, if the defendant
is not brought to trial within 60 days after the indictment is found; and dismissal of the
indictment is required, upon the facts of this case. Although appellant was present in Las
Vegas four days after the indictment was found, although his subsequent whereabouts were
known to the prosecution, and although he was on bail and might have been brought back to
Las Vegas at any time, the prosecution delayed some 112 days before causing his arrest under
the indictment. These facts destroy any contention that a reasonable effort was made to afford
appellant a speedy trial. Cf. State v. Craig, 87 Nev. 199, 484 P.2d 719 (1971).
[Headnotes 4, 5]
3. The right to a speedy trial, whether within the statutory 60 days or within a reasonable
time, is not jurisdictional and may be waived. Bates v. State, 84 Nev. 43, 436 P.2d 27 (1968).
Waiver may be implied, as well as express; thus, if the defendant is responsible for delaying
the trial beyond the 60-day limit, he may not complain. Oberle v. Fogliani, 82 Nev. 428, 420
P.2d 251 (1966). However, in the instant case, the appellant was in no way responsible for
delaying the trial beyond the 60-day limit; indeed, because of the prosecution's failure to
bring him before the court to answer the indictment, he had no opportunity to object until
some 120 days had elapsed. In the factual context of this case, no waiver can be implied from
his counsel's request, at that time, for an opportunity to examine into the anomalous
procedures employed by the prosecution; nor do we believe that the time utilized for this
purpose was at all unreasonable, in view of the confusion necessarily resulting from the
procedures employed by the prosecution.
This matter is reversed and remanded, with instructions to grant appellant's petition for
writ of habeas corpus, and to discharge him from custody.
2

____________________

2
The present incumbent District Attorney did not occupy that office at the time the procedures mentioned in
this opinion were employed.
____________
87 Nev. 224, 224 (1971) Cardinal v. C. H. Masland & Sons
CHARLES W. CARDINAL (and by Substitution, THERESA CARDINAL, Executrix of the
Estate of CHARLES W. CARDINAL, Deceased) and THERESA CARDINAL, as
Individuals and as General Partners of JOE CARDINAL COMPANY, a Partnership,
Appellants, v. C. H. MASLAND AND SONS, a Pennsylvania Corporation, Respondent.
No. 6308
May 14, 1971 484 P.2d 1075
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Action by partners, individually and as members of partnership, to set aside forged deed of
trust covering partnership property. The district court granted summary judgment for
defendant and plaintiffs appealed. The Supreme Court, Mowbray, J., held that evidence
generated genuine issue of material fact whether 21-month delay in bringing action to set
aside forged deed of partnership property was reasonable, in view of fact that partner who
forged other partners' signatures controlled affairs of company and that partners seeking to set
aside deed had very little to do with its operations, precluding summary judgment.
Reversed.
Thompson and Batjer, JJ., dissented.
[Rehearing granted July 15, 1971]
Lionel Sawyer Collins & Wartman and Jeffrey N. Sheehan, of Las Vegas, for Appellants.
Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.
1. Judgment.
Testimony of partnership accountant, to effect that one general partner knew of managing partner's
forgery of signatures to trust deed covering partnership property approximately 21 months prior to action to
set aside deed, could be disregarded on motion for summary judgment in determining whether partnership
had ratified forgery by its delay, since accountant was not a member of partnership.
2. Judgment.
Evidence generated genuine issue of material fact whether 21- month delay in bringing action to set aside
forged deed of partnership property was reasonable, in view of fact that partner who forged other partners'
signatures controlled affairs of company and that partners seeking to set aside deed had very
little to do with its operations, precluding summary judgment.
and that partners seeking to set aside deed had very little to do with its operations, precluding summary
judgment.
OPINION
Charles W. Cardinal and Theresa Cardinal, as individuals and as general partners of Joe
Cardinal Company, a partnership, commenced this action in the lower court against the
defendant-respondent to set aside a forged deed of trust covering property of Joe Cardinal
Company. The defendant-respondent answered the complaint and later moved for summary
judgment on the ground that the company had ratified the forgery and was thereby precluded
from recovery. The district judge agreed, and he granted summary judgment in favor of the
defendant-respondent. Hence, this appeal.
1. The Facts.
In February 1965, Robert J. Cardinal signed a promissory note for $167,000 in favor of
respondent C. H. Masland and Sons, which note was secured by a deed of trust covering
property owned by Joe Cardinal Company.
1
Robert personally signed the deed of trust, and it
is agreed that he forged thereto the signatures of Charles and Theresa. The note was not paid,
and Masland foreclosed on the deed of trust. This present action, to cancel the deed of trust
and recover the partnership property sold to Masland under the foreclosure sale, was
commenced in November 1966, approximately 21 months after Robert had committed the
forgery. It is Masland's contention that Charles had knowledge of Robert's forgery in early
1965, but that he did nothing about it until the commencement of this action, and that the
failure promptly to repudiate the forgery constituted ratification of it by the company.
2
It was
upon this reasoning that the district judge granted Masland's motion for summary judgment.
____________________

1
The Joe Cardinal Company consisted of three general partners: Robert J. Cardinal; his brother, Charles W.
Cardinal; and their mother, Theresa Cardinal. Since the filing of the complaint, both Robert and Charles have
died. Theresa, who is the executrix of their estates, has been substituted for them in this case.

2
The district judge held:
Charles Cardinal admitted in his deposition that he had actual knowledge of the Masland encumbrance early in
1965 when he desired to sell certain property described in the deed of trust but discovered he could not because
of the encumbrance. Since he took no action to repudiate the Masland transaction within a reasonable time, he
and the partnership must be deemed to have ratified it.
2. Summary Judgment.
Summary judgment may be granted only where no genuine issue of fact remains for trial.
Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970); Old W.
Enterprises, Inc. v. Reno Escrow Co., 86 Nev. 727, 476 P.2d 1 (1970). The reason for the rule
has been set forth in Parman v. Petricciani, 70 Nev. 427, 436, 272 P.2d 492, 496 (1954),
where this court said:
In Doehler Metal Furniture Co. v. [United States], . . . 149 F.2d 130, 135 [2d Cir. 1945],
it is stated, We take this occasion to suggest that trial judges should exercise great care in
granting motions for summary judgment. A litigant has a right to a trial where there is the
slightest doubt as to the facts * * *. Such a judgment, wisely used, is a praiseworthy
time-saving device. But, although prompt dispatch of judicial business is a virtue, it is neither
the sole nor the primary purpose for which courts have been established. Denial of a trial on
disputed facts is worse than delay.'
In Griffith v. William Penn Broadcasting Co., . . ., 4 F.R.D. 475, 477 [E.D.Pa. 1945], it is
stated, [T]he presence of a real and material issue of fact precludes further consideration of
the matter under this [R]ule [56]. * * * It is not sufficient that the court may not credit the
evidence to be offered or that the weight of the evidence is clearly in favor of one party.
Under such circumstances the parties are entitled to a trial by jury to determine the facts.'
There can be no question as to these well-established principles. Summary judgment may
not be used as a short cut to the resolving of disputes upon facts material to the determination
of the legal rights of the parties. . . . (Emphasis added.) We turn to consider the issues
presented to the court below.
3. The Company's Knowledge of the Forgery.
[Headnote 1]
Respondent's motion for summary judgment was filed October 9, 1969, after the taking of
Charles's deposition, which was offered at the hearing on the motion. Masland argued that
there was no remaining issue of fact to be determined by the court regarding when the
partnership first had knowledge of the forgery, because Charles, a general partner, admitted
he had knowledge of the forgery in early 1965.
3
We agree. Appellants contend that the
testimony of Edward T. Groves, the company's accountant, varies from that of Charles and
thereby creates a fact issue to be determined at time of trial.
____________________

3
Deposition of Charles W. Cardinal, in relevant part:
Q [by Grant Sawyer, an attorney for Cardinal]. In 1965 you say that you decidedor, that you would like to
sell an acre and a quarter which was located back of the Frontier?
company's accountant, varies from that of Charles and thereby creates a fact issue to be
determined at time of trial. We do not agree.
4
Even if it did, the court was at liberty to
disregard the testimony, for Groves was not a member of the partnership. Cf. Aldabe v.
Adams, 81 Nev. 280, 402 P.2d 34 (1965).
____________________
A. The first part of '65, yes.
Q. Why didn't you sell that property at the time?
A. On account of it was encumbered.
Q. Had you known prior to that time it was encumbered? Did you know there was anything against the
property?
A. No, no, I did not.
Q. Did you know how that encumbrance was created against the property after you found you couldn't sell
it?
A. Through the, I believe it was, Masland and Sons.
Q. But do you have any idea of it?
A. No.
. . .
Q. When Mr. Groves told you that the acre and a quarter behind the Frontier couldn't be sold, what did you
say to him, if you remember?
A. I just told him if it can't be sold it can't be sold.
Q. Were you angry? What was your reaction? Can you recall?
A. I was disturbed about it, yes.
Q. Did you understand the situation at all?
A. Yes.
Q. Did you understand how it had happened or why couldn't it be sold?
A. Yes.
Q. Well, had you seen any documents or anything?
A. No, I hadn't.
Q. Then, did you understand why it couldn't be sold?
A. Yes, it was encumbered to Masland and Sons.
Q. [by W. Bruce Beckley, attorney for Masland]. Now, when you discussed this one and a quarter acres,
which was mortgaged to Masland, with Mr. Groves in 1965, what did you do after you found out there was a
trust deed on it in favor of Masland?
A. There was nothing I could do.
Q. You did nothing?
A. No, I couldn't.
Q. But the fact is you did nothing, isn't that right?
A. That is right.
Q. And when did this conversation with Mr. Groves take place?
A. The first part of '65. I can't recall the time. (Emphasis added.)

4
Deposition of Edward T. Groves, in relevant part:
Q [by Mr. Beckley]. I will show you, Mr. Groves, what appears to be escrow instructions, Pioneer Title
Insurance Company of Nevada, dated August 18, 1964, and ask you if that in any way refreshes your
recollection?
A. Yes, it does. I thought it was '66.
Q. What do those escrow instructions cover?
4. Ratification.
[Headnote 2]
Since Charles, a general partner, had knowledge of the forgery in early 1965 and did
nothing about it until the commencement of this action on November 25, 1966, the district
judge ruled as a matter of law: [T]he partnership must be deemed to have ratified it.
Appellants argue that this ruling was erroneous because the question of what is a reasonable
time within which to repudiate after notice of the forgery is a fact question and that this
question was not appropriately explored in the depositions taken. Respondent, on the other
hand, contends that when the time period between knowledge of the forgery and repudiation
is undisputed, the determination of reasonableness is purely a question of law. We believe,
however, that the question is one that turns on the facts and circumstances of each particular
case; that the time period between when the forgery becomes known and when repudiation
occurs, standing alone, may not always be controlling. Inquiry was not directed to the
reasons, if any exist, for the delay in repudiation and filing suit. Circumstances may or may
not exist to excuse such delay.
____________________
A. It covers the sale of this particular acre and a quarter in the amount of $15,000 with $500 down to Edward
T. Groves.
Q. That is you?
A. That is me.
Q. And who is named as the seller in those instructions?
A. Charles W. Cardinal.
Q. So an attempt was made by Mr. Charles Cardinal to sell to you as an individual the 1 1/4 acre parcel
behind the Frontier Hotel in 1964?
A. That is correct.
Q. Now, was that transaction consummated?
A. No, it was not.
Q. Why not?
A. Because the title was clouded. It was not clouded, but it was underup for collateral.
Q. It was what?
A. Put up as collateral for a loan.
Q. To Masland?
A. I believe so.
Q. Was that escrow cancelled?
A. Yes, it was.
Q. I show you a document dated January 19, 1965, and ask you if you can identify that?
A. That is correct.
Q. What is that?
A. It is a cancellation of Escrow No. LV91855 covering the escrow of the 1 1/4 acres of land from Charles
W. Cardinal to Edward T. Groves. (Emphasis added.)
not exist to excuse such delay. Absent this information, it was inappropriate for the district
court to rule that the passage of time alone established ratification and precludes this action.
For this reason we conclude that a factual determination remains to be resolved by the trier of
the facts.
The court said, in Rayonier, Inc. v. Polson, 400 F.2d 909, 915 (9th Cir. 1968):
. . . Conduct which may be held to manifest an election to affirm an unauthorized contract
includes the failure to repudiate the contract. . .
Although Jackson [agent] and Rayonier executed the contract in January 1960, Polson
[principal] did not object to it until July, 1962, a period of over two years. However, the mere
passage of time does not necessarily operate to establish ratification. [Citation.] In order to
infer an election to ratify a contract it is, of course, necessary that the party to be charged have
full knowledge of all material facts [citations]; in the present case a considerable dispute
existed concerning when Polson first acquired such knowledge. (Emphasis added.)
Here, Robert controlled the affairs of the company. Charles and Theresa had very little to
do with its operation. Their inactivity could possibly justify a longer period in which to
repudiate the managing partner's forgery.
We rule that, under the facts presented, a material fact issue does remain to be determined.
Therefore, the order granting summary judgment is reversed, and the case is remanded for a
limited trial on the sole issue of ratification.
Zenoff, C. J., and Gunderson, J., concur.
Thompson, J., with whom Batjer, J., concurs, dissenting:
It is undisputed that Charles Cardinal, a general partner, acquired knowledge of his
brother's forgery in early 1965. Accordingly, the district court ruled, as a matter of law, that
21 months was an unreasonable time to wait before filing suit and that the plaintiffs must be
deemed to have ratified the forgery. We cannot fault his decision on this point. The
defendants acted in good faith throughout and are innocent of wrongdoing. The criminal act
was that of a partner of the plaintiffs who here seek relief. It seems to us that the burden was
on them to explain or excuse their delay in commencing suit [NRCP 56(e); Adamson v.
Bowker, 85 Nev. 115, 450 P.2d 796 (1969); Tobler and Oliver v. Bd. Trustees, 84 Nev. 438,
442 P.2d 904 (1968)] or suffer possible defeat when faced with a motion for summary
judgment. No explanation or excuse was offered to the court for its evaluation.
excuse was offered to the court for its evaluation. The plaintiffs alone possessed that
knowledge. We would affirm.
____________
87 Nev. 230, 230 (1971) Williams v. State
LORENE WILLIAMS, Appellant, v. THE
No. 6460
May 14, 1971 484 P.2d 1088
Appeal from a conviction of grand larceny in the Eighth Judicial District Court, Clark
County; William R. Morse, Judge.
Defendant was convicted in the district court of grand larceny, and appeal was taken. The
Supreme Court held that evidence was sufficient to sustain conviction.
Affirmed.
Robert G. Legakes, Public Defender, Steven L. Godwin, Deputy Public Defender, Clark
Robert List, Attorney General; Roy A. Woofter, District Attorney, Charles L. Garner,
Larceny.
Evidence was sufficient to sustain conviction for grand larceny.
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to support the verdict of guilty of
grand larceny returned by a jury against the appellant.
It appears that the appellant is really complaining about the weight of the evidence rather
than its sufficiency. She argues that there was a discrepancy between the testimony of one of
the state's witnesses at the trial and her written statement to the police following the criminal
act.
In McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970), we said: It is the function of the jury
and not the reviewing court to weigh the evidence. See State v. Bourdlais, 70 Nev. 233,
87 Nev. 230, 231 (1971) Williams v. State
255, 265 P.2d 761 (1954). Where there is substantial evidence in the record to support the
verdict of the jury, it will not be overturned by an appellate court. Tellis v. State, 85 Nev.
679, 462 P.2d 526 (1969); Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969); Criswell v.
State, 84 Nev. 459, 443 P.2d 552 (1968); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968);
Henry v. State, 83 Nev. 194, 426 P.2d 791 (1967); Graftenreed v. State, 87 Nev. 217, 484
P.2d 720 (1971).
To restate the evidence contained in this record would serve no purpose. We have
considered it and find sufficient facts from which reasonable inferences could be drawn to
prove each and every material element of the offense charged.
The judgment of the district court is affirmed. See Pinana v. State, 76 Nev. 274, 352 P.2d
824 (1960).
____________
87 Nev. 231, 231 (1971) Pacheco v. Warden
HECTOR PACHECO, Appellant, v. WARDEN,
No. 6471
May 14, 1971 484 P.2d 1082
Appeal from order of Eighth Judicial District Court, Clark County, denying petition for
post-conviction relief; William R. Morse, Judge.
Proceeding upon petition for post-conviction relief, by prisoner convicted of kidnaping in
the first degree and sentenced to life imprisonment. The district court denied the petition, and
petitioner appealed. The Supreme Court held that where defendant chose to proceed with jury
trial and received the penalty of life imprisonment, he was not prejudiced by operation of the
allegedly unconstitutional statute providing punishment for kidnaping in the first degree as
fixed by the jury convicting, and accordingly was not entitled to relief.
Affirmed.
Robert G. Legakes, Public Defender, and Michael A. Cherry, Deputy Public Defender,
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles E.
Thompson, Deputy District Attorney, Clark County, for Respondent.
87 Nev. 231, 232 (1971) Pacheco v. Warden
Constitutional Law.
Where defendant charged with kidnaping in first degree chose to proceed with jury trial and received
penalty of life imprisonment, he was not prejudiced by operation of allegedly unconstitutional statute
providing punishment for kidnaping in first degree as fixed by jury convicting, and accordingly, was not
entitled to relief from penalty of life imprisonment. NRS 200.310, 200.320, subd. 1.
OPINION
Per Curiam:
Appellant was convicted of kidnaping in the first degree (NRS 200.310) and sentenced to
life imprisonment under NRS 200.320(1).
1
He now attacks the constitutionality of NRS
200.320(1) on the basis that this sentencing statute produces guilty pleas, waivers of trial by
jury and deals obtained under pressure and coercion of fear of the death penalty. He relies on
Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968), and United States v. Jackson, 390 U.S. 570
(1968), in which statutes that are assertedly similar were held unconstitutional.
Even assuming the relevant statute here to be similar to that in Spillersthough we do not
so holdwe are unable to see how Pacheco was prejudiced by its operation and for that
reason must deny relief. He chose to proceed with a jury trial and received a penalty of life
imprisonment. Cf. Howard v. State, 84 Nev. 599, 446 P.2d 163 (1968); and Bumper v. State
of North Carolina, 391 U.S. 543 (1968).
Affirmed.
____________________

1
NRS 200.320. Kidnaping in first degree; Punishment. Every person convicted of kidnaping in the first
degree shall be punished:
1. Where the kidnaped person shall suffer substantial bodily harm during the act of kidnaping or the
subsequent detention and confinement or in attempted escape or escape therefrom with death or by
imprisonment in the state prison for life without possibility of parole, or by life imprisonment in the state prison
with the possibility of parole, eligibility for which begins when a minimum of 10 years has been served, such
sentence to be determined by the jury convicting the person so found guilty.
____________
87 Nev. 233, 233 (1971) Watkins v. Sheriff
MELVIN C. WATKINS, Appellant, v. SHERIFF,
No. 6489
May 14, 1971 484 P.2d 1086
Habeas corpus proceeding by petitioner charged with furnishing narcotics. The district
court denied the petition, and petitioner appealed. The Supreme Court held that furnishing,
as contained in complaint and information charging petitioner with furnishing narcotics,
portrayed same meaning as other acts explicitly prohibited by statutes; thus, petitioner was
not prejudiced, even though act of furnishing narcotics was not explicitly included in acts
prohibited by the statutes, as person of common understanding would know what was
intended by the information.
Affirmed.
John W. Bonner, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, Charles L. Garner,
1. Indictment and Information.
Neither statutes nor decided cases insist upon strict conformance to statutory phraseology in charging
portion of information, and if words used convey same meaning as those in statute, and substantial rights of
defendant are not prejudiced, words of common understanding are acceptable. NRS 173.075.
2. Criminal Law.
Furnishing, as contained in complaint and information charging petitioner with furnishing narcotics,
portrayed same meaning as other acts explicitly prohibited by statutes; thus, petitioner was not prejudiced,
even though act of furnishing narcotics was not explicitly included in acts prohibited by the statutes, as
person of common understanding would know what was intended by the information. NRS 173.075,
453.020, subds. 5, 16, 453.030, 453.210, subd. 2.
Unless accused is able to affirmatively demonstrate that information is so defective that it results in
miscarriage of justice or actually prejudices him in respect to a substantial right, no relief will be
afforded him, even when challenge is made before trial.
will be afforded him, even when challenge is made before trial. NRS 173.075.
OPINION
Per Curiam:
The appellant was charged by criminal complaint with furnishing narcotics in violation
of NRS 453.030 and NRS 453.210(2). After a preliminary examination he was bound over to
the district court for trial. He sought a writ of habeas corpus on the grounds that the
complaint, and the information which was subsequently filed using the same language as was
used in the complaint, failed to state a public offense under the provisions of NRS
453.010-453.240, in that the act of furnishing narcotics is not explicitly included in the acts
prohibited by the statutes. The district court denied the petition and this appeal is taken from
that order of denial.
The acts expressly prohibited are found in NRS 453.030.
1
Although the language of the
complaint and the information does not specifically charge the appellant with any of the listed
prohibited acts,
2
another section, NRS 453.020, supplies definitions of certain of those acts
which sufficiently broadens the scope of NRS 453.030 to include the act of furnishing
narcotics. The prohibited act of dispensing is defined
3
to include distribute, leave with,
give away, dispose of, or deliver. In addition, a sale is defined
4
as including barter,
exchange, or gift, or offer therefor. . . .
[Headnotes 1, 2]
The complaint and the information could have been more concisely drafted to preclude the
attack. However, neither the statutes nor the decided cases insist upon strict conformance to
the statutory phraseology in the charging portion of an information, and if the words used
convey the same meaning as those in the statute, and the substantial rights of the
defendant are not prejudiced, words of common understanding are acceptable.
____________________

1
NRS 453.030: It shall be unlawful for any person to manufacture, possess, have under his control, sell,
prescribe, administer, dispense, or compound any narcotic drug, except as authorized in NRS 453.010 to
453.240, inclusive. (See also NRS 453.210(2).)

2
The complaint and the information charge the appellant with having committed the crime of furnishing
narcotics (felonyNRS 453.030 and NRS 453.210(2)) in the manner following, to-wit: That [he] . . . did then
and there willfully, unlawfully, and feloniously furnish narcotic drugs, to-wit, Cannabis Sativa L., commonly
known as marijuana, to a person over the age of 21 years. . . . (Emphasis added.)

3
NRS 453.020(5): Dispense' includes distribute, leave with, give away, dispose of, or deliver.

4
NRS 453.020(16): Sale' includes barter, exchange, or gift, or offer therefor, and each such transaction
made by any person, whether as principal, proprietor, agent, servant, or employee.
the statutory phraseology in the charging portion of an information, and if the words used
convey the same meaning as those in the statute, and the substantial rights of the defendant
are not prejudiced, words of common understanding are acceptable. Gallegos v. State, 84
Nev. 608, 446 P.2d 656 (1968).
5
The word furnishing as contained in the complaint and
information portrays the same meaning as other acts explicitly prohibited by the statute, and a
person of common understanding would know what was intended by the information filed
against this appellant.
It is to be noted that NRS 453.210(2), in designating the penalty to be assessed,
specifically includes supplying or giving away of narcotic drugs or marijuana.
Furnish as defined in Webster's Third New International Dictionary includes To
provide; supply; give; to provide or supply with what is needed, useful, or desirable; to make
a gift of something (needed or desirable); [I]t is a general term indicating supplying and
providing, it may apply to anything supplied.
In People v. Hill, 129 P. 475 (Cal.App. 1912), it was said: [U]nder the charge made, a
person described as furnishing' liquor might be proved to be one who had given it away.
Furnishing narcotics is within the scope of our statutes prohibiting the sale or dispensing
of any narcotic drug, although they do not expressly so forbid. Cf. Glosen v. Sheriff, 85 Nev.
166, 451 P.2d 843 (1969), where we held that the definition of a sale under NRS
453.020(16), was sufficiently broad to include the conduct of an accused who made no profit
from the transaction. The requirements of NRS 173.075
6
have been met.
____________________

5
Construing former NRS 173.300, NRS 173.100, NRS 173.320 and NRS 173.310(6) which have since been
repealed and superseded by NRS 173.075.

6
NRS 173.075: 1. The indictment or the information shall be a plain, concise and definite written statement
of the essential facts constituting the offense charged. It shall be signed by the district attorney. It need not
contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.
2. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a
single count that the means by which the defendant committed the offense are unknown or that he committed it
by one or more specified means.
3. The indictment or information shall state for each count the official or customary citation of the statute,
rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the
citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a
conviction if the error or omission did not mislead the defendant to his prejudice.
[Headnote 3]
Furthermore, the appellant has shown no prejudice as a result of the use of the substituted
word furnish. Unless an accused is able to affirmatively demonstrate that the information is
so defective that it results in a miscarriage of justice or actually prejudices him in respect to a
substantial right, no relief will be afforded him, even when the challenge is made before trial.
Cf. Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968) and Laney v. State, 86 Nev. 173, 466
P.2d 666 (1970).
In this instance the charge was sufficiently clear to enable the appellant to adequately
prepare a defense, and the information is sufficiently clear under the general principles of law
by which it must be tested. The appellant has failed to show any prejudice to his defense. We
find no error in the order of the district court denying the writ of habeas corpus.
Affirmed.
____________
87 Nev. 236, 236 (1971) Turpin v. Sheriff
BERNARD TURPIN, Appellant, v. SHERIFF, CLARK
No. 6512
May 14, 1971 484 P.2d 1083
Appeal from an order denying a pre-trial petition for habeas corpus. Eighth Judicial
Pre-trial habeas corpus proceeding brought by petitioner charged with robbery and rape
with substantial bodily harm. The district court denied petition and petitioner appealed. The
Supreme Court held that testimony of physician who treated rape victim that there had been
considerable tearing of area around vagina and rectum, three or four lacerations within
vagina, considerable bleeding and so much pain that victim had to be anesthetized constituted
sufficient competent evidence of substantial bodily harm as alleged in indictment.
Affirmed.
Robert G. Legakes, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
1. Criminal Law.
State's election to proceed on indictment charging robbery and rape and its dismissal of proceeding under
information charging same offenses in substantially same language did not violate statute providing that
order for dismissal of action shall bar another prosecution for same offense. NRS 178.554, 178.562,
subd. 1, 200.363, subd. 1(a).
2. Criminal Law.
Where charge of aiding and abetting rape was contained in information but not in indictment on which
state elected to proceed, dismissal of information barred further prosecution of defendant on that charge.
NRS 178.554, 178.562, subd. 1, 200.363, subd. 1(a).
Defendant was not entitled to dismissal of indictment on ground that unauthorized person, secretary from
district attorney's office, remained present while grand jury was in session, where secretary was listed on
grand jury minutes as being among those whose presence was required and it was not charged that
secretary had been present during grand jury deliberations or voting. NRS 172.235.
4. Habeas Corpus.
Challenge to validity of grand jury proceedings must be made by motion and not by pre-trial habeas
corpus proceedings.
5. Habeas Corpus.
Testimony of physician who treated rape victim that there had been considerable tearing of area around
vagina and rectum, three or four lacerations within vagina, considerable bleeding and so much pain that
victim had to be anesthetized constituted sufficient competent evidence of substantial bodily harm as
alleged in indictment, precluding pre-trial habeas corpus. NRS 173.135, 200. 363, 200.380.
OPINION
Per Curiam:
The appellant was charged by criminal complaint with robbery (NRS 200.380), rape (NRS
200.363) and aiding and abetting rape (NRS 200.363 and NRS 173.135). After a preliminary
examination he was held to answer. An information charging those crimes was filed on June
17, 1970. On October 1, 1970, the appellant was charged by grand jury indictment with the
crimes of robbery and rape,
1
in substantially the same language as was charged in the
criminal complaint and in the information, but with the additional allegation in the rape count
that the appellant inflicted substantial bodily harm on the victim. (NRS 200.363(1)(a).) On
October 8, 1970, the district attorney elected to proceed solely on the indictment, and he
moved to dismiss the information.
____________________

1
The aiding and abetting charge was not contained in the grand jury indictment.
on the indictment, and he moved to dismiss the information. Counsel for the appellant
announced that there was no objection to the requested dismissal of the information, and the
court ordered the information dismissed. The appellant then petitioned for a writ of habeas
corpus. The writ was denied. This appeal followed.
It is first contended that NRS 178.554
2
and NRS 178.562
3
forbid any further prosecution
of the appellant once the state moved for a dismissal of the information and the requested
dismissal was granted. We do not agree.
While the same contention was not under direct consideration in Tellis v. Sheriff, 85 Nev.
557, 459 P.2d 364 (1969), we there found no jurisdictional defect in dual proceedings against
an accused consisting of a grand jury indictment for the same offense which had been
previously charged in an outstanding information. That holding was affirmed in Hall v.
Sheriff, 86 Nev. 456, 470 P.2d 422 (1970), where we again approved such dual proceedings
as the concurrent pendency of a grand jury indictment and a criminal complaint. It was
reaffirmed by Simpson v. Sheriff, 86 Nev. 803, 476 P.2d 957 (1970). In Tellis, Hall and
Simpson, supra, the prior proceedings by which the prosecution had been commenced were
dismissed by the state after the grand jury indictment had been returned.
[Headnotes 1, 2]
We fail to discern any prejudice to an accused when one of two pending vehicles for
prosecution is dismissed, leaving him accused by only one. Such an election by the state is in
no way detrimental to the accused, so long as the prohibition of NRS 178.562(1) against
another prosecution is not violated. In this connection we hold that the state's election to
proceed on one of two pending and viable forms of prosecution, and its dismissal of the
proceeding under which it has elected not to prosecute, is not in violation of the provisions of
NRS 178.562(1).
4
[Headnote 3]
[Headnote 3]
____________________

2
NRS 178.554, in pertinent part, reads: . . . The district attorney . . . may by leave of court file a dismissal of
an indictment, information or complaint and the prosecution shall thereupon terminate. . . .

3
NRS 178.562(1) reads: 1. An order for the dismissal of the action, as provided in NRS 178.554 and NRS
178.556, shall be a bar to another prosecution for the same offense.

4
However, it is noted that the charge of aiding and abetting rape was contained in the criminal complaint and
in the information which was dismissed. It was not charged in the grand jury indictment. The
[Headnote 3]
It is next contended that the presence of an unauthorized person while the grand jury was
in session requires a dismissal of the indictment. The transcript of the grand jury proceedings
reveals the presence of a secretary from the district attorney's office, which the appellant
charges is in violation of NRS 172.235.
5
However, the minutes of the grand jury
proceedings, which are a part of the record on this appeal, specifically list the name of the
secretary from the district attorney's office as being among others whose presence is required
by the grand jury. Thus the appellant has not carried the burden of persuasion in making it
apparent that there was an unauthorized person present during the grand jury session, and
there is no charge at all that the secretary from the district attorney's office was present during
the grand jury deliberations or voting. Lujan v. State, 85 Nev. 16, 449 P.2d 244 (1969).
[Headnote 4]
Moreover, such a challenge to the validity of the grand jury proceedings is one which
properly must be made by motion (NRS 174.105(1)) and not by pre-trial habeas corpus
proceedings. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969).
[Headnote 5]
Finally, the appellant argues that the state failed to prove by competent evidence the
substantial bodily harm charged by the indictment. Although no authority is submitted in
support of that contention the transcript of the grand jury proceedings has been reviewed, and
it contains sufficient evidence to support the charge of rape with substantial bodily harm.
The physician who treated the rape victim testified that there was considerable tearing of
the area around the vagina and the rectum. There were three or four lacerations within the
vagina. There was considerable bleeding, and so much pain
____________________
dismissal of the information without another pending vehicle for the prosecution of the accused for aiding and
abetting rape, runs afoul of the provisions of NRS 178.562(1), and bars further prosecution of the appellant on
that charge.

5
NRS 172.235 reads: The district attorney, the witness under examination, interpreters when needed, a
stenographer for the purpose of taking the evidence, any person engaged by the grand jury pursuant to NRS
172.205, and any person requested by the grand jury to be present may be present while the grand jury is in that
the victim had to be session, but no person other than the jurors may be present while the grand jury is
deliberating or voting.
that the victim had to be anesthetized. Such testimony constitutes sufficient competent
evidence of substantial bodily harm as alleged in the indictment.
Affirmed.
____________
87 Nev. 240, 240 (1971) Jacobsen v. Ducommun, Inc.
PAUL JACOBSEN, Appellant, v. DUCOMMUN, INCORPORATED, a California
Corporation; DUCOMMUN METALS & SUPPLY CO; E. JORDAN BROOKES CO., INC.,
Respondents.
No. 6275
May 17, 1971 484 P.2d 1095
Appeal from a order quashing the service of process. Eighth Judicial District Court, Clark
Action by plaintiff suffering from berylliosis allegedly contracted by working on metals
supplied by defendant corporation which was served with process under the long-arm statute.
The district court granted motion to quash the service of summons on the ground that the
complaint did not allege that the product was defective. The plaintiff appealed. The
Supreme Court, Batjer, J., held that for the purpose of service of process dangerous and
defective could be treated in the same context and that, under the rule requiring only a short
and plain statement of the claim, showing that the pleader is entitled to relief, the trial court
erred in quashing the service.
Singleton, Beckley, DeLanoy, Jemison & Reid, Chartered, of Las Vegas, for Appellant.
Cromer and Barker, of Las Vegas, for Respondent E. Jordan Brookes Co., Inc.
1. Courts.
Common sense intent of long-arm statute was to afford injured resident of state an opportunity to effect
service of process upon an entity not otherwise amenable to service who manufactures, produces, makes,
markets, or otherwise supplies, directly or indirectly, any product for distribution, sale or use which causes
injury to persons or property resulting from such distribution, sale or use; such opportunity places injured
resident of this state upon equal footing with residents of other jurisdictions, similarly injured, who have
opportunity to make personal service upon offending entity.
who have opportunity to make personal service upon offending entity. NRS 140.080.
2. Process.
For purpose of service of process under long-arm statute, dangerous and defective can be treated in
same context, and liability can follow if, on merits, it is established that product is either dangerous or
defective. NRS 140.080.
3. Corporations.
Under rule requiring short and plain statement of claim, showing that pleader is entitled to relief, plaintiff
who contracted berylliosis as alleged result of working on metals sold and distributed by corporation on
which service of process was made under long-arm statute, service of process was erroneously quashed on
mere ground that plaintiff alleged that offending product was dangerous rather than defective. NRS
14.080; NRCP 8(a).
OPINION
The appellant was originally employed on October 4, 1961 by Edgerton, Germeshausen &
Grier, Inc., also known as E. G. & G., Inc. Thereafter, he worked as an instrument maker
which entailed the machining, on a lathe, of metals and metal alloys. The appellant worked on
aluminum, cold rolled iron, cold rolled steel, brass, copper, beryllium copper, several types of
pure beryllium, and phenolic. In September of 1966, while still in the employ of E. G. & G.,
Inc., the appellant experienced difficulty in breathing and was admitted to a hospital for tests
and observation. The tests indicated that he was suffering from berylliosis, a lung disease. As
a result of this malady, surgery was performed and one of the appellant's lungs was removed.
The appellant (the plaintiff below) filed his amended complaint on April 17, 1969,
alleging inter alia; that the respondents sold and distributed beryllium and beryllium-copper
alloys to his employer; that the respondents failed to warn the appellant of the dangers and
hazards to his health relating to such products; that the respondents knew, or should have
known, that beryllium and beryllium-copper alloys were dangerous substances capable of
causing great bodily harm; and that the appellant suffered serious injury to his respiratory
system requiring removal of his right lung as a result of his contact with beryllium.
Service of process was made pursuant to the provisions of NRS 14.080, by personal
service upon the Secretary of State of Nevada, and service upon respondent, E. Jordan
Brookes Co., Inc. by registered mail. Ducommun, Inc. and Ducommun Metals & Supply Co.
both filed answers and are not involved in this appeal. E. Jordan Brookes Co., a
corporation not authorized to do business in this state, relying on Drew Rentals v.
Inc. by registered mail. Ducommun, Inc. and Ducommun Metals & Supply Co. both filed
answers and are not involved in this appeal. E. Jordan Brookes Co., a corporation not
authorized to do business in this state, relying on Drew Rentals v. District Court, 84 Nev.
201, 438 P.2d 253 (1968), filed a motion to quash service of summons upon the ground that
the complaint does not allege that the product was defective. The trial court agreed with the
contention of E. Jordan Brookes Co., and ordered the service of summons to be quashed.
The appellant contends that the trial court erred in its ruling and we agree. The respondent
and the trial court have both placed far too narrow an interpretation on the rulings of this
court in Drew v. District Court, supra, and Metal-Matic, Inc. v. District Court, 82 Nev. 263,
415 P.2d 617 (1966). We cannot accept their restricted interpretation of these cases.
[Headnote 1]
Although in both Drew Rentals and Metal-Matic, this court spoke in terms of a defective
product and announced that the clear intent of the Nevada legislature in enacting NRS 14.080
was to provide a means whereby persons harmed in this state by a defective product
originating from outside the state could obtain jurisdiction over the responsible party, there
was no intention in those cases to unreasonably limit the effect of NRS 14.080. The common
sense intent of that statute is to afford an injured resident of this state an opportunity to effect
service of process upon an entity not otherwise amenable to service who manufactures,
produces, makes, markets or otherwise supplies, directly or indirectly, any product for
distribution, sale or use which causes injury to persons or property resulting from such
distribution, sale or use. Such an opportunity places the injured resident of this state upon an
equal footing with residents of other jurisdictions, similarly injured, who have an opportunity
to make personal service upon the offending entity.
[Headnotes 2, 3]
If E. Jordan Brookes Co., Inc., happened to be a resident corporation of this state and
personal service of process had been effected upon a proper officer of that corporation, the
service of process could not have properly been quashed merely because the plaintiff alleged
that the offending product was dangerous rather than defective. To hold otherwise would
exalt a distinction without a reasonable basis for it.
Pursuant to NRCP 8(a),
1
all that is required is a short and plain statement of the claim,
showing that the pleader is entitled to relief. In Metal-Matic, Inc. v. District Court, supra, this
court held that if it is reasonably foreseeable that a product will enter the flow of commerce,
the requirements of due process have been satisfied, and a defendant may be sued in any state
where the product causes injury without regard for how may hands have touched the product
prior to injury, and went on to say: We conclude that under NRS 14.080 Nevada may
acquire jurisdiction over a foreign manufacturer of a product which it reasonably may expect
to enter interstate commerce, which does enter interstate commerce, and because of an
alleged defect, causes injury in Nevada to the plaintiff. (Emphasis added.)
In 32 Tenn.L.Rev. 363, 373, the author wrote: [N]o single definition of defect has proved
adequate to define the scope of the manufacturer's strict liability in tort for physical injuries.
According to Comment h following 402A of the Second Restatement of Torts, where a
defendant has reason to anticipate that danger may result from a particular use of his
product and he fails to give adequate warning of such a danger, a product sold without such
warning is in a defective condition. See Crane v. Sears Roebuck & Co., 32 Cal.Rptr. 754
(Cal.App. 1963); Canifax v. Hercules Powder Co., 46 Cal. Rptr. 552 (Cal.App. 1965); 13
A.L.R.3d 1057 6(b). See also Santor v. A and A Karagheusian, 207 A.2d 305 (N.J. 1965),
where the court stated that it was not necessary in the context of that case to attempt to define
the outer limits of the word defect, but that it was sufficient to say that the concept was a
broad one and that the range of operation of this concept must be developed as the problems
arise, and by courts mindful that the public interest demands consumer protection.
For the purpose of service of process, dangerous and defective can be treated in the
same context because a product can be dangerous because it is defective, even though it can
also be dangerous without being defective. Liability could follow if, on the merits, it is
established that the product is either dangerous or defective. Crane v. Sears Roebuck & Co.,
supra; Canifax v. Hercules Powder Co., supra; and cases collected in 13 A.L.R.3d 1057
6(b).
____________________

1
NRCP 8(a): A pleading which sets forth a claim for relief, whether an original claim, counterclaim,
cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.
Relief in the alternative or of several different types may be demanded.
The order of the district court quashing the service of process is reversed and the matter is
remanded for further proceedings.
____________
87 Nev. 244, 244 (1971) Johnson v. Johnson
MINNIE DEE JOHNSON, Appellant, v. BASIL
ALVIN JOHNSON, Respondent.
No. 6301
MINNIE DEE JOHNSON, Appellant, v. ALTA
SMITH JOHNSON, Respondent.
No. 6302
May 17, 1971 484 P.2d 1072
Appeal from a decree of divorce and an order denying a petition to terminate a
guardianship; Eighth Judicial District Court, Clark County; William R. Morse, Judge.
Husband filed divorce action and wife filed petition to terminate paternal grandmother's
guardianship of child. The district court granted the wife a divorce and denied her petition to
terminate the guardianship. The wife appealed. The Supreme Court, Batjer, J., held that fact
that divorce decree allowed husband right of child visitation every other week instead of
every other weekend as reflected in order of district court was a clerical mistake which could
be corrected. The court further held that where there was nothing more in the record than the
minutes and findings of trial court, Supreme Court could not properly review, much less
make a finding of clear abuse and manifest error on part of district court in denying mother's
petition to terminate paternal grandmother's guardianship of child.
Scotty Gladstone, of Las Vegas, for Appellant.
Jones & Holt, of Las Vegas, for Respondent Alta Smith Johnson.
Monte J. Morris, of Las Vegas, for Respondent Basil Alvin Johnson.
1. Guardian and Ward.
Where order appointing paternal grandmother as guardian of person of child was in full force and effect
at time that divorce action of child's parents was heard and judgment entered, custody of child could not be
awarded in divorce action to divorced mother. NRS 3.210.
2. Divorce.
That divorce decree allowed husband right of child visitation every other week instead of every other
weekend as reflected in order of district court was a clerical mistake which could be corrected. NRCP
60(a).
In matters of guardianship the district courts derive their jurisdiction directly from constitution and
statute, and jurisdiction does not depend upon a showing of necessity and convenience. NRS 3.210;
Const. art. 6, 6.
Where trial court not only had written consent of both natural parents to adoption of child by paternal
grandmother, but mother as well as child and paternal grandmother were physically present in court when
order appointing guardian was entered, jurisdiction of district court was beyond question, and if mother had
ever intended to attack sufficiency of evidence supporting order appointing guardian she was required to
launch that attack within times prescribed by pertinent statutes and rules or be forever barred. NRS
3.210; Const. art. 6, 6.
The fact that trial court in divorce proceeding found mother fit to have custody of minor children other
than child who had been adopted by paternal grandmother did not, as a matter of law, compel divorce court
to terminate guardianship of child. NRS 3.210.
Where transcript of hearing of divorce case and hearings on wife's petition to terminate paternal
grandmother's guardianship of child and statement of evidence were not before Supreme Court, Supreme
Court would presume that trial court found presumption of parental preference to have been overcome.
NRCP 75(n); NRS 3.210, 125.140, subd. 1, 159.050.
Findings, if they are within issues raised by pleadings, must be presumed to have been supported by
evidence presented to lower court when there is no record of testimony upon which to predicate any other
determination.
Where there was nothing more in the record than the minutes and findings of trial court, Supreme Court
could not properly review, much less make a finding of clear abuse and manifest error on part of district
court in denying mother's petition to terminate paternal grandmother's guardianship of child. NRCP 75(n);
NRS 3.210.
OPINION
We have heretofore ordered these cases to be combined for our consideration. To the
extent that the briefs on file are relevant and material they are being considered in both cases.
On April 26, 1967, the appellant and Basil Alvin Johnson, the natural parents of Susie
DeeLin Johnson, consented in writing to the appointment of Alta Smith Johnson, the
child's paternal grandmother, as her guardian.
the natural parents of Susie DeeLin Johnson, consented in writing to the appointment of Alta
Smith Johnson, the child's paternal grandmother, as her guardian. Subsequently, in October of
1969, the appellant and Basil Alvin experienced marital difficulties which culminated in
divorce proceedings being commenced by him.
During the pendency of the divorce proceedings the appellant filed a petition to terminate
the guardianship. In the divorce proceedings the trial court granted the appellant a divorce and
found her to be a fit mother to have the custody of the other four children of the marriage, but
later denied her petition to terminate the guardianship.
In her attack upon the decree of divorce, the appellant contends that the trial court
committed reversible error when it only awarded her custody of the four children and failed
therein to also award her custody of Susie DeeLin. She also contends that the decree
erroneously allowed Basil Alvin the right of visitation every other week instead of every other
weekend as reflected in the minute order of the district court.
[Headnote 1]
At the time that the divorce action was heard and judgment entered, there was in full force
and effect an order of the Eighth Judicial District Court of the State of Nevada in and for the
County of Clark appointing Alta Smith Johnson the guardian of the person of Susie DeeLin.
Until such time as that order appointing the guardian might be set aside by a court of
appropriate jurisdiction or until it was extinguished by the operation of law, any independent
action to award custody of Susie DeeLin to the appellant or anyone else would be precluded.
Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).
[Headnote 2]
Basil Alvin has not controverted the appellant's assertion that he should be allowed child
visitation only every other weekend rather than every other week. He has waived the filing of
an answering brief and has offered to stipulate to cure the typographical error occurring in
the decree of divorce heretofore entered. This appears to be a clerical mistake which may be
corrected within the scope of NRCP 60(a).
1

In her attack upon the order denying her petition to terminate the guardianship of Susie
DeeLin, the appellant asserts that finding her fit to have custody of the other four children
compels reversal of that order of the trial court.
____________________

1
NRCP 60(a): Clerical mistakes in judgments, orders or other parts of the record and errors therein arising
from oversight omission may be corrected by the court at any time of its own initiative or on the motion of any
party and after such notice, if any, as the
that finding her fit to have custody of the other four children compels reversal of that order of
the trial court. The appellant also contends that the original proceedings upon the petition for
the appointment of a guardian for Susie DeeLin was defective inasmuch as the lower court
lacked jurisdiction to determine the matter because there was no specific finding that the
appointment was necessary and convenient.
[Headnotes 3, 4]
The appellant mistakes a requirement of proof for an element of jurisdiction. In matters of
guardianship the district courts derive their jurisdiction directly from the Nevada
Constitution, Art. 6, 6,
2
and NRS 3.210.
3
Jurisdiction does not depend upon a showing of
necessity and convenience. Here the trial court not only had the written consent of both
natural parents, but the appellant as well as Susie DeeLin and her paternal grandmother were
physically present in the court when the order appointing the guardian was entered. The
jurisdiction of the district court is beyond question. If the appellant had ever intended to
attack the sufficiency of the evidence supporting the order appointing the guardian she was
required to launch that attack within the times prescribed by the pertinent statutes and rules or
be forever barred.
[Headnotes 5-7]
On March 4, 1970, after several hearings, the trial court for good cause specifically
denied the petition by the appellant to terminate the guardianship of Susie DeeLin. The fact
that the trial court, in the divorce proceeding, found the appellant to be fit to have the
custody of the other minor children of the parties did not, as a matter of law, compel that
court to terminate the guardianship of Susie DeeLin.
____________________
court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed
in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate
court.

2
Nevada Constitution, Art. 6, 6 (in pertinent part): The District Courts in the several Judicial Districts of
this State shall have original jurisdiction in all cases . . . relating to the estates of deceased persons, and the
persons and estates of Minors and insane persons.

3
NRS 3.210: The district courts shall have power to open and receive the proofs of last wills and testaments
and to admit them to probate; to grant letters testamentary of administration and guardianship and to revoke the
same for cause shown, according to law; to compel executors, administrators and guardians to render an account
when required or at the period fixed by law; to order the sale of property of estates or belonging to minors; to
order the payment of debts due by estates; to order and regulate all partitions of property or estates of deceased
persons; to compel the attendance of witnesses; to appoint appraisers or arbitrators; to compel the production of
title papers or other property of an estate or of a minor; and to make such other orders as may be necessary and
proper in the exercise of the jurisdiction conferred upon them by law.
that the trial court, in the divorce proceeding, found the appellant to be fit to have the custody
of the other minor children of the parties did not, as a matter of law, compel that court to
terminate the guardianship of Susie DeeLin. We do not have a transcript of those hearings nor
a statement of the evidence (NRCP 75(n))
4
so we must presume that the trial court found the
presumption of parental preference to have been overcome. NRS 125.140(1); NRS 159.050;
McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970); Hesse v. Ashurst, 86 Nev. 326, 468
P.2d 343 (1970). A party who is financially or otherwise unable to provide this court with a
transcript of a hearing or trial in the lower court is not without a remedy. NRCP 75(n) allows
an adequate alternative to an actual transcript of the proceedings. Here the appellant has failed
to avail herself of the benefits of that rule. The record filed with this court contains only the
court minutes of the hearing of the divorce complaint as well as the hearings on the petition to
terminate the guardianship. Without a complete transcript of the testimony taken at those
hearings or a statement of the evidence or proceedings we have no basis upon which to
review the propriety of the trial court's ruling. It is an established rule of this court that
findings, if they are within the issues raised by the pleadings, must be presumed to have been
supported by the evidence presented to the lower court when there is no record of testimony
upon which to predicate any other determination. (This rule of law is conceded by the
appellant in her brief.) Quinn v. Quinn, 27 Nev. 156, 74 P. 5 (1903); Wilson v. Wilson, 23
Nev. 267, 45 P. 1009 (1896); Burns v. Rodefer, 15 Nev. 59 (1880).
In Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970), we said: It has long been the law
in this state that where findings of fact are within issues raised by pleadings, and there is no
record of testimony which can be considered, the appellate court must presume that the
evidence was sufficient to justify the findings. . . . Any fact necessary to support the order is
presumed to have been proven in the absence of an affirmative showing to the contrary.'"
In Noble v. Noble, S6 Nev. 459
____________________

4
NRCP 75(n): In the event no stenographic report of the evidence or proceedings at a hearing or trial was
made, the appellant may prepare a statement of the evidence or proceedings from the best available means,
including his recollection, for use instead of a stenographic transcript. This statement shall be served on the
respondent who may serve objections or propose amendments thereto within 10 days after service upon him.
Thereupon the statement, with the objections or proposed amendments, shall be submitted to the district court
for settlement and approval and as settled and approved shall be included by the clerk of the court in the record
on appeal.
is presumed to have been proven in the absence of an affirmative showing to the contrary.' In
Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970), we said: A trial judge has wide
discretion in all cases involving the care, custody, maintenance and control of a minor child,
and his exercise of discretion will not be disturbed on appeal unless there is a clear case of
abuse. Furthermore, in Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965), this court said:
Of course the discretion reposed in the trial judge is not unlimited, but an appellate court
will respect the lower court's view unless it is manifestly wrong. See also State v. Lewis, 50
Nev. 212, 255 P. 1002 (1927).
[Headnote 8]
With nothing more in the record than the minutes and findings of the trial court we cannot
properly review, much less make a finding of clear abuse and manifest error.
The order of the district court denying the appellant's petition to terminate guardianship is
affirmed. The decree of divorce entered by the district court is modified to allow Basil Alvin
Johnson the privilege of visiting his four youngest children on every other weekend rather
than every other week as presently provided in the decree of divorce. NRCP 60(a). In every
other particular the decree of divorce is affirmed.
____________
87 Nev. 249, 249 (1971) Yturralde v. Barney's Club, Inc.
MARTHA V. YTURRALDE and OSWALD B. YTURRALDE, Appellants,
v. BARNEY'S CLUB, INC., a Corporation, Respondent.
No. 6371
May 17, 1971 484 P.2d 1079
Appeal from judgment of First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Action by husband and wife for injuries sustained by wife when, while standing on
stairway landing in defendant's club, she was struck by another of defendant's patrons. The
district court entered judgment for defendant, and plaintiffs appealed. The Supreme Court,
Mowbray, J., held that error, if any, in excluding parts of deposition of defendant's former
chief security officer on ground that it was hearsay and inadmissible was harmless where
excluded testimony was not favorable to plaintiffs.
excluding parts of deposition of defendant's former chief security officer on ground that it
was hearsay and inadmissible was harmless where excluded testimony was not favorable to
plaintiffs.
Affirmed.
Sedgwick, Detert, Moran & Arnold and Roger Sleight, of San Francisco, California, and
Leslie A. Leggett, of Reno, for Appellants.
Wait & Shamberger and C. James Georgeson, of Reno, for Respondent.
1. Trial.
Trial court, in action by husband and wife for injuries sustained by wife when, while standing on stairway
landing in defendant's club, she was struck by another of defendant's patrons, did not err in refusing to give
plaintiffs' requested instruction as to affirmative duty of owner to protect patron against acts of third parties
where given instruction covered the issue involved.
2. Trial.
One instruction on particular issue, if adequate, is sufficient.
Error, if any, in excluding parts of deposition of defendant's former chief security officer, in action by
husband and wife for injury sustained by wife when, while standing on stairway landing in defendant's club,
she was struck by another of defendant's patrons, on ground that it was hearsay and inadmissible, was
harmless where excluded testimony was not favorable to plaintiffs. NRCP 61.
Error in failing to continue action by husband and wife for injury sustained by wife when, while standing
on stairway landing in defendant's club, she was struck by another of defendant's patrons, so that plaintiffs
could use medical witness who was in surgery at time of trial was harmless where plaintiffs made no offer
of proof as to doctor's testimony, did not offer his medical records, and jury absolved defendant of any
negligence and therefore never reached issue of damages.
OPINION
This is an appeal from a jury's verdict in favor of respondent-defendant Barney's Club,
Inc., and denying the claim of appellants-plaintiffs Martha V. and Oswald B. Yturralde for
damages for injuries Martha suffered while standing on a stairway landing in Barney's Club.
Martha was struck by one Richard Herman Wohlert, a patron, who was exiting the
premises.
Richard Herman Wohlert, a patron, who was exiting the premises. Appellants have specified
several assignments of error that they claim the trial judge committed during the trial. We
reject all the assignments, and we affirm the verdict of the jury.
1. The Facts.
The factual background of this case is simple and brief. The appellants were patrons of
Barney's Club on the date of the accident. So was Wohlert, who had been drinking. Security
Guard Jerome Keithley had asked Wohlert to leave the premises. He did so, but returned
briefly to visit the men's room. As Wohlert was leaving the second time, he stumbled on the
stairs, knocked Martha down, scrambled to his feet, and ran out to the parking lot. Martha
was injured and hospitalized.
2. The Instructions.
[Headnotes 1, 2]
Appellants requested the district judge to give as an instruction to the jury, Section 344 of
the Restatement (Second) of Torts.
1
The district judge refused to give the requested
instruction, but he did give Appellants' Instruction No. 22.
2
Without passing on the propriety
of the rejected instruction, we believe that in this case the judge acted properly, because
Instruction No. 22 covered the issue involved, i.e., the affirmative duty of an owner to
protect a patron against the acts of third parties.
____________________

1
Restatement (Second) of Torts, 344 (1965):
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability
to members of the public while they are upon the land for such a purpose, for physical harm caused by the
accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor
to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

2
Instruction No. 22:
The proprietor of a place of business owes a duty of exercising reasonable or ordinary care to protect his
patrons from injury at the hands of fellow guests. Any guest of such a place who is himself exercising ordinary
care for his own safety and who has no information which would lead a reasonable person to a different
conclusion has the right to assume that he is in an orderly house and that the proprietor through his employees
will exercise reasonable care in maintaining appropriate decorum. An owner's duty to his invitees requires him to
exercise reasonable care against injury through the negligence of [sic] wrongful acts of other invitees on the
premises where the owner has reasonable cause to anticipate such acts and the probability of injury resulting
therefrom. The proprietor's duty arises from his right of control over the premises and his power to restrain or
expel offenders against the peace and safety of the premises.
No. 22 covered the issue involved, i.e., the affirmative duty of an owner to protect a patron
against the acts of third parties. One instruction on a particular issue, if adequate, is sufficient.
In Duran v. Mueller, 79 Nev. 453, 460, 386 P.2d 733, 737 (1963), this court said:
. . . If one instruction adequately covers a given theory of liability or defense, it is
preferable that the court refuse additional instructions relating to the same theory, though
couched in different language. . . .
3. The Deposition.
[Headnote 3]
Appellants read to the jury part of the deposition of the former Chief Security Officer, Curt
Carter. The district judge excluded certain parts of the deposition on the ground it was
hearsay and not admissible.
3
These rejected portions of Carter's deposition were hearsay, but
appellants contend such portions were admissible in evidence under exceptions to the
exclusionary rule.
____________________

3
Excluded portions of deposition of Curt Carter:
Q [by Mr. Leggett, counsel for appellants-plaintiffs] Did Mr. Keithley tell you how the accident occurred?
A Yes. He had stated he first observed Mr. Wohlert in the premises when he was performing his duties in the
pit area, as is referred to in the casinos. At that time Mr. Wohlert apparently confronting either his wife or
possibly a girl friend, a female subject in there, and their conversation became very loud and boisterous there in
public view. And at that time Mr. Keithley went over and advised Mr. Wohlert that he was either to conduct
himself in a peaceful and lawful and orderly manner upon the premises or he would have to leave.
. . .
Q How long before the incident involving Mrs. Yturralde did this take place?
A I would say approximately five minutes at the most.
Q Did Mr. Keithley tell you what Mr. Wohlert's condition was at that time with reference to intoxication or
sobriety?
A Yes. He stated that it was apparent that Mr. Wohlert had been drinking, due to the strong odor of an
alcoholic beverage upon his person. But due to the physical prowess and stabilityhis stability was
satisfactoryhe did not appear to be influenced or impaired as far as his ability in a physical capacity.
Q After Mr. Keithley instructed Mr. Wohlert to change his demeanor, what did Mr. Wohlert then do?
A He appeared to become very complacent at first, after being contacted by Mr. Keithley. But after a couple
of more words, I guess, at that time, with his alleged wife or girl friend, he observed Mr. Keithley looking at him
as though to say I told you, you know, of his demeanor. In other words, if you are going to conduct yourself in
this manner, you will have to leave. Which at that time he left in a hurry and went out the door. And upon going
out the door, apparently through Mr. Keithley's observation, he returned to possibly utilize the
exclusionary rule. We question this. In making the statements quoted by Carter, Keithley was
not speaking for his employer, he was relating his recollection of events to his employer's
agent. In any event, if the trial court's action was error, it was harmless, for we do not view
the excluded testimony as favorable to appellants. Apparently it was offered to show that
respondent had notice of Wohlert's condition. If so, Keithley stated, according to Carter's
statement in the deposition: [H]e [Wohlert] did not appear to be influenced or impaired as
far as his ability in a physical capacity. Appellants' rights could not have been substantially
affected by the district judge's ruling, and we reject this assignment of error. NRCP 61.
4

4. The Refusal to Continue the Trial.
[Headnote 4]
At about three o'clock in the afternoon on the second day of the trial, appellants asked the
district judge for a recess until the following day, so that Doctor Teipner, a medical witness,
could appear. The appellants advised the judge that Doctor Teipner was at that time in
surgery. The district judge refused appellants' request, and the case was concluded.
Appellants made no offer of proof as to the doctor's testimony, nor did they offer his medical
records. We are told that the district judge had warned counsel in the morning of the second
day that he would not entertain delaying recesses and that counsel should have all witnesses
available to testify, so that the trial could move along without delay.
____________________
rest room area or something. At this time he came back in the building and went upstairs. Mr. Keithley
apparently pursued Mr. Wohlert to see where he was going due to the fact he had already left, been asked to
leave, and then Mr. Keithley observed him leaving the rest room area and coming back down the stairs leading
to this landing area at the time Mrs. Yturralde was coming up the stairs. He contacted her in a manner which
appeared to be accidental, as far as bodily contact, due to the fact that he was moving rapidly, not in a manner
which would be interpreted as intoxicated, but just being in a hurry, and apparently stumbled due to his speed
and hurriedness and struck her and knocked her down.

4
NRCP 61:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
While we appreciate that the management of a trial is best left to the fair and sound
discretion of the presiding judge, and that deliberate delaying tactics may not be tolerated, we
would observe that if in fact a medical witness is called into unexpected surgery, certainly an
appropriate recess normally would be in order so that he may testify before the jury. In this
case, however, the jury absolved Barney's Club of any negligence and therefore never reached
the issue of damages. The order of the court refusing to grant the requested recess was
harmless.
The verdict of the jury is affirmed.
Zenoff, C. J., Batjer and Gunderson, JJ., and Compton, D. J., concur.
____________
87 Nev. 254, 254 (1971) Cousineau v. Warden
RICHARD COUSINEAU, Appellant, v. WARDEN,
No. 6450
May 21, 1971 484 P.2d 1098
Appeal from order of Eighth Judicial District Court, Clark County, denying
post-conviction relief; Clarence Sundean, Judge.
Affirmed.
Chief Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
This appeal presents a single issue: Should the ruling of Boykin v. Alabama, 395 U.S. 238
(1969), be applied retroactively? This question has, of course, been answered in the negative
by this court. Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970); Stocks v. Warden, 86
Nev. 758, 476 P.2d 469 (1970). Appellant concedes as much and, indeed, in the lower court
he admitted to the judge that the case had no merit.
87 Nev. 254, 255 (1971) Cousineau v. Warden
lower court he admitted to the judge that the case had no merit.
This case thus clearly presents a frivolous appeal and could easily have been disposed of
under Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and Watkins v. State, 85 Nev. 102,
450 P.2d 795 (1969). Because this course was not followed, as in Watkins, we merely affirm
the trial court.
Affirmed.
____________
87 Nev. 255, 255 (1971) Pearce v. Boberg
STEPHEN DALE PEARCE and FREDERICK PEARCE, Appellants, v.
DEBRA KAY BOBERG, aka DEBRA KAY PEARCE, Respondent.
No. 6411
May 24, 1971 485 P.2d 101
Appeal from an order of the Second Judicial District Court, Washoe County, denying a
motion for change of venue; John W. Barrett, Judge.
Appeal from order of the district court denying defense motion for change of venue. The
Supreme Court held that in personal injury action arising from automobile accident near
Lovelock, where parties resided in California, important witness and hospital records'
custodian resided in California, and there existed direct air transportation to Reno but none to
Lovelock, denial of defense motion for change of venue from Reno to Lovelock was not an
abuse of discretion.
Affirmed.
Diehl, Recanzone & Evans, and Stanley Smart, of Fallon, for Appellants.
Hibbs & Bullis, and Stan L. Lyon, of Reno, for Respondent.
1. Venue.
Fact that defendants' motion for change of venue was not made before expiration of their time for
answering plaintiff's complaint did not foreclose their right to seek such relief. NRS 13.050, subd. 2(c).
2. Venue.
In personal injury action arising from automobile accident near Lovelock, where parties resided in
California, important witness and hospital records' custodian resided in California, and there existed
direct air transportation to Reno but none to Lovelock, denial of defense motion for
change of venue from Reno to Lovelock was not an abuse of discretion.
there existed direct air transportation to Reno but none to Lovelock, denial of defense motion for change of
venue from Reno to Lovelock was not an abuse of discretion. NRS 13.050, subd. 2(c).
OPINION
Per Curiam:
The defendants in a personal injury action arising from a single-car accident 17 miles east
of Lovelock, the county seat of Pershing County, have appealed from an Order of the Second
Judicial District Court in and for Washoe County, where the action was filed, denying
defendants' motion to change the place of trial from Reno to Lovelock. This relief was sought
under NRS 13.050(2), which permits the court to change the place of trial when the
convenience of the witnesses and the ends of justice would be promoted by the change. NRS
13.050(2)(c).
[Headnote 1]
The plaintiff contends that because defendants' motion was not made before expiration of
their time for answering plaintiff's complaint, the right to seek such relief is foreclosed;
however, our holding in Sheckles v. Sheckles, 3 Nev. 404 (1867), is contrary to this
contention.
[Headnote 2]
Though timely, defendants' motion was addressed to the sound discretion of the lower
court, whose exercise of discretion will not be disturbed unless manifestly abused. Fabbi v.
First National Bank, 62 Nev. 405, 413, 153 P.2d 122, 125 (1944). While some considerations
might favor a trial in Lovelock, others favor a trial in Reno, and we are therefore unable to
perceive a manifest abuse of discretion on the part of the lower court.
It would serve no useful purpose to review all of the arguments the parties have offered, on
the basis of matters both within and outside the record. However, we note that the parties
reside in California, near San Francisco; that at least one important witness for the plaintiff,
her doctor, must be brought from there for the trial; that, unless hospital records from
California can be proved in some other way, plaintiff may also be required to transport the
records' custodian to testify; that while there is direct air transportation from the San
Francisco area to Reno, there is none to Lovelock; that, while defendants claim to have
eight witnesses who are residents of Pershing County, the necessity of some is uncertain
from the record; and Lovelock is only some 92 miles from Reno, less than a two-hour trip
over a good highway.
while defendants claim to have eight witnesses who are residents of Pershing County, the
necessity of some is uncertain from the record; and Lovelock is only some 92 miles from
Reno, less than a two-hour trip over a good highway.
The Order of the lower court is affirmed.
____________
87 Nev. 257, 257 (1971) Romaine v. State Farm Mut. Auto. Ins. Co.
RICHARD JOSEPH ROMAINE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, FREDDIE LEWIS and VIVIAN BIGELOW LEWIS,
Respondents.
No. 6430
May 24, 1971 485 P.2d 102
Appeal from an order of the Eighth Judicial District Court, Clark County, granting motion
for summary judgment because of running of the statute of limitations; Llewellyn A. Young,
Judge.
Action for personal injuries sustained in automobile collision. The district court granted
motion for summary judgment on basis of running of statute of limitations, and plaintiff
appealed. The Supreme Court, Zenoff, C. J., held that court-adopted procedural computation
rule governed computation of two-year time period within which to bring personal injury
action and allowed filing of a personal injury action on Monday notwithstanding statute of
limitations had expired on preceding Saturday.
Reversed, remanded for further proceedings.
Stanley W. Pierce and Don L. Griffith, of Las Vegas, for Appellant.
Parraguirre, Rose, Pico & Norwood, Ltd., and Richard W. Myers, of Las Vegas, for
Respondent State Farm Mutual Automobile Insurance Company.
Douglas R. Pike, of Las Vegas, for Respondents Freddie Lewis and Vivian Bigelow
Lewis.
Time.
Procedural rule governed computation of two-year time period within which to bring personal injury
action and allowed filing of a personal injury action on Monday when statute of limitations
had expired on preceding Saturday, despite contentions that procedural rules apply
only after action has commenced and, being court adopted, may not operate in
construction of statute.
a personal injury action on Monday when statute of limitations had expired on preceding Saturday, despite
contentions that procedural rules apply only after action has commenced and, being court adopted, may not
operate in construction of statute. NRS 1.120, 11.190; NRCP 6(a).
OPINION
This action involves a suit for damages incurred on December 14, 1966 when an
automobile driven by Vivian Bigelow Lewis collided with an automobile driven by Richard
Joseph Romaine. Suit was commenced by filing the complaint on December 16, 1968, a
Monday. State Farm, Romaine's insurer, was allowed to intervene as a defendant under its
uninsured motorist clause and moved for summary judgment because of running of the
two-year statute of limitations.
1
The motion was granted and this appeal follows.
The two-year statute of limitations expired in this case on December 14, 1968, computed
by excluding the first day and including the last day. Rogers v. State, 85 Nev. 361, 455 P.2d
172 (1969). The question thus presented on this appeal is whether NRCP 6(a)
2
governs
computation of the time period and allows filing of an action on Monday when the statute of
limitations would have expired on the preceding Saturday.
____________________

1
NRS 11. 190. Periods of limitations prescribed. Actions other than those for the recovery of real property,
unless further limited by NRS 11.205 or by or pursuant to the Uniform Commercial Code, can only be
commenced as follows:
. . .
4. Within 2 years:
. . .
(e) An action to recover damages for injuries to a person or for the death of a person caused by the wrongful
act or neglect of another. The provisions of this paragraph relating to an action to recover damages for injuries to
a person shall apply only to causes of action which shall accrue after March 20, 1951.

2
NRCP 6(a) Computation. In computing any period of time prescribed or allowed by these rules, by the
local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or
default from which the designated period of time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the period
runs until the end of the next day which is not a Saturday, a Sunday, or a non-judicial day. When the period of
time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and non-judicial days shall be
excluded in the computation.
Respondents urge that NRCP 6(a) may not apply in this situation for two reasons: (1)
Since the NRCP are rules of procedure they may apply only after the action has been
commenced; and (2) Since the NRCP are merely court-adopted rules, their operation may not
be effected in construction of a statute.
To a large degree these questions were resolved in Rogers v. State, 85 Nev. 361, 455 P.2d
172 (1969). In that case we held that NRCP 6(a) applied to NRS 41.036(2) and required
inclusion of the first day of the period and exclusion of the last day in computing the
prescribed six-month period.
1. In Rogers, we stated: NRS 41.036 is, one, a statute and, two, applicable since it directs
the filing of a claim with the state. It does not, however, specify how time shall be computed.
NRCP 6(a) does so specify. 85 Nev. at 364. It was deemed unimportant that the effect of
application of the rule there was to determine problems incidental to the pre-filing time
period.
Admittedly, in the past there has been some division on this question. See 2 J. Moore,
Moore's Federal Practice, 6.06[2] (1970); Joint Council, etc. v. Delaware L. & W. R. Co.,
157 F.2d 417 (2d Cir. 1946) (dictum); and Davis v. United States Fidelity and Guaranty
Company, 167 S.E.2d 214 (Ga.App. 1969). The better rule, however, and that reflected in
Rogers, as well as numerous other cases, is that the rules of procedure may apply with regard
to statutes of limitations. See 4 C. Wright and A. Miller, Federal Practice and Procedure,
1163 (1969). Any split which may have once existed throughout the Federal circuits is
definitely narrowing toward the liberal view. Brown v. Porter, 163 N.W.2d 709, 710, n. 3
(Mich.App. 1968).
2. Rogers also goes far toward resolving this second problem. Respondent argues,
however, that the instant situation is different from that in Rogers because there the
application of NRCP 6(a) did not result in an extension of the prescribed period whereas
application of that rule here would result in the imposition of a two-year-and-two-day period
of limitations.
Though the asserted distinction between Rogers and this case may be real, the effect of
that distinction is not compelling. Application of NRCP 6(a) here does not result in the
modification of the prescribed statutory period. This is merely a judicial interpretation of
how' an action is to be brought after the legislature has specified what' actions may be
brought. Brown, supra, at 710.
Indeed, the United States Supreme Court applied FRCP 6{a) to a statutorily prescribed
time period, in Union National Bank v. Lamb, 337 U.S. 3S {1949). The Court stated: "Since
the rule had the concurrence of Congress, and since no contrary policy is expressed in the
statute governing this review, we think that the considerations of liberality and leniency
which find expression in Rule 6{a) are equally applicable to 2S U.S.C. 2101{c)." Id. at
40.
6(a) to a statutorily prescribed time period, in Union National Bank v. Lamb, 337 U.S. 38
(1949). The Court stated: Since the rule had the concurrence of Congress, and since no
contrary policy is expressed in the statute governing this review, we think that the
considerations of liberality and leniency which find expression in Rule 6(a) are equally
applicable to 28 U.S.C. 2101(c). Id. at 40. It is noteworthy that NRS 1.120 by which the
legislature enabled this court to adopt the Nevada Rules of Civil Procedure is very similar to
48 Stats. 1064, now 28 U.S.C. 2072 (1959), concurrence of Congress mentioned in
Lamb.
By virtue of NRCP 6(a), as applied in Rogers, it is apparent that the Monday filing of this
action was timely and summary judgment should not have been entered.
____________
THEODORE L. BLOSSER and D. MARIE BLOSSER, Appellants, v. RAY C. WILCOX,
ARIZONA COTTONSEED PRODUCTS COMPANY and NEVADA GINNING
COMPANY, Respondents.
No. 6188
May 24, 1971 483 P.2d 659
Petition for rehearing or in the alternative for clarification of mandate.
Denied.
[See opinion on merits, 87 Nev. 160, 483 P.2d 659 (1971)]
Albright, George, Johnson, Steffen & Simmons, of Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondent Arizona Cottonseed Products Company.
Morton Galane, of Las Vegas, for Respondent Ray C. Wilcox.
Appeal and Error.
Where purchasers appeared to have been in possession of property at least some of the time since vendors
filed complaint for specific performance, but vendors did not establish facts establishing their entitlement
to interest running from date action was commenced, reviewing court would leave
determination of interest to trial court.
was commenced, reviewing court would leave determination of interest to trial court.
OPINION
The Blossers urge in a petition for rehearing that the opinion filed in this matter on April 9,
1971 erred in certain legal and factual respects. Having reviewed the record and the legal
points asserted, we conclude that the aforementioned opinion is correct.
It is also urged that the original mandate be clarified to allow the Blossers to collect
interest from the date of their filing suit for specific performance of the sale contract. While it
appears respondents have been in possession of the property in question at least some of the
time since the filing of the complaint, appellants have not attempted to establish to us, by
reference to the record before us, a state of facts conclusively establishing their entitlement to
interest running from the date the instant action was commenced. Accordingly, we feel
constrained to leave this determination for the court below.
Petition for rehearing or in the alternative for clarification of mandate denied.
____________
87 Nev. 261, 261 (1971) Allen v. Webb
EMMET W. ALLEN and MYRTLE R. ALLEN, and TITLE INSURANCE AND TRUST
COMPANY, a California Corporation, Appellants, v. R. W. WEBB, Respondent.
EMMET W. ALLEN and MYRTLE R. ALLEN, Appellants on Cross-Claim, v. TITLE
INSURANCE AND TRUST COMPANY, a California Corporation, Respondent on
Cross-Claim.
No. 6332
June 1, 1971 485 P.2d 677
Appeal from a judgment of the Eighth Judicial District Court declaring a trust deed null
and void; cross-appeal from a judgment of the Eighth Judicial District Court granting motion
to dismiss. William R. Morse, Judge.
87 Nev. 261, 262 (1971) Allen v. Webb
Action by purchaser to quiet title to land subject to unrecorded deed of trust. Holders of
note secured by trust deed cross-claimed against escrow agent for its purported negligence in
failing to record trust deed. The district court entered judgment against holders of note in both
actions and they appealed. The Supreme Court, Zenoff, C. J., held that where owners of
apartment building conveyed their property to negotiator who gave them note secured by trust
deed on ranch which was conveyed to negotiator in exchange for the apartment building, and
escrow agent did not record deed of trust before negotiator conveyed ranch to bona fide
purchaser which recorded conveyance, recording by bona fide purchaser was not constructive
notice to owners of deed of trust of escrow agent's failure to record deed of trust and did not
start running of statute of limitations on negligence action against escrow agent.
Judgment in principal action affirmed; judgment in cross-action reversed; remanded
for further proceedings.
Thompson, J., dissented from reversal of the judgment below dismissing the cross-claim.
Batjer, J., concurred in part and dissented in part.
Robert Callister and Carl J. Christensen, of Las Vegas, for Emmet W. Allen and Myrtle
R. Allen.
W. Bruce Beckley, of Las Vegas, for Title Insurance and Trust Company.
Lionel Sawyer Collins & Wartman, of Las Vegas, for R. W. Webb.
Question whether hearsay exhibits were improperly admitted was deemed abandoned for failure to press
question with citations of authority.
Evidence supported finding that purchaser of ranch subject to unrecorded deed of trust purchased ranch
in good faith, paid value therefor, and had no notice of the unrecorded deed of trust.
Where there is substantial evidence in record to support lower court's findings they will not be disturbed
despite suspicions and doubts based upon conflicting evidence.
4. Evidence.
Statement made during opening argument by plaintiff's counsel in quiet title action that plaintiff was a
mere nominal holder was not a judicial admission and not enough to counter presumption that ownership
of real estate is where the title says it is.
87 Nev. 261, 263 (1971) Allen v. Webb
5. Quieting Title.
Specific finding of what consideration was paid by bona fide purchaser for ranch which was subject to
unrecorded deed of trust could be implied from the record, and failure to recite what consideration was
paid did not render the findings of fact in quiet title action by purchaser incomplete.
6. Quieting Title.
Reference to transaction involved in quiet title action as a purchase, and at other times as a trade, did
not render findings obscure since in essence the terms were one and the same.
7. Escrows.
Escrow agents who acted the part of a lawyer in preparing documents owed duty to owners of deed of
trust to record documents or advise owners when they did not record documents.
In event party relied upon in fiduciary situation fails to fulfill his obligations, and if it also fails to tell the
other party of this failure, there is a fraudulent concealment and constructive fraud, so the statute of
limitations may be tolled.
Failure of escrow agent to record deed of trust and failure to advise owners of deed of trust of that fact
resulted in tolling of statute of limitations with respect to negligence claim against escrow agent until
owners of deed of trust discovered or should have discovered their damage.
On appeal from granting of motion to dismiss action of holders of deed of trust against escrow agent for
damage resulting from failure of agent to record deed, if it was permissible to infer from the evidence that
holders of deed of trust did not have such notice as would lead reasonable person to inquire further, such
inference would have to be made.
Ordinarily the constructive knowledge of recording statutes applies to prospective purchasers of realty.
Where owners of apartment building conveyed their property to negotiator who gave them note secured
by trust deed on ranch which was conveyed to negotiator in exchange for the apartment building, and
escrow agent did not record deed of trust before negotiator conveyed ranch to bona fide purchaser which
recorded conveyance, recording by bona fide purchaser was not constructive notice to owners of deed of
trust of escrow agent's failure to record deed of trust and did not start running of statute of limitations on
negligence action against escrow agent. NRCP 8.
Whether holders of recorded deed of trust to ranch should have known of conveyance of ranch to bona
fide purchaser who recorded his deed before deed of trust was recorded, for purpose of commencing statute
of limitations on action against escrow agent for negligence in failing to record deed of trust, was question
of reasonableness of conduct.
Complaint of holders of deed of trust seeking damages from escrow agent for negligence in
failing to record deed of trust was sufficient even though complaint did not state
reasons for failing to assert claim within statutory period.
87 Nev. 261, 264 (1971) Allen v. Webb
escrow agent for negligence in failing to record deed of trust was sufficient even though complaint did not
state reasons for failing to assert claim within statutory period. NRCP 41(b).
OPINION
The Allens owned an apartment building. The Earls owned a ranch in Overton, Nevada.
Phillips owned nothing. Phillips negotiated a transaction whereby the Allens conveyed their
apartment building to Phillips, Phillips gave them a $71,500 note secured by a trust deed on
the Earls' ranch and the Earls conveyed the ranch to Phillips in exchange for the apartment
building. As a result of this escrow transaction through Title Insurance and Trust Company,
Phillips had a ranch against which he owed $71,500 to the Allens.
Title Insurance, the escrow agent, did not record the deed of trust owned by the Allens, but
instead merely mailed it to them. The Allens failed to notice the failure to record until August
29, 1956 and upon noticing the lack of the recorder's stamp on the document they recorded it.
Before that recording, Phillips conveyed the ranch to Yuma Investment and Development
Company. After an intermediate sale, R. W. Webb, purported to be a nominal holder for
Hughes Tool Company, purchased the ranch.
Subsequently, Webb brought an action to quiet his title as to the Allens who defended on
the ground that Webb's title did not result from a sale to a bona fide purchaser for value
without notice. They cross-claimed at the same time against Title Insurance and Trust
Company, the escrow agent, for its purported negligence in failing to record the trust deed in
the Allen-Phillips-Earl transaction. In the lower court the Allens lost both actions. The trial
court declared the Phillips-Allen Overton ranch trust deed null and void and granted Title
Insurance's 41B motion to dismiss.
THE PRINCIPAL ACTION
The questions on appeal are:
1. Whether the evidence supports the trial court's finding that Yuma was a bona fide
purchaser for value without notice of the earlier Phillips-to-Allen trust deed;
2. Whether it was shown that Webb is only the nominal title holder to the property, and
as such, he is not a proper party in interest as per NRCP 17{a);1
87 Nev. 261, 265 (1971) Allen v. Webb
title holder to the property, and as such, he is not a proper party in interest as per NRCP 17(a);
1

3. Whether the trial court's findings of fact are incomplete and conflicting, and as such,
are inadequate under NRCP 52(a);
2
and
[Headnote 1]
4. Whether hearsay exhibits were improperly admitted. This issue will not be entertained.
For failure to press the question with citations of authorities it is deemed abandoned.
[Headnote 2]
1. The trial court found that Yuma from whence Webb's title is derived purchased the
Overton ranch in good faith, paid value therefor, and had no notice of the earlier unrecorded
trust deed to the Allens. This finding is supported by the evidence and will not be disturbed.
Mel Decker, Yuma's President, was previously acquainted with Phillips in some limited
degree. No evidence of collusion, however, appears from the recordonly that Phillips had
considered himself entitled to a sales fee or commission for another and different transaction
involving Yuma which Decker paid by giving Phillips an interest in other property, certain
apartment lots, owned by Yuma, called Anderson Lake.
____________________

1
RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY.
(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest; but an
executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has
been made for the benefit of another, or a party authorized by statute may sue in his own name without joining
with him the party for whose benefit the action is brought; and when a statute so provides, an action for the use
or benefit of another shall be brought in the name of the State.

2
RULE 52. FINDINGS BY THE COURT.
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the
facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate
judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of
fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for
purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the
extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum
of decision is filed, it will be sufficient if the findings of fact and conclusions of law specifically appear as such
therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or
any other motion.
87 Nev. 261, 266 (1971) Allen v. Webb
by giving Phillips an interest in other property, certain apartment lots, owned by Yuma, called
Anderson Lake.
[Headnote 3]
The Allens' multifarious attack on the Yuma-Phillips dealings do not overcome the basic
principle that where there is substantial evidence in the record to support the lower court's
findings they will not be disturbed despite suspicions and doubts based upon conflicting
evidence. Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Le Mon v. Landers, 81
Nev. 329, 402 P.2d 648 (1965). Webb's burden of showing that Yuma had no notice of the
trust deed was met. Bailey v. Butner, 64 Nev. 1, 176 P.2d 226 (1947).
2. The Allens seek to take advantage of a remark made by Webb's counsel that Webb was
a mere nominal holder for Hughes Tool Company and invoke NRCP 17(a).
[Headnote 4]
The remark was made during opening argument. As such, it is not a judicial admission and
not enough to counter the presumption that the ownership of real estate is where the title says
it is. Picetti v. Orcio, 57 Nev. 52, 57, 58 P.2d 1046 (1936). We do not deem counsel's
statement to be a binding admission. Cf. Gottwalls v. Rencher, 60 Nev. 35, 51, 98 P.2d 481
(1940); Edmonds v. Perry, 62 Nev. 41, 71, 140 P.2d 566 (1943); IX Whitmore on Evidence,
2594A (1940); but cf. Laird v. Air Carrier Engine Service, 263 F.2d 948, 953 (5th Cir. 1959).
Furthermore, Webb's description of the details of the transaction indicates he is the owner and
the Allens provide no contrary evidence. The finding of fact on this point was clearly
supported by the evidence and will be upheld. Brandon v. Travitsky, supra.
[Headnote 5]
3. We cannot agree that the findings of fact are incomplete because they fail to recite what
consideration Yuma paid for the ranch. A specific finding of what the consideration was may
be implied from the record. Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970). Equity in 180
homes, as here, worth about $150,000 net above incumbrance, reasonably can be assumed as
the consideration.
[Headnote 6]
Nor is there substance to appellants' contention that the findings are obscure simply
because the transaction is sometimes referred to as a purchase, other times as a trade. In
essence they are one and the same here.
87 Nev. 261, 267 (1971) Allen v. Webb
essence they are one and the same here. Black's Law Dictionary, Purchase, 4th ed. (1951);
35A Words and Phrases, Purchaser (1963); cf. Murphy v. State, 181 P.2d 336, 354 (Ariz.
1947); Indemnity Ins. Co. v. Kircher, 191 N.E. 374 (Ohio App. 1934).
CROSS-CLAIM
Under the cross-claim the Allens sought to recover the unpaid amount due on the Phillips'
trust deed, about $71,000, from Title Insurance and Trust Company, the escrow agent,
alleging its negligence in failing to record the deed of trust. They had had successful dealings
with regard to other transactions with an officer of the company under whose direction the
escrow instructions were drafted. That officer has been with the company several years, is
considerably experienced, competent and knowledgeable. Because of those factors, the Allens
would impose liability upon the company for failure to perform an act the company
customarily performed.
The escrow instructions specifically provided that all instruments and papers required by
the escrow agent as necessary and proper and pertinent to the transaction were to be deposited
with the escrow agent and, further, said escrow agent is instructed to deliver and record all
papers. . . . (Emphasis added.)
The Title Insurance officer knew the details of the entire Allen-Phillips-Earl transaction.
The trust deed was prepared by Title Insurance and notarized by her. At the closing, she told
Mrs. Allen, Well, all papers will be recorded and yours will be mailed to you. The Allens
also paid $3.50 for a recording fee which the officer testified was for a different recording,
but that was not apparently the Allens' understanding.
Title Insurance later had further dealings with regard to the Overton ranch, then with
Phillips as the owner. It issued a Title Insurance policy, recorded a trust deed from Phillips to
the Federal Land Bank of Berkeley and recorded a deed from Phillips to Yuma. None of the
documents made mention of the Phillips-to-Allen trust deed, but it is asserted that Title
Insurance Company knew or should have been aware of the transaction as being first in time
to the Yuma deal.
On August 29, 1956, after they discovered that their trust deed had not been recorded at
the closing of the escrow, the Allens recorded their trust deed. This was 19 days after the
recording of the Phillips-to-Yuma deed, of which the Allens had no knowledge until 196S.
87 Nev. 261, 268 (1971) Allen v. Webb
had no knowledge until 1968. Meanwhile, Phillips made payments on the note until January
or February of 1957. When the payments ceased the Allens learned that Phillips was in prison
and figured their money, property and trust deed were gone. They took no action until 1968
when they recorded a default against Phillips, defended this action and cross-claimed as
stated.
Three bases were asserted by Title Insurance's motion to dismiss:
1. Title Insurance was not instructed to record the Phillips-to-Allen trust deed;
2. Running of the statute of limitations; and
3. The cross-claim failed to specify affirmative facts explaining why the Allens did not
discover the alleged fraud.
The motion was granted on the second ground.
[Headnote 7]
1. The escrow instructions recited the requirement that Title Insurance Company record
the trust deed, Title Insurance orally promised to record it and the eminence, experience and
knowledge of Title Insurance in its field is that of handling the minutiae of real estate
closings. From their superior knowledge flowed a duty to their clients, the Allens, to do such
things as recording documents or advise them when they did not. Theirs is the knowledge of a
lawyer. In fact, they acted the part in preparing the documents. See Pioneer Title v. State Bar,
74 Nev. 186, 326 P.2d 408 (1958); cf. Humphrey v. Knobel, 78 Nev. 137, 369 P.2d 872
(1962), and Francis v. Eisenmayer, 340 P.2d 54, 58 (Cal.App. 1959).
Not only did the escrow instructions state that Title Insurance was to record all papers, the
normal exigencies of the situation called for them to do so. The act of recording is in their
line of businessa normal part of their duties, not an exception. Part of the expectancies of
ordinary laymen such as the Allens is that the escrow agent will record the necessary
documents. The instructions and conversations of Title Insurance gave no warning that they
would do otherwise. Bates v. Cottonwood Cove Corp., 84 Nev. 388, 441 P.2d 622 (1968).
See Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967).
2. If Title Insurance should have recorded the deed, it is still necessary for the Allens to
show that the statute of limitations was tolled for such a time after the date Title Insurance
failed to record the trust deed in 1957 that it had not run by the date this action was started on
December 30, 1968.
87 Nev. 261, 269 (1971) Allen v. Webb
[Headnotes 8, 9]
In the event the party relied upon in a fiduciary situation fails to fulfill his obligations, and
if it also fails to tell the other party of this failure, there is said to be fraudulent concealment
and constructive fraud, so the statute of limitations may be tolled. Amen v. Merced County
Title Company, 375 P.2d 33, 36 (Cal. 1962); Annot., 173 A.L.R. 576 (1948). Since this
contention is not contradicted by Title Insurance it will be assumed proper for the sake of this
discussion. In light of our conclusion in point one, supra, that Title Insurance was obligated to
record the trust deed, we hold that its failure to record and failure to advise the Allens of that
fact resulted in the tolling of the statute of limitations until the Allens discovered or should
have discovered their damage. For the sake of this opinion, we assume that the Allens had a
cause of action against Title Insurance for failure to record and failure to advise them of the
effect of this failure from the date of the impairment of their trust deed security on August 10,
1956. The question presented is thus whether the statute of limitations began running before
1968 because the Allens should have known of the Phillips-to-Yuma deed.
[Headnote 10]
The substance of Title Insurance's argument on this issue centers on its contention that, as
a matter of law, Allens had such notice of the failure to record in August 1956, and that they
were required to inquire further. Howard v. Howard, 69 Nev. 12, 239 P.2d 584 (1952). Upon
that further inquiry, it is urged they would have discovered the impairment of their trust deed
interest. But because this is an appeal from the granting of an NRCP 41(b) motion to dismiss,
if it is permissible to infer from the evidence that Allens did not have such notice as would
lead a reasonable person to inquire further, such an inference must be made. Bates v.
Cottonwood Cove Corp., supra.
A brief recapitulation of the facts may be helpful. In April 1956 the Phillips trust deed was
returned to the Allens without any notation on it that it had been recorded. At about this time
the Allens paid Title Insurance the escrow charges which included a $3.50 charge for
recording feemortgagestrust deed. There was no explanation on the statement for this
charge, though it was later explained by the Title Insurance officer as relating to a previously
unrecorded second deed of trust on the Allens' apartments. In August 1956 (after the
Phillips-to-Yuma deed had been recorded), the Allens noticed that their trust deed was not
stamped as having been recorded, so they inquired at the recorder's office.
87 Nev. 261, 270 (1971) Allen v. Webb
that their trust deed was not stamped as having been recorded, so they inquired at the
recorder's office. Upon being told that the trust deed had not been recorded, they had it
recorded. It is noteworthy that though the testimony in the record reveals that the Allens had
previous dealings in real estate, that testimony also reveals their lack of sophistication in
these matters. Hence, the conclusion of the dissent that the Allens apparently knew of the
need to protect their security by recording is disputable. They made no further inquiry into
the matter, but merely continued to receive Phillips' monthly payments until January 1957. At
that time he stopped making the payments. The Allens attempted unsuccessfully to collect
from Phillips through phone calls and letters. Thereafter, in early 1957, they contacted an
attorney and discussed the situation with him. No foreclosure proceedings or any other
proceedings were instituted and nothing further was done until 1968 when the Allens
recorded a default against Phillips.
[Headnotes 11, 12]
May it be said on these facts that the Allens acted in a reasonable manner in failing to
inquire further as to the status of their title, or must it be said as a matter of law that they had
constructive knowledge of the Phillips-to-Yuma deed in August 1956 or in early 1957
because they knew of certain facts which would have led a reasonable person to further
inquiry? Though the Phillips-to-Yuma deed was recorded, the mere fact of the record notice
does not provide sufficient basis for holding the Allens to have had notice unless they had
reason to check the real estate records. Annot., 137 A.L.R. 268 (1942); Note, 63 Harv.L.Rev.
1177, 1217 (1950). Ordinarily the constructive knowledge of recording statutes is held to
prospective purchasers of realty. It does not necessarily follow that people in the position of
the Allens are stuck with the same application. They were possessors of a trust deed thought
by them to have been recorded at the conclusion of their transaction. Theirs was a final
position, not preliminary. Moreover, while the Allens became aware that Phillips was
imprisoned, nothing more bearing on their transaction came to light at that time. When he
defaulted in payment they consulted an attorney, but foreclosure did not follow.
[Headnote 13]
Allens assert simply that a question of reasonableness of conduct is presented. We agree. It
cannot be said as a matter of law on these facts that the Allens should have known of the
Yuma deed and, hence, of the constructive fraud. Instead, further proceedings must be had.
Cf. Cardinal v. Masland, S7 Nev. 224
87 Nev. 261, 271 (1971) Allen v. Webb
further proceedings must be had. Cf. Cardinal v. Masland, 87 Nev. 224, 484 P.2d 1075
(1971).
3. Respondents also urged below as a basis for its motion to dismiss that the Allens failed
to plead their reasons for failing to assert this claim within the statutory period. It asserts the
general rule is that one seeking to avoid running of the statute of limitations because of
nondiscovery of facts showing a cause of action for constructive fraud or fraudulent
concealment must affirmatively plead facts showing his inability to discover such facts
sooner by exercise of reasonable diligence. Annot., 172 A.L.R. 265 (1948); Howard v.
Howard, 69 Nev. 12, 21, 239 P.2d 584 (1952).
Appellants reply to the assertion by urging that, first, such a pleading requirement no
longer exists because NRCP 8 places upon the defending party the burden of pleading the
affirmative defense of statute of limitations; and second, even if such a requirement prevails,
the complaint satisfies it.
[Headnote 14]
Because we conclude that the complaint does satisfy the requirement contended for by
Title Insurance, we do not address the contentions that the adoption of the NRCP abrogated
the rule that the pleader excuse his failure to assert the claim earlier. Here, the Webbs
described their fiduciary relationship with Title Insurance, described the acts and promises of
Title Insurance and stated that they believed their interests and rights to be secure and that
they had no reason to believe otherwise. To require more at the pleading stage would be akin
to requiring them to show a negativei.e., how notice was not brought to their attention. As
in Amen v. Merced County Title Company, 375 P.2d 33 (Cal. 1962), the pleading must be
held to be sufficient.
Respondent also makes certain arguments founded on the assumption that this is an action
for negligence, not for fraud. These arguments were not raised below. Moreover, from the
foregoing it is apparent that we regard this action as founded upon the constructive fraud of
Title Insurance. Amen v. Merced County Title Company, supra.
Judgment in principal action affirmed; judgment in cross-action reversed; remanded for
further proceedings consistent with this opinion.
Mowbray, J., concurs.
I agree that it cannot be said, from the record before us, that the Allens should have
known of the Yuma deed.
87 Nev. 261, 272 (1971) Allen v. Webb
the Allens should have known of the Yuma deed. Accordingly, I concur in the view that
further proceedings must be had with regard to the Allens' cross-claim.
However, I am inclined to believe that if a full trial establishes no more than the record
now before us, insofar as notice to the Allens is concerned, then the Allens will be entitled to
relief against Title Insurance and Trust Company as a matter of law. I trust that our holding
will not be interpreted as determining this issue.
Thompson, J., dissenting from the reversal of the judgment below dismissing the
cross-claim:
The Allens sought damages from Title Insurance for its failure to record their deed of trust.
The district court ruled that their claim was barred by limitations. NRS 11.190(3). This ruling
was correct. Their claim had to be presented within three years of their discovery of facts
constituting the fraud or mistake, or run the risk of defeat if limitations was raised in bar.
Title Insurance raised that defense.
The Allens discovered the failure to record in August 1956, and perhaps as early as April
of that year when they received their trust deed in the mail and without the recording data on
its face. In any event, on August 29, 1956 the Allens recorded that document. They did this
upon their own motivation and apparently were aware of the need for recordation to protect
their rights as against innocent third persons. Meanwhile, on August 10, 1956, Phillips
conveyed the property to Yuma, a bona fide purchaser. That conveyance was recorded, and
the Allens were charged with constructive notice thereof. NRS 111.320; Allison Steel
Manufacturing Co. v. Bentonite Inc., 86 Nev. 494, 471 P.2d 666 (1970); State v. Langan, 36
Nev. 577, 137 P. 517 (1913). Actual knowledge of the mistake together with constructive
knowledge of the intervening conveyance and the possible damage to flow therefrom might,
without more, be deemed by some courts to start the running of the limitation period [Strong
v. Clark, 352 P.2d 183 (Wash. 1960); cases collected Annot. 137 A.L.R. 268] and thus bar
any claim for relief asserted by the Allens after August 10, 1959. The impact of the
constructive notice provisions of our recording statute upon the running of a statute of
limitations as distinguished from a problem of title need not be here decided since it is
otherwise clear that the Allens possessed knowledge of facts that would cause a reasonable
person to inquire further. Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965); Howard v.
Howard, 69 Nev. 12, 239 P.2d 584 {1952).
87 Nev. 261, 273 (1971) Allen v. Webb
(1952). Had further inquiry been made the fraudulent intervening conveyance would have
been discovered.
The Allens had participated in several prior property transactions. This was not their
maiden voyage. They apparently knew of the need to protect their security by recording their
trust deed and did so on August 29, 1956. Payments upon the note which the trust deed
secured stopped in February and their debtor, Phillips, disappeared and could not be found.
This was a warning of danger. Their concern was evident for they consulted a lawyer. The
lawyer's advice is not revealed. All of these circumstances compel the conclusion that the
Allens' claim for damages from Title Insurance, asserted more than 12 years after they learned
of the mistake and at least 11 years after they should have known of the Phillips-Yuma
conveyance, is barred by limitations.
I concur with that part of the majority opinion where they concluded that the judgment in
the principal action should be affirmed. I dissent from that part of the majority opinion that
reverses the judgment in the cross-action.
I agree with Thompson, J., in his dissent, where he concludes that the Allen's claim for
damages from Title Insurance is barred by the statute of limitations. However, I believe that
their claim is barred because they had constructive notice of the conveyance from Phillips to
Yuma which was recorded before their deed of trust.
Constructive knowledge of the intervening conveyance was sufficient to apprise the Allens
of their precarious position brought about by the title company's failure to record their deed of
trust.
Our recording statute, NRS 111.320, is extremely explicit in providing that Every such
conveyance or instrument of writing, acknowledged or proved and certified, and recorded in
the manner prescribed in this chapter, shall, from the time of filing the same with the recorder
for record, impart notice to all persons of the contents thereof; . . . (Emphasis added.) The
Allens are among those covered by the statute. As soon as the deed from Phillips to Yuma
was recorded the statute of limitations began to run against them. NRS 11.190(3)(d).
In Strong v. Clark, 352 P.2d 183 (Wash. 1960), that court held: When an instrument
involving real property is properly recorded it becomes notice to all the world of its contents.
(Citations omitted.) When the facts upon which the fraud is predicated are contained in a
written instrument which is placed on the public record, there is constructive notice of its
contents, and the statute of limitations begins to run at the date of the recording of the
instrument."
87 Nev. 261, 274 (1971) Allen v. Webb
on the public record, there is constructive notice of its contents, and the statute of limitations
begins to run at the date of the recording of the instrument. See cases collected in Annot.
137 A.L.R. 268.
The judgments of the district court should be affirmed in their entirety.
____________
87 Nev. 274, 274 (1971) Porter v. Sheriff
EDDIE PORTER, Appellant, v. SHERIFF, CLARK
No. 6487
June 1, 1971 485 P.2d 676
The district court denied writ and petitioner appealed. The Supreme Court held that sale
of narcotics was complete within contemplation of statute upon receipt of money therefor,
and actual delivery or transfer of possession of narcotics substance was not required.
Affirmed.
Chief Deputy of Appeals, Clark County, for Respondent.
Poisons.
Sale of narcotics was complete within contemplation of statute upon receipt of money therefor, and
actual delivery or transfer of possession of narcotics substance was not required. NRS 453.030.
OPINION
Per Curiam:
The single issue presented by this appeal is whether or not the state is required to prove an
actual delivery or transfer of possession of a narcotic substance, in order to prove a sale of
narcotics under NRS 453.030.
1
The appellant was charged by criminal complaint with the
sale of narcotics in violation of NRS 453.030.
____________________

1
NRS 453.030: Acts prohibited. It shall be unlawful for any person to manufacture, possess, have under his
control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in NRS
453.010 to 453.240, inclusive.
87 Nev. 274, 275 (1971) Porter v. Sheriff
The appellant was charged by criminal complaint with the sale of narcotics in violation of
NRS 453.030. The testimony adduced at the preliminary examination revealed that the
appellant was handed a sum of money in payment for an amount of narcotics; that the
appellant left the area where the transaction was taking place, returned, began to arrange
injection equipment on a table, and laid some capsules containing heroin on the table; and
was thereupon placed under arrest by police officers before any injection or other actual
delivery of the substance occurred.
A writ of habeas corpus was sought in the district court on the ground that the transaction
did not constitute a sale of narcotics under the statute because the prosecution failed to
show an actual delivery or transfer of possession of the narcotics. The writ was denied and
this appeal followed.
The legislature has defined a sale of narcotics in NRS 453.020(16) to include [B]arter,
exchange, or gift, or offer therefor, . . . It is clear that the intent of the legislature was not to
require an actual delivery or transfer of possession of narcotics in order to violate the
provisions of NRS 453.030. The statute is explicit. Here all that is required to constitute a
sale of narcotics is an offer to exchange the substance. See State v. Espinosa, 421 P.2d 322
(Ariz. 1966); State v. Beemer, 51 Nev. 192, 272 P. 656 (1928). Cf. Glosen v. Sheriff, 85 Nev.
166, 451 P.2d 843 (1969); Watkins v. Sheriff, 87 Nev. 233, 484 P.2d 1086 (1971).
The legislative definition is clear and unambiguous and not susceptible of interpretation.
Affirmed.
____________
87 Nev. 275, 275 (1971) State Farm Mut. Auto. Ins. Co. v. Pradere
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v.
KATHRYN M. PRADERE, Individually and as the Widow of RUSSELL M.
PRADERE, Deceased, Respondent.
No. 6396
June 2, 1971 485 P.2d 686
Appeal from judgment of the First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Action to recover under accidental death policy. The district court rendered judgment for
plaintiff, and defendant appealed. The Supreme Court, Mowbray, J., held that accidental
death policy excluding coverage for injury sustained while engaged in duties incident to
operation, loading, or unloading of, or as assistant on, commercial vehicle did not exclude
coverage for death in accident occurring while insured was riding in employer's truck as
passenger to his place of employment.
in duties incident to operation, loading, or unloading of, or as assistant on, commercial
vehicle did not exclude coverage for death in accident occurring while insured was riding in
employer's truck as passenger to his place of employment.
Affirmed.
Vargas, Bartlett & Dixon and Frederic R. Starich, of Reno, for Appellant.
Laxalt, Berry & Allison, of Carson City, for Respondent.
Insurance.
Accidental death policy excluding coverage for injury sustained while engaged in duties incident to
operation, loading, or unloading of, or as assistant on, commercial vehicle did not exclude coverage for
death in accident occurring while insured was riding in employer's truck as passenger to his place of
employment.
OPINION
Kathryn M. Pradere, the widow of Russell M. Pradere, commenced this action in the
district court to recover $10,000 under an insurance policy that the appellant, State Farm
Mutual Automobile Insurance Company, had issued to Russell, who had named Kathryn the
beneficiary thereunder. Russell, who had been employed by the Sierra Pacific Power
Company, met an accidental death while riding to his place of employment, as a passenger in
one of the company's trucks. State Farm had refused to honor the policy and pay Kathryn the
benefits due her, on the ground that recovery was barred by an exclusionary clause of the
policy. The district judge ruled in favor of Kathryn and awarded her a $10,000 judgment
against State Farm, which judgment we affirm on this appeal.
1. The Facts.
Russell purchased in February 1965 a $10,000 accidental death insurance policy from
State Farm. Kathryn was the named beneficiary. The coverage provision of the policy read:
COVERAGE S
Division 1Death Indemnity. To pay the principal sum stated as applicable in the
exceptions of the declarations in event of the death of each insured which shall result directly
and independently of all other causes from bodily injury caused by accident and sustained by
the insured while occupying or through being struck by an automobile, provided the death
shall occur within 90 days from the date of such accident."
through being struck by an automobile, provided the death shall occur within 90 days from
the date of such accident.
On October 2, 1968 at about 10:00 p.m., Russell, who was riding in a company truck as a
passenger to his place of employment, was killed when the truck collided with a Southern
Pacific train.
Kathryn presented her claim to State Farm, as provided in the insurance policy, but State
Farm elected not to honor the claim, on the ground that recovery was barred under the
exclusionary clause of the policy, which provided:
Insuring Agreement IV does not apply:
(a) to bodily injury sustained in the course of his occupation by any person while engaged
(1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public
or livery conveyance, commercial automobile, ambulance, fire truck, police car or other
emergency vehicle. . . .
State Farm's principal argument on this appeal is that Russell was riding as a passenger in
the company's commercial truck and therefore the exclusionary provision is applicable. We
do not agree. Without deciding whether or not the involved vehicle was a commercial
automobile, we conclude that riding in a commercial automobile is not, alone, sufficient to
apply the exclusionary rule. More is needed. The exclusionary clause itself reads, while
engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on,
the commercial automobile. Russell was engaged in none of these duties. As the court said in
St. Paul Fire & Marine Ins. Co. v. Kell, 328 S.W.2d 510, 512 (Ark. 1959): It is undisputed
that at the time this accident occurred appellee was using the vehicle for transportation to the
job site the same as he would a private automobile and was not using the truck to perform any
duties incident to his occupation. (In Kell, the injured employee was the driver of the
vehicle.) And in Brinkmann v. Liberty Mut. Fire Ins. Co., 403 P.2d 136, 139 (Cal. 1965), the
court ruled:
. . . The exclusionary clause requires not only that the insured be acting in the course of
his occupation, but also that he be engaged in duties incident to the operation of a commercial
automobile at the time of the accident. Since the trial court was justified in finding that
Brinkmann was not engaged in the performance of duties when he was killed, a holding that
he was in the course of his employment because he was accepting transportation benefits
provided by his employer as an incident to his employment would not suffice to make the
exclusion applicable. . . . (Emphasis in original.)
Russell's death did not occur while he was engaged (1) in duties incident to the operation,
loading or unloading of, or as an assistant on, a commercial automobile. Therefore, the
judgment of the lower court ordering State Farm to honor the insurance policy and pay the
beneficiary, Kathryn, the $10,000 sum due thereunder is affirmed. Respondent may have her
costs.
____________
87 Nev. 278, 278 (1971) In re Robarts
In the Matter of the Application of GERALD
ROBARTS for a Writ of Habeas Corpus.
No. 6550
June 3, 1971 485 P.2d 685
Original application for writ of habeas corpus.
Habeas corpus proceeding attacking indictment. The Supreme Court held that alleged fact
that in selecting grand jurors from list of registered voters, district judge and county
commissioners for the most part named only individuals personally known to them, did not
violate constitutional rights of accused in absence of showing of what class accused claimed
to belong or whether that class was represented on grand jury.
Petition denied.
Robert G. Legakes, Public Defender, Clark County, for Petitioner.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy District Attorney for Appeals, Clark County, for State of
Nevada.
1. Grand Jury.
Alleged fact that in selecting grand jurors from list of registered voters, district judge and county
commissioners for the most part named only individuals personally known to them, did not violate
constitutional rights of accused in absence of showing of what class accused claimed to belong or whether
that class was represented on grand jury. NRS 6.110.
2. Grand Jury.
Alleged violation of statute prohibiting placing name on grand jury list at request or solicitation of any
person, in that three persons named to grand jury had evinced a desire to serve, was a
mere irregularity and did not render the grand jury a nullity.
87 Nev. 278, 279 (1971) In re Robarts
three persons named to grand jury had evinced a desire to serve, was a mere irregularity and did not render
the grand jury a nullity. NRS 199.060.
OPINION
Per Curiam:
In this original proceeding in habeas corpus, petitioner contends the Grand Jury that
indicted him was not legally constituted because: (a) the district judge and county
commissioners who selected the grand jurors, in making their choices from the list of
registered voters, for the most part named only individuals personally known to them, without
seeking to uncover the source of competent jury prospects from all significantly identifiable
elements of the community; and (b) three persons named to the Grand Jury had evinced a
desire to serve, prior to being asked if they were willing to do so.
[Headnote 1]
NRS 6.110 provides that, in choosing prospective grand jurors, a judge of the district and
the county commissioners shall take turns making selections from the official list of
registered voters.
1
While petitioner acknowledges that this statute is not unconstitutional on
its face, he contends that it is capable of unconstitutional application, and that an
unconstitutional discrimination necessarily occurs if the district judge and commissioners
select only grand jurors with whom they are personally acquainted.
____________________

1
NRS 6.110 provides, in material part, as follows: 1. . . . In counties where the board of county
commissioners, pursuant to the provisions of NRS 244.013, consists of five members and there is more than one
district judge in the judicial district containing the county, after required notice has been given by the district
judge, selection of 36 persons as proposed grand jurors shall be made as follows. The district judges of the
judicial district shall designate one of their number who shall meet with three or more of the members of the
board of county commissioners at a regular meeting of the board of county commissioners which shall be open
to the public. The district judge shall first make a selection of one name from the county clerk's register of
registered voters. In turn each member of the board of county commissioners present at the meeting shall make a
selection of one name from the register, and such selection procedure shall continue until 36 persons are selected
as proposed grand jurors. A list of the names so selected as grand jurors shall be made out and certified by the
officers making the selection and shall be filed in the clerk's office, and the clerk shall immediately issue a
venire, directed to the sheriff of the county, commanding him to summon the persons so drawn as grand jurors to
attend in court at such time as the district judge may have directed.
2. The sheriff shall summon such grand jurors, and out of the number so summoned the court shall select
17 persons to constitute the grand jury and 12 persons to act as alternate grand jurors. . . .
87 Nev. 278, 280 (1971) In re Robarts
discrimination necessarily occurs if the district judge and commissioners select only grand
jurors with whom they are personally acquainted. In support of this proposition, petitioner has
cited a number of authorities, some containing general language that might arguably be taken
as support for his view, but none that we consider similar to the case at bar either on facts or
principle.
2
We do not think persons who are unacquainted with the selection officials
constitute a distinct class, against whom discrimination can occur; we have not been told of
any other group or class, against whom discrimination has occurred; indeed, we do not know
to what class petitioner claims to belong, or whether that class was represented on the
Grand Jury. Thus, we see no basis for the contention that petitioner's constitutional rights
have been violated.
[Headnote 2]
NRS 199.060 proclaims it a misdemeanor to place on a Grand Jury List any name at the
request or solicitation, direct or indirect, of any person. That statute does not, however,
suggest that a violation of its provisions will render the Grand Jury a nullity, and again, we
have been cited to no direct precedent supporting such a construction of our law. Respondent
contends the statute was not violated, because independent judgment was exercised in the
selection of those persons who had volunteered; however, assuming the statute was violated,
we think the violation was a mere irregularity, which is not shown to have been prejudicial to
the accused. Cf. State v. Johnny, 29 Nev. 203, 87 P. 3 (1906).
The petition is denied.
____________________

2
The cases cited by the petitioner are: Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953);
Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct.
457, 86 L.Ed. 680 (1942); Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043
(1947); Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Chance v. United States,
322 F.2d 201 (5th Cir. 1963); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); and Brooks v.
Beto, 366 F.2d 1 (5th Cir. 1966).
____________
87 Nev. 281, 281 (1971) Traynor v. Carter
BUD TRAYNOR, Appellant, v. JACK CARTER,
Respondent.
No. 6426
June 10, 1971 485 P.2d 966
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Action by bailor against bailee. The district court entered judgment in favor of bailor, and
bailee appealed. The Supreme Court held that although evidence was in conflict with respect
to terms of bailment and its duration, substantial evidence supported finding that bailee was
negligent in failing to protect bailor's automobile from damage by freezing while it was in
bailee's custody.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Gray, Brooke and Wells, of Reno, for Respondent.
Bailment.
Although evidence was in conflict with respect to terms of bailment and its duration, substantial
evidence supported finding that bailee was negligent in failing to protect bailor's automobile from
damage by freezing while it was in bailee's custody.
OPINION
Per Curiam:
The district court found that the bailee was negligent in failing to protect the bailor's
automobile from damage by freezing while it was in the bailee's custody and awarded the
bailor damages therefor.
1
Although the evidence was in conflict with respect to the terms of
the bailment and its duration, substantial evidence supports the finding made and this court
may not tamper with it.
Affirmed.
____________________

1
The general duty of care imposed upon the bailee is expressed in Alamo Airways, Inc. v. Benum, 78 Nev.
384, 374 P.2d 684 (1962); Gaudin Motor Co. v. Wodarek, 76 Nev. 415, 356 P.2d 638 (1960); Manhattan Ins.
Co. v. Central Garage, 54 Nev. 147, 9 P.2d 682 (1932); Donlan v. Clark, 23 Nev. 203, 45 P. 1 (1896).
____________
87 Nev. 282, 282 (1971) Hoffmeister Cabinets of Nev. v. Bivins
HOFFMEISTER CABINETS OF NEVADA, INC., a Nevada Corporation, Appellant, v.
DONALD C. BIVINS, dba BIVINS CONSTRUCTION COMPANY, Respondent.
No. 6413
June 21, 1971 486 P.2d 57
Appeal from an order of the Eighth Judicial District Court, Clark County, granting
summary judgment; Thomas J. O'Donnell, Judge.
Suit to recover for materials supplied in connection with United States Air Force housing
project on which defendant was general contractor. The district court granted summary
judgment dismissing the action, and plaintiff appealed. The Supreme Court, Zenoff, C. J.,
held that Miller Act does not prevent state courts from adjudicating suits between general
contractors and subcontractors and that issue of fact existed precluding summary judgment
dismissing action as to defendant general contractor.
Cromer and Barker, of Las Vegas, for Appellant.
Leavitt, Edwards & Gladstone, of Las Vegas, for Respondent.
1. Courts.
Miller Act does not prevent state courts from adjudicating suits between general contractors and
subcontractors; thus, count of action to recover for materials supplied in connection with United States Air
Force housing project against defendant general contractor as the principal preserved state court
jurisdiction as to defendant although not as to surety companies. Miller Act, 1, 2, 2(b); 40 U.S.C.A.
270a, 270b, 270b(b).
2. Judgment.
In suit to recover for materials supplied in connection with United States Air Force housing project on
which defendant was general contractor, issue of fact existed as to legitimacy of defendant's efforts to hide
behind corporate veil and his personal past dealings with plaintiff wherein there was no reference to the
corporation, precluding summary judgment for defendant.
3. Judgment.
Burden of establishing nonexistence of any genuine issue of fact is upon party moving for summary
judgment, and all doubts are resolved against him and his supporting affidavits and depositions, if any,
are carefully scrutinized by court even as to inferences.
depositions, if any, are carefully scrutinized by court even as to inferences.
OPINION
Hoffmeister Cabinets of Nevada, Inc., sued to recover $4,800 from Donald C. Bivins, dba
Bivins Construction Company, W R Corporation, and certain surety and bonding companies.
The identity of the latter is not essential because they are not parties to the appeal. The
lawsuit concerned payment for materials supplied in connection with the United States Air
Force housing project on which Bivins was the general contractor. Bivins was sued for the
amount in a count separate from others seeking payment from the surety companies.
The W R Corporation was claimed by Bivins to have been the true supplier of the
materials in the sense that that corporation in fact owed the money, not he.
The issue on appeal is framed by the trial court granting Bivins and the surety companies
an order for summary judgment dismissing the action against them. The motion for summary
judgment is confusing in that it was based upon Bivins' assertion that the Miller Act (40
U.S.C.A. 270a, b) deprives the state court of jurisdiction of any contract involving a federal
project but the order of dismissal stated that it was being granted because of the absence of a
factual issue.
1. The pertinent provisions of the Miller Act provide:
(b) Every suit instituted under this section shall be brought in the name of the United
States for the use of the person suing, in the United States District Court for any district in
which the contract was to be performed and executed and not elsewhere, irrespective of the
amount in controversy in such suit, but no such suit shall be commenced after the expiration
of one year after the day on which the last of the labor was performed or material was
supplied by him. 40 U.S.C.A. 270b(b).
[Headnote 1]
We believe that the trial court erred. The count separately stated against Bivins removes
the jurisdictional question, because the action against him as the principal preserves state
court jurisdiction as to him, although not as to the surety companies. The Miller Act does not
prevent state courts from adjudicating suits between general and subcontractors.
adjudicating suits between general and subcontractors. Voelz v. Milgram Contracting Co., 75
N.W.2d 305 (Wis. 1956); United States v. Peerless Insurance Company, 374 F.2d 942 (4th
Cir. 1967). Therefore, the order dismissing Bivins was improper.
[Headnote 2]
2. A different question, of course, is presented if the court granted the summary motion
because of the absence of a genuine dispute of facts as is asserted by Bivins. But, if so, the
court was in error there also. Bivins' deposition provides ample factual dispute. The
legitimacy of his efforts to hide behind the corporate veil of W R Corporation, as well as his
personal past dealings with Hoffmeister wherein there was no reference to the W R
Corporation, allow Hoffmeister to claim to have relied upon him as an individual and create
sufficient dispute for a full scale trial.
[Headnote 3]
The burden of establishing the nonexistence of any genuine issue of fact is upon the party
moving for summary judgment.
All doubts are resolved against him and his supporting affidavits and depositions, if any, are
carefully scrutinized by the court even as to inferences. Hidden Wells Ranch v. Strip Realty,
83 Nev. 143, 145, 425 P.2d 599 (1967); Catrone v. 105 Casino Corp., 82 Nev. 166, 169, 414
P.2d 106 (1965); Robbins v. Milner Enterprises, Inc., 278 F.2d 492 (5th Cir. 1960); Walling
v. Fairmont Creamery Co., 139 F.2d 318, 322 (8th Cir. 1943); see also 6 J. Moore, Moore's
Federal Practice, 56.15[3] (2d ed. 1966).
Reversed and remanded for further proceedings consistent with this opinion.
____________
87 Nev. 285, 285 (1971) Cannon v. Taylor
IVAN CANNON, DARYL B. GARNER, and FORREST PURDY, Appellants, v. WILLIAM
L. TAYLOR, C. R. CLELAND, and JOHN MYERS, Respondents.
No. 6367
June 22, 1971 436 P.2d 493
Appeal from order granting defendant-respondents' motion for summary judgment and from
order denying plaintiff-appellants' motion for summary judgment. Eighth Judicial District
Court, Clark County; William R. Morse, Judge.
Class action by taxpayers seeking repayment to city of all sums paid mayor and
councilmen in excess of salary as it existed before salary increases established by city council.
The district court granted defendants' motion for summary judgment, and plaintiffs appealed.
The Supreme Court, Zenoff, C. J., held that under 1967 statutory amendment, which
pertained to salary level of North Las Vegas officials and provided that compensation of
mayor, councilmen and judge of municipal court shall be fixed by city council and not be
diminished or increased as to any such officer during time for which he has been elected or
appointed, effective date of salary increases fixed by city council shortly after amendment
took effect could be no sooner than the first day of succeeding term for such office.
Reversed, with direction to enter judgment in accordance with opinion.
[See opinion on Rehearing filed February 23, 1972]
Gunderson and Batjer, JJ., dissented.
L. Earl Hawley and Edward G. Marshall, of Las Vegas, for Appellants.
Carl E. Lovell, Jr., City Attorney of North Las Vegas, for Respondents.
1. Statutes.
Where statute was ambiguous, it could only be construed in line with what reason and public policy
would indicate the legislature intended.
2. Officers.
Changes in compensation during term of public office are not favored. Const. art. 4, 28, art. 15, 9;
NRS 266.450.
If a statute delegating authority to fix compensation for public officers is ambiguous, power to effect
in-term changes will be denied.
4. Municipal Corporations.
Under 1967 statutory amendment, which pertained to salary level of North Las Vegas officials and
provided that compensation of mayor, councilmen and judge of municipal court shall be fixed by city
council and not be diminished or increased as to any such officer during time for which he has been elected
or appointed, effective date of salary increases fixed by city council shortly after amendment took effect
could be no sooner than the first day of succeeding term for such office. Stats. Nev. 1953, ch. 283, as
amended.
OPINION
This appeal involves a dispute over salary levels which North Las Vegas officials
established for themselves in April 1967. The officials in question, Mayor Taylor and
Councilmen Cleland and Myers, were elected to terms which were to run from May 11, 1965
to May 14, 1969. At the time of their election the compensation was set by the North Las
Vegas Charter, Ch. 283 Statutes of Nevada 1953, as amended by Ch. 447 Statutes of Nevada
1963. The mayor's salary was established as $5,400 per year and the councilmen's salary as
$3,600 per year. On April 15, 1967 the legislature amended these statutes so as to allow the
salary levels to be determined by the city council.
1

Subsequently, on April 29, 1967 the North Las Vegas city council met and established
salary levels of $750 per month ($9,000 per year) for the mayor and $500 per month ($6,000
per year) for the councilmen. These salaries were made effective retroactively from April 15,
1967.
This class action suit was instituted by the appellants, as taxpayers, on the day before the
expiration of the respondents' term of office. The relief sought was repayment to the city of
all sums paid these three officials in excess of the salary as it existed before the April 15,
1967 amendment of Ch. 283 Statutes of Nevada 1953. The basis for the relief sought was that
the action of the council in establishing the new salary levels effectively amounted to the
council members granting themselves a raise while in office.
____________________

1
Ch. 400 Statutes of Nevada 1967:
Sec. 2. . . . .
The compensation of the mayor, councilmen and judge of the municipal court shall:
1. Be fixed by the city council; and
2. Not be diminished or increased as to any such officer during the term for which he has been elected or
appointed.
Sec. 3. This act shall become effective upon passage and approval.
levels effectively amounted to the council members granting themselves a raise while in
office. As such, appellants urged, this action was contrary to the mandate of the legislature.
The appellants and respondents agreed that there were no disputed fact issues to be tried
and both moved for summary judgment. The lower court granted the officials' motion and
denied that of the taxpayer-plaintiffs. The court thus in effect sustained the capacity of the
officials to establish their own compensation at levels of their own choosing. This appeal
follows.
1. Respondents argue that Ch. 400 Statutes of Nevada 1967 unambiguously vested in the
North Las Vegas city council the blank-check power to establish its own and the mayor's
compensation, effective upon passage of its own action. This assertion is based upon the fact
that Ch. 400 states: The compensation shall: (1) Be fixed by the city council . . . and Sec.
3. This act shall become effective upon passage and approval. (Emphasis added.)
Respondents interpret the quoted portion as indicating that the former compensation
authorization was repealed and mandating that if any compensation is to be paid thenceforth,
it shall be by city council authorization.
We cannot agree that this statute unambiguously gives the power argued for. While on the
one hand it says that the council shall fix the compensation, on the other hand the statute says
the council may not increase an official's compensation during the term for which he has been
elected. Thus, it seems to give immediate power to set any compensation level yet it also
evidences the desire to prevent in-term raises.
Respondents' position rests upon the assumption that in amending the previous
compensation scheme out of the charter the legislature thus repealed any authorization of
compensation (cf. City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317 (1917)), so that as of
April 15, 1967 no compensation was payable to these officials. No compensation being
authorized, respondents urge, there was no compensation to increase, so the proscription of
Ch. 400 was not violated.
We need only note in considering this argument that there is considerable respectable
authority for the proposition that the fixing of a salary where there was formerly none is,
indeed, a proscribed increase. C. Rhyne, Municipal Law, 8-21 (1957); Gay v. City of
Glendale, 16 P.2d 971 (Ariz. 1932); Murphy v. Page, 136 N.E. 70 (Mass. 1922); State v.
Ritzville, 132, P.2d 737 (Wash. 1942). See also Annot., 144 A.L.R. 685 (1943). Contra, 4 E.
McQuillin, The Law of Municipal Corporations, 12.19S {196S); Gwynn v. McKinley, 15S
P.
Corporations, 12.198 (1968); Gwynn v. McKinley, 158 P. 1059, 1063 (Cal.App. 1916); and
State v. M'Dowell, 27 N.W. 433 (Neb. 1886). Since there has not been previous construction
of the term increase by this court, and since it is not defined by the legislature we cannot
know for certain which line of authority the legislature meant to follow. Therefore, this
statute must at least be said to be ambiguous with respect to whether, assuming the former
compensation scheme was impliedly repealed and no compensation was payable after April
15, 1967, the later fixing of compensation was an increase.
Another ambiguity arises under the respondents' assumption that because of the April 15,
1967 effective date of this statute no compensation was payable thereafter until fixed by the
council. That ambiguity is whether the legislature intended the council to be empowered to
establish and pay compensation from April 15, 1967 no matter when it met. The legislature
must have foreseen that the council would not meet immediately upon passage and approval
of this act, yet it failed to empower the council to make the fixing of its salary retroactive to
April 15, 1967. Though in certain situations retroactive payments of compensation may be
allowable (City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d 525 (1969)), in others,
such as where a body is empowered to establish its own compensation, it has been said such
power will be withheld in the absence of a specific grant. Pugnier v. Ramharter, 81 N.W.2d
38 (Wis. 1957).
[Headnote 1]
2. In light of these ambiguities it can only be said that the statute on its face does not
clearly spell out the intent of the legislatureif, indeed, the problems described here were
even foreseen by this statute's draftsmen. Did the legislature intend that no compensation be
paid these officials during the remainder of this term; that the previous compensation
continue; or that a new compensation level, of the officials' own choosing, be paid? The
statute being ambiguous, we may only construe it in line with what reason and public policy
would indicate the legislature intended.
Clearly it would be unreasonable to conclude that the legislature intended that
compensation was to cease April 15, 1967 and possibly resume at the beginning of the next
term for these offices in 1969.
[Headnotes 2, 3]
It would also be unreasonable to conclude that the legislature intended that the council
have blank-check authority to establish its own compensation, effective immediately. First,
changes in compensation during terms of office are not favored. Cf. Nevada Constitution Art.
4 28 and Art. 15 9; and NRS 266.450. If a statute delegating authority to fix compensation
is ambiguous, power to effect in-term changes will be denied. Busch v. Turner, 161 P.2d 456
(Cal. 1945); Regan v. San Mateo County, 97 P.2d 231 (Cal. 1939); see also Riley v. Carter,
25 P.2d 666, 669-671 (Okla. 1933). Second, and more importantly here, To permit a public
officer without restriction to fix his own compensation is to give him an extraordinary power.
. . . [B]efore charter provisions are given this effect the intent to do so should be expressed in
language the meaning of which is clear and unmistakable. Meeks v. Fink, 89 So. 543, 544
(Fla. 1921). See also 4 E. McQuillin op cit. 12.178 and McFarland v. Gordon, 41 A. 507
(Vt. 1898).
3. It thus seems most likely that the legislature did not intend to give so broad a power as
is contended for. Nor, however, did it intend to require these officials to serve without the
compensation they had received earlier in their terms and which those serving later terms
could receive.
[Headnote 4]
Rather, we construe this statute as merely evidencing the legislature's intent to divest itself
of the task of establishing compensation levels for officials succeeding those in question. The
delegation of this task is what became effective April 15, 1967. The specification of
compensation embodied in the North Las Vegas charter was not intended to be abrogated
until the effective date of valid establishments of compensation by the council. Under this
statute, such date could be no sooner than the first day of the succeeding terms for these
offices.
Any compensation received by the respondents in excess of the compensation schedule
established by the city charter as amended in Ch. 447 Statutes of Nevada 1963 was thus
improperly paid, and must be repaid to the city.
Reversed, with direction to enter judgment in accordance with this opinion.
Mowbray, J., and Compton, D. J., concur.
Gunderson J., dissenting:
This court is called to interpret Sections 2 and 3 of Chapter 400, 1967 Statutes of Nevada,
approved April 15, 1967, by which our Legislature amended the 1953 Act that incorporated
North Las Vegas.
1
If allowed their literal effect, these provisions, as of April 15 1967: (1)
expressly repealed the salary structure theretofore established by the Legislature, by deleting
it from the law; (2) mandated the city council (including respondents) to establish a new
salary structure; and (3) provided that the compensation so fixed should not be diminished or
increased as to any such officer during his term.
Appellants urge us to ignore what appears first in the statute, i.e. the provision for
immediate repeal of the existing salary structure: to declare instead that the existing salary
structure governed for more than two years after its express repeal.
Appellants urge us to limit the power granted by the provision that appears next in the
statute, directing the city council to fix the compensation of the mayor, councilmen and
judge of the municipal court": to say instead that the council could lawfully fix enlarged
salaries only for their successors in office.
____________________

1
Sec.2. Section 11 of chapter II of the above-entitled act, being chapter 283, Statutes of Nevada 1953, as
last amended by chapter 447, Statutes of Nevada 1963, at page 1213, is hereby amended to read as follows:
Section 11. Mayor, [and] Councilmen [,] and Judge of Municipal Court, Salary of.
[1. Until the election held on the first Tuesday after the first Monday in May 1965, the mayor shall receive
for remuneration for his services the sum of $3,000 per year, payable in equal monthly installments. Thereafter,
the mayor shall receive for remuneration for his services the sum of $5,400 per year, payable in equal monthly
installments.
2. Until the election held on the first Tuesday after the first Monday in May 1963, the two councilmen who
were elected at the election held in May 1959 shall receive remuneration for their services, as such, the sum of
$1,800 per year, payable in equal monthly installments. Thereafter they or their successors in office shall receive
remuneration for their services, as such, the sum of $3,600 per year, payable in equal monthly installments.
3. Until the election held on the first Tuesday after the first Monday in May 1965, the two councilmen who
were elected at the election held in May 1961 shall receive remuneration for their services, as such, the sum of
$1,800 per year, payable in equal monthly installments. Thereafter they or their successors in office shall receive
remuneration for their services, as such, the sum of $3,600 per year, payable in equal monthly installments.] The
compensation of the mayor, councilmen and judge or the municipal court shall:
1. Be fixed by the city council; and
2. Not be diminished or increased as to any such officer during the term for which he has been elected or
appointed.
Sec. 3. This act shall become effective upon passage and approval.
the municipal court: to say instead that the council could lawfully fix enlarged salaries only
for their successors in office. Appellants urge us, in sum, to exalt to prime position in the
statute that which appears last, i.e. the provision that compensation of city officials is not to
be diminished or increased as to any such officer during the term for which he has been
elected or appointed: to denegrate all in Chapter 400 that precedes that provision. In my
view, we may not properly do so.
Although the central issue in this appeal is whether Chapter 400 repealed the existing
salary structure, the majority opinion does not quote, or discuss, those portions of Chapter
400 that most directly bear on the issue. Only if one disregards the statute's express repeal and
deletion of the existing salary provisions, is one able to say, as does the majority opinion:
Respondents' position rests upon the assumption that in amending the previous
compensation scheme out of the charter the legislature thus repealed any authorization of
compensation (cf. City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317 (1917)), so that as of
April 15, 1967 no compensation was payable to these officials. (Emphasis added.) I submit
respondents' position rests not upon an assumption, but upon a literal reading of the statute.
Furthermore, even if Chapter 400 did not expressly repeal, the existing salary structure,
City of Reno v. Stoddard, referred to in the majority opinion, would nonetheless support the
position attributed to respondents. Citing a plethora of authority, in the Stoddard case this
court said: It is, no doubt, a well-settled rule in the construction of statutes, that where a
statute provides (as in this case) that a certain former statute is hereby amended so as to read
as follows,' any provision of such former statute which is not found in the new statute is
repealed. There is a negative necessarily implied that such eliminated portion shall no longer
be in force. 40 Nev., at 543. The court went on to note that this rule of construction must be
applied, however improvident the legislation may have been, saying further: The motives
of the legislature are not subject to judicial inquiry. Its will is supreme to that of the judgment
of courts as to the wisdom or policy of its legislation. 40 Nev., at 544. From its earliest
decisions, this court has recognized the verity of this view. The rule is cardinal and universal
that if the law is plain and unambiguous, there is no room for construction or interpretation.
Brown v. Davis, 1 Nev. 409, 413 (1865).
Thus, in State v. McNamara, 3 Nev. 70 (1867), while this court recognized that the
wording of the statute under examination might well have been inadvertent, it adhered to
the mandate of the literal words, saying: "So on the other side, it may reasonably be
urged that the lawmakers intended precisely what their words import, {this is a primary
rule of construction). . .
"However that may be, we are not at liberty to speculate as regards probabilities, where
the language of the law is so clear and unambiguous as in the case before us.
court recognized that the wording of the statute under examination might well have been
inadvertent, it adhered to the mandate of the literal words, saying: So on the other side, it
may reasonably be urged that the lawmakers intended precisely what their words import, (this
is a primary rule of construction). . .
However that may be, we are not at liberty to speculate as regards probabilities, where the
language of the law is so clear and unambiguous as in the case before us.
The Legislature must be intended to mean what they have expressed in plain terms.
Whenever they have done so, there remains no room for construction by the Courts . . . 3
Nev., at 74.
Somehow, the majority opinion finds support in inapplicable Constitutional and statutory
provisions, saying: First, changes in compensation during terms of office are not favored. Cf.
Nevada Constitution Art. 4 28 and Art. 15 9; and NRS 266.450. I submit these
provisions support respondents more than they do appellants. Inclusio unius est exclusio
alterius. The inclusion of one is the exclusion of another. The certain designation of one
person is an absolute exclusion of all others. 11 Coke, 58b; Burgin v. Forbes, 293 Ky. 456,
169 S.W.2d 321, 325. Black's Law Dictionary, 906 (4th ed. 1957). Thus, the legislature has
plenary power to pass an act diminishing the salary of a county officer effective during his
term unless inhibited by the constitution. State ex rel. Miller v. Lani, 55 Nev. 123, 125, 27
P.2d 537, 537 (1933).
The majority opinion also asserts: If a statute delegating authority to fix compensation is
ambiguous, power to effect in-term changes will be denied. Busch v. Turner, 161 P.2d 456
(Cal. 1945); Regan v. San Mateo County, 97 P.2d 231 (Cal. 1939); see also Riley v. Carter,
25 P.2d 666, 669-671 (Okla. 1933). From this reference, one would suppose that in Busch v.
Turner the court refused to allow immediate effect to a salary bill, passed during the term of
an official who claimed the right to an in-term increase in pay; however, exactly the opposite
is true. In the Busch case, the Supreme Court of California did give immediate effect to a
salary increase for District Attorneys. In so doing, however, the California court made passing
reference to earlier cases holding that, where a constitutional prohibition against in-term
increases exists, a salary statute will be construed, if its language permits, so as to avoid
unconstitutionality. In this reference, apparently, the majority opinion finds support for its
position; however, I find other language of the Busch decision to be more informative on
the issues before us: "A statute purporting, in general terms, to increase salaries would
ordinarily be construed to include incumbents, and but for the constitutional bar it would
do so.
language of the Busch decision to be more informative on the issues before us: A statute
purporting, in general terms, to increase salaries would ordinarily be construed to include
incumbents, and but for the constitutional bar it would do so. When the prohibition of the
Constitution ceases to operate, there is no longer any reason to limit the statute, and its
literal meaning may be carried out in full. 161 P.2d, at 458; emphasis added. I find the other
authorities cited in the majority opinion equally unpersuasive with regard to the case before
us.
I subscribe to the reasoning of Matter of Diedrich v. Warren, 213 App.Div. 406, 210
N.Y.S. 49 (N.Y.App. 1925), a case markedly similar to the one before us, and concerning a
New York statute that provided the common council shall have the power to fix and change
the salaries of all officers of the city, including such as are fixed by this act [including the
common council itself] which shall not be diminished during the continuance of such term of
office. The council increased their own salaries during their terms; their action was
challenged on the grounds that the statute conferred no right or power on the council to
increase their own salaries during the term of office for which they had been elected, and that
their act in making such increase was against public policy. Determining that the language of
the new law was reasonably clear, the court declined to apply its own views of public policy.
The public policy of a State in matters of this nature is what the Legislature says it shall
be. 213 App.Div., at 408.
I see no problem in the fact that our Legislature failed to place an express ceiling on the
authority granted to the city council of North Las Vegas. Had the council acted unreasonably,
which does not appear to be the case, a different issue would be presented. In such a case,
undoubtedly we would determine that their action was beyond the scope of the legislative
grant; however, such a consideration provides no warrant for finding the grant of power
totally void.
The judgment of the lower court should be affirmed.
Batjer, J., concurs.
____________
87 Nev. 294, 294 (1971) De Met v. Zeman
PETER De MET, Appellant v. I. MILTON ZEMAN, SAWYER A. TULLER, ELI BOYER,
DAVID GOLDBERG, ALLAN LANDMAN, CHARLES CHAZEN, DAVID A. MESSING,
REUBEN D. GRUBER, ARNOLD L. LIPKIN, DANIEL LEMBARK, and HOWARD W.
BROTMAN, a Partnership dba ZEMAN, TULLER, BOYER & GOLDBERG, Respondents.
No. 6235
June 24, 1971 486 P.2d 487
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Taylor H.
Wines, Judge.
Action by accounting firm against individual partner and others on, inter alia, an open
book account. The district court gave judgment for plaintiff, and appeal was taken. The
Supreme Court, Gunderson, J., held that partner was not liable to plaintiff accounting firm for
services rendered partnership after the time, about May 1964, when accounting firm learned
of partner's withdrawal from the partnership.
[Rehearing denied August 3, 1971]
Wiener, Goldwater, Galatz & Raggio, Ltd. and J. Charles Thompson, of Lag Vegas, for
Appellant.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondents.
1. Partnership.
When a creditor has actual notice of the dissolution of a partnership the retiring partner normally is not
liable for services rendered thereafter to the remaining partners, even though notice of dissolution was not
published. NRS 87.350, subd. 1 (b)(2).
2. Partnership.
Partner was not liable to plaintiff accounting firm for services rendered partnership after the time, about
may 1964, when accounting firm learned of partner's withdrawal from the partnership. NRS 87.350,
subd. 1 (b)(2).
3. Interest.
Where it appeared from testimony of witnesses of plaintiff accounting firm that accounting firm rendered
their statements at two-week billing period, entering their amounts billed in red on their books of
account, interest should not have been allowed on what accounting firm itself alleged to be,
and what evidently was an open book account.
87 Nev. 294, 295 (1971) De Met v. Zeman
on what accounting firm itself alleged to be, and what evidently was an open book account. NRS 99.040,
subd. 1.
OPINION
Respondents, a firm of accountants, obtained the following judgment against appellant
Peter De Met and others:
ORDERED, ADJUDGED AND DECREED that the plaintiffs recover judgment against
PETER De MET, LOUIS LARAMORE, HAROLD V. CLARK and J. A. DONNELLEY, as
Executors of the Estate of WILBUR I. CLARK, deceased, a partnership, d/b/a C. D. L.,
NEVADA, and PETER De MET, individually, in the sum of $52,516.16, interest in the sum
of $15,483.64, and costs taxed in the amount of $304.65.
The evidence does not support the judgment, under any construction of such pleadings as
are now before the court; thus, we need not decide whether the lower court, having allowed
respondents to amend their Complaint on the morning of the trial, erred in refusing to
continue the trial so that appellant might plead anew. We reverse and remand the cause, with
instructions to allow appellant to raise, by appropriate pleadings and procedures, any and all
defenses he may have to the Complaint as amended.
For some time prior to December 31, 1961, Wilbur I. Clark, now deceased, appellant Peter
De Met, and one Louis Laramore, did business as Clark, De Met and Laramore, which they
styled a joint venture. As of January 1, 1962, they commenced doing business as C. D. L.,
Nevada, which they styled a partnership. In 1962, respondents commenced doing
accounting work for C. D. L., Nevada, and for various corporations in which Wilbur I.
Clark, Peter De Met, and Louis Laramore were interested, one being World Wide
Construction Co., Inc. These entities had interrelated business interests; World Wide
Construction Co., Inc. held the contractor's license used in their endeavors, and apparently
was the entity through which business bills were commonly paid; respondents allocated these
bills to the other entities through accounting procedures. Such money as respondents were
paid for their services was on a statement for $4,675, dated June 1, 1963, submitted to and
paid by World Wide Construction Co., Inc.
87 Nev. 294, 296 (1971) De Met v. Zeman
Eli Boyer, a member of respondents' accounting firm, testified that appellant De Met
withdrew from his partnership with Clark and Laramore sometime in May, 1964, and that
Boyer was aware of the termination of the partnership at or about the same time the same
was terminated. Apparently Clark and Laramore agreed to pay De Met for his interests, and
at some point one or both agreed to indemnify him against claims arising from their mutual
endeavors. With knowledge of De Met's withdrawal from C. D. L., Nevada and related
corporations, respondents continued to do accounting work, for which they submitted billings
every two weeks. At some point in time, respondents apparently ceased billing World Wide
Construction Co., Inc. At trial, for the expressly limited purpose of showing demands,
respondents offered into evidence statements they had ostensibly mailed during 1965 to the
address used in common by the various entities, five directed to Clark, De Met and
Laramore, and one to CDL Nevada. It is clear that these statements could not constitute
demands upon De Met because, as respondents well knew, he was not doing business either
at that address, or under those names.
After Wilbur Clark's death, respondents filed a creditor's claim with his estate, and on July
20, 1967, commenced the instant action against Peter De Met, Louis Laramore, and J. A.
Donnelley and Harold V. Clark as Executors of the Estate of Wilbur I. Clark, deceased, a
partnership d/b/a Clark, De Met and Laramore. (Emphasis added.) The First Claim of this
Complaint alleged that [w]ithin the past four (4) years, defendants had become indebted to
plaintiffs in the sum of $52,285 as the reasonable value of accounting services rendered. The
Second Claim alleged that [w]ithin the past four (4) years at Los Angeles, California, an
account was stated in writing by and between Plaintiffs and Defendants wherein it was agreed
that Defendants were indebted to Plaintiffs in this sum. The Third Claim alleged that the
services in question had been rendered on an open book account. The Fourth Claim
alleged that [w]ithin the past two (2) years, defendants had become indebted to plaintiffs in
the sum of $276.16 for money paid, laid out and expended for Defendants at their request.
The Complaint alleged neither the nature of the services, nor the dates they were performed.
It neither suggested that respondents might claim compensation from Peter De Met for
services rendered to corporations in which he had been interested along with Wilbur I. Clark
and Louis Laramore, nor that they sought payment from De Met for services rendered to
Clark and Laramore after De Met withdrew from partnership with them.
87 Nev. 294, 297 (1971) De Met v. Zeman
withdrew from partnership with them. Indeed, the Complaint even could be read to claim
compensation only for services rendered to Clark, De Met and Laramore, the original joint
venture.
By serving J. A. Donnelley with a writ of attachment, respondents purportedly attached
moneys due De Met upon a judgment against the Estate of Wilbur I. Clark, evidently owing
to appellant as settlement of his mutual interests with Clark; however, although respondents'
counsel apparently recognized the need to make Clark's estate a party to the action, they did
not serve Donnelley with the summons and Complaint. Instead, they only sought quasi in rem
jurisdiction over De Met, who was in Florida, by publication of the summons. In due course,
he filed an Answer, denying all allegations of the Complaint, and alleging no Counterclaim.
1

On the morning this action was to be tried, by motion filed the previous day, respondents
asked to amend the caption and body of their Complaint to name defendants as: PETER De
MET, LOUIS LARAMORE, and J. A. DONNELLEY and HAROLD V. CLARK, as
Executors of the Estate of WILBUR I. CLARK, deceased, a partnership d/b/a C. D. L.,
NEVADA. (Emphasis added.) Appellant's counsel objected, and also moved the court for
time to plead to the Complaint as amended, should amendment be permitted. The lower court
permitted the amendment, but denied appellant time to plead. The trial proceeded; the lower
court allowed respondents to adduce proof of work done for C. D. L., Nevada, and for the
other entities in which its principals had been interested, including work done after De Met's
withdrawal from their affairs. Judgment was entered for the total amount of this work.
[Headnotes 1, 2]
1. Even if respondents' Complaint, as amended, be construed to claim recovery from De
Met for services rendered to all the various entities in which C. D. L., Nevada and its
principals were interested, the Complaint still sought payment only for services rendered
within four years from the date it was filed, i.e. July 20, 1967. Evidence of charges prior to
the time concerned in the Complaint was ruled relevant for the limited purpose of showing
the "history" of the parties' course of dealing.
____________________

1
NRCP Rule 13(a) requires that certain claims be stated as counterclaims, but provides, among other things,
that the pleader need not state such claims if the opposing party brought suit upon his claim by attachment or
other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and
the pleader is not stating any counterclaim under this Rule 13. (Emphasis added.) The effect of this rule upon
jurisdictional issues raised by appellant has not been briefed for the benefit of this court.
87 Nev. 294, 298 (1971) De Met v. Zeman
time concerned in the Complaint was ruled relevant for the limited purpose of showing the
history of the parties' course of dealing. Thus, respondents manifestly could not be allowed
recovery for work done prior to July 20, 1963. When a creditor has actual notice of the
dissolution of a partnership, the retiring partner normally is not liable for services rendered
thereafter to the remaining partners, and this is so even though notice of dissolution [NRS
87.350(1)(b)(2)] was not published. Carvalho v. McCoy, 276 P.2d 21 (Cal.App. 1954); Dome
v. Maggard, 265 S.W.2d 454 (Ky.App. 1954). Thus, the lower court clearly erred in allowing
respondents recovery for work done after the time, about May of 1964, when they learned of
appellant's aforementioned withdrawal. For these reasons alone, further proceedings in the
lower court are required to determine what sum, if any, respondents may recover from
appellant De Met.
2

[Headnote 3]
2. From the testimony of respondents' witnesses, it appears respondents rendered their
statements at two week billing periods, entering the amounts billed in red on their books of
account. Thus, it was erroneous for the lower court to allow interest on what respondents
themselves alleged to be, and what evidently was, an open book account. NRS 99.040(1);
Flannery v. Anderson, 4 Nev. 437 (1868); cf. Checker, Inc. v. Zeman, 86 Nev. 216, 467 P.2d
100 (1970).
3. Appellant contends the lower court erroneously denied him time to plead to
respondents' Complaint as amended, and that he might have plead various defenses, as well
as claiming over against Louis Laramore and the estate of Wilbur I.
____________________

2
Respondents' Exhibit 8, a recapitulation of respondents' account of work done for all entities, reflects
billings for some $17,076.50 worth of services between July 20, 1963, and the beginning of May, 1964. If
services through the end of May, 1964, are included, the total is some $22,789.50. Thus, even if we could
resolve in respondents' favor all other issues raised by the parties, we could not adjust the parties' rights without
remanding the cause, for the right to more than $5,000 would remain in serious question. Appellant contends
that the most respondents may recover from him is some $3,000, because our statute of frauds, NRS 111.220,
declares void every special promise to answer for the debt, default or miscarriage of another, unless the same
be in writing. The statute of frauds is an affirmative defense, NRCP 8(c), which it will be necessary for appellant
to plead, and the applicability of which we do not decide.
87 Nev. 294, 299 (1971) De Met v. Zeman
Clark.
3
Respondents contend appellant was not injured, propounding numerous theories in
support of this view. There being no need, we decline to decide in the first instance on appeal,
in their absence, the sufficiency of pleadings that have never been passed upon by the lower
court. On remand, the lower court is instructed to allow appellant to raise, by appropriate
pleadings and procedures, any and all defenses he may have to the Complaint as amended,
and to cross claim against his codefendants as his rights may permit. As this will not now
cause a trial date to be vacated, there is now no reason to deny appellant the opportunity to
present his theories in the usual fashion.
The judgment is reversed, and the cause is remanded for proceedings in conformity with
this Opinion.
____________________

3
For example, appellant apparently contends that in a quasi in rem action, the court has only such jurisdiction
as it obtains through attachment of a defendant's property, that in this State a debt due from an estate may not be
garnished or attached in the hands of an executor or administrator [Howard's Estate, 48 Nev. 100, 227 P. 1016
(1924)], and that therefore the court lacked jurisdiction over the subject matter of the action. If so, if some
statute of limitations bars the claims now stated, if the statute of frauds is applicable to them, or if respondents'
failure to proceed against appellant's former partners affords him a defense or right of abatement, we see no
reason why such defenses may not be tendered by pleadings framed for the purpose. Similarly, if appellant is
entitled to indemnity against respondents' claims by virtue of an agreement with his former partners, or to
contribution from them, these rights may be asserted against his codefendants by cross claim. NRCP 13(g). In
like manner, our rules afford respondents opportunities to avoid the burden of litigating any insufficient defense,
e.g.: NRCP 8(d), 12(f), 56.
____________
87 Nev. 299, 299 (1971) Manning v. State
PATRICK J. MANNING, Appellant, v. THE
No. 6384
June 24, 1971 486 P.2d 485
Appeal from judgment of the Eighth Judicial District Court, Clark County; William R.
Morse, Judge.
Defendant was convicted in the district court of possession of marijuana, and he appealed.
The Supreme Court held that marijuana cigarette found by police officer on parking lot
where defendant had thrown it was not product of an unlawful "search" of his person and
was admissible.
marijuana cigarette found by police officer on parking lot where defendant had thrown it was
not product of an unlawful search of his person and was admissible.
Affirmed.
Robert G. Legakes, Public Defender, and Robert Archie, Deputy Public Defender, of Las
Vegas, for Appellant.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney; Charles
Criminal Law; Searches and Seizures.
Marijuana cigarette found by police officer on parking lot where defendant had thrown it was not
product of an unlawful search of his person and was admissible. NRS 453.030.
OPINION
Per Curiam:
Appellant having been convicted of possession of marijuana (NRS 453.030), his sole
claim of error is that [t]he court below erred in denying Appellant's Motion to Suppress
evidence produced from the illegal arrest of the Appellant, such arrest not being made under
probable cause.
The record reflects that Officer Christopher, who knew appellant by name and had a field
identification card concerning him, observed appellant smoking a cigarette as the officer
drove toward him in a marked police vehicle. Apparently seeing the police car, appellant
flipped his cigarette in such a way as to arouse Christopher's suspicions; Christopher radioed
for assistance; then, awaiting the arrival of back-up officers, he detained appellant and went
through his clothing, finding nothing. When Officer Mathis arrived, he retrieved a marijuana
cigarette from the place on a nearby doughnut shop parking lot, where Officer Christopher
directed him to look. The conviction is based entirely on this evidence, found on the parking
lot where appellant had thrown it, not on anything taken from appellant during the course of
what he contends was an unlawful search of his person.
Here we do not reach the question of whether there was an illegal search and seizure
following an illegal arrest. . .
The marijuana cigarette was not procured incident to a search, but it was abandoned
property when it was retrieved by the police officers. In Stamps v. State, supra, this court held
that where police officers discovered evidence in a public area where it was voluntarily
thrown, there was no search, and said: 'Looking at that which is open to view is not a
search.'" Oliver v. State, S5 Nev. 10, 12
where it was voluntarily thrown, there was no search, and said: Looking at that which is
open to view is not a search.' Oliver v. State, 85 Nev. 10, 12, 449 P.2d 252, 253 (1969). See
also: Stamps v. State, 83 Nev. 230, 428 P.2d 187 (1967).
Affirmed.
____________
87 Nev. 301, 301 (1971) R.C. Johnson & Assocs. v. Smithers
R. C. JOHNSON & ASSOCIATES, Appellant, v. PHILIP C.
SMITHERS, dba TOWN & COUNTRY DRY WALL, Respondent.
No. 6408
June 24, 1971 486 P.2d 481
judgment; Clarence Sundean, Judge.
Action upon foreign judgment confirming arbitration award. The district court granted
summary judgment to judgment creditor and judgment debtor appealed. The Supreme Court
held that where judgment debtor was represented by counsel at arbitration hearings and that
counsel was thereafter notified of court confirmation proceeding as provided by the
arbitration rules, court possessed jurisdiction to confirm the awards and enter judgment
thereon.
Affirmed.
Wiener, Goldwater & Galatz, and Herbert L. Waldman, of Las Vegas, for Appellant.
Lionel Sawyer Collins & Wartman and Steve Morris, of Las Vegas, for Respondent.
Arbitration and Award.
Where judgment debtor was represented by counsel at arbitration hearings and counsel was thereafter
notified of court confirmation proceeding as provided by the arbitration rules, court possessed
jurisdiction to confirm the awards and enter judgment thereon.
OPINION
Per Curiam:
This is an action upon a foreign judgment for $26,905.50 confirming an arbitration award
entered pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. The district court granted summary judgment to the plaintiff.
87 Nev. 301, 302 (1971) R.C. Johnson & Assocs. v. Smithers
plaintiff. The defendant appeals contending that the foreign judgment is void since personal
jurisdiction to enter it was not obtained. The record shows that the defendant was represented
by counsel at the arbitration hearings and that counsel was thereafter notified of the court
confirmation proceeding as provided by the Arbitration Rules.
1
The court thus possessed
jurisdiction to confirm the award and enter judgment thereon. Campanelli v. Altamira, 86
Nev. 838, 477 P.2d 870 (1970).
Affirmed.
____________________

1
Commercial Arbitration Rules 1(R.21). Further, under 39(b) of the above rules (R.24): Each party to an
agreement which provides for arbitration under these Rules shall be deemed to have consented that any papers,
notices or process necessary or proper for the initiation or continuation of an arbitration under these Rules and
for any court action in connection therewith or for entry of judgment on any award made thereunder may be
served upon such party by mail addressed to such party or his attorney at his last known address or by personal
service. . . .
____________
87 Nev. 302, 302 (1971) McWilliams v. State
GREGORY ANTHONY McWILLIAMS, Appellant, v.
No. 6416
June 24, 1971 486 P.2d 481
Appeal from judgment of conviction of robbery. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
The Supreme Court held that defendant who aided or abetted another to unlawfully take
personal property from person of another by means of force and who was charged with and
convicted of robbery was not entitled to another trial on theory of fatal variance.
Affirmed.
Wiener, Goldwater & Galatz, R. Gardner Jolley and Herbert L. Waldman, of Las Vegas,
for Appellant.
87 Nev. 302, 303 (1971) McWilliams v. State
Robbery.
Although proof established that defendant, who was charged with robbery, aided or abetted another to
unlawfully take personal property from person of another by means of force, there was no fatal variance.
NRS 195.020, 200.380.
OPINION
Per Curiam:
The appellant was charged with and convicted of robberythe unlawful taking of personal
property from the person of another by means of force. NRS 200.380. The proof established
that the appellant aided or abetted another to do so. Consequently, he urges a fatal variance
between the charge and the proof requiring another trial.
One who aids or abets another in the commission of a felony shall be proceeded against
and punished as a principal. NRS 195.020. Accordingly, the charge was permissible and,
since the proof established that the accused was concerned in the acts charged as an offense,
the verdict may stand. State v. Logan, 59 Nev. 24, 31, 83 P.2d 1035 (1938).
Affirmed.
____________
87 Nev. 303, 303 (1971) Flanders v. State Dep't of Commerce
MARCIA FLANDERS, Appellant, v. STATE OF NEVADA, DEPARTMENT
OF COMMERCE, REAL ESTATE DIVISION, Respondent.
No. 6321
June 25, 1971 486 P.2d 499
Appeal from a judgment of the Second Judicial District Court, Washoe County, affirming
an order of the Nevada Real Estate Advisory Commission which revoked appellant's license
as a real estate broker; Thomas O. Craven, Judge.
The Supreme Court, Gunderson, J., held that real estate broker's use of trust account not
merely to hold funds that were sole property of her clients but also as instrument to receive
and divide funds in which broker and clients had interest did not amount to prohibited
commingling such as warranted revocation of license.
Reversed.
Fry & Fry, of Reno, for Appellant.
W. Bruce Beckley, of Las Vegas, for Respondent.
1. Brokers.
Real estate broker's use of trust account not merely to hold funds that were sole property of her clients but
also as instrument to receive and divide funds in which broker and clients had interest did not amount to
prohibited commingling such as warranted revocation of license. NRS 645.310, subds. 3-5.
2. Brokers.
Failure of real estate broker to maintain proper records and other technical violations of law did not
support revocation of license.
For one who is qualified, pursuit of profession is a right, and not a matter of state's grace or favor.
OPINION
[Headnote 1]
On this appeal, the paramount issue is whether the Nevada Real Estate Advisory
Commission abused its discretion by deciding that certain ostensible improprieties in the
handling of appellant's trust account warrant revoking her license to do business as a real
estate broker.
1

Although respondent originally charged appellant with other violations of law, the Nevada
Real Estate Advisory Commission found her only to have violated NRS 645.310(3), which
provides that [a] real estate broker shall not commingle the money or other property of his
principal with his own, and NRS 645.310(5), which provides generally that [e]very real
estate broker required to maintain such a separate custodial or trust account shall keep records
of all funds deposited therein, which records shall indicate clearly the date and from whom
he received money, the date deposited, the dates of withdrawals, and other pertinent
information concerning the transaction, and shall show clearly for whose account the
money is deposited and to whom the money belongs."
____________________

1
NRS 645.760 provides that from an adverse ruling of the commission a licensee may appeal to district court,
and: Upon the hearing of the appeal, the burden of proof shall be upon the appellant, and the court shall receive
and consider any pertinent evidence, whether oral or documentary, concerning the action of the commission
from which the appeal is taken, but shall be limited solely to a consideration and determination of the question of
whether there has been an abuse of discretion on the part of the commission in making such decision. The
function of this court at this time is the same as that of the lower court. Randono v. Nev. Real Estate Comm'n,
79 Nev. 132, 137, 379 P.2d 537, 539 (1963).
which records shall indicate clearly the date and from whom he received money, the date
deposited, the dates of withdrawals, and other pertinent information concerning the
transaction, and shall show clearly for whose account the money is deposited and to whom
the money belongs.
Appellant's testimony is the only evidence in the record. Although respondent's counsel
was aware respondent's investigator was deceased, and must have known NRS 645.690
entitles a licensee [t]o examine, either in person or by counsel, any and all persons
complaining against him, as well as other witnesses whose testimony is relied upon to
substantiate the charge made, he nonetheless attempted to interject the deceased
investigator's report into evidence by interrogating appellant about the report, and then
offering it in evidence. Appellant's counsel made a timely objection that the report was
hearsay, whereupon respondent's counsel stated: I will amend my offer of the letter and the
analysis simply to be made a part of the record, not for the truth of the statements therein
contained, but for explanation of the testimony which has previously been given by this
witness. Thereupon, appellant's counsel stated: I will withdraw the objection if it is
admitted on that basis. Thus, the investigator's report can be deemed to have no independent
probative significance.
Appellant's testimony establishes that she commonly utilized her trust account not merely
to hold funds that were the sole property of her clients, but also as an instrument to receive
and divide funds in which both she and her clients had an interest, such as rents from which
appellant was entitled to take a commission. Although respondent has not promulgated any
specific regulations implementing NRS 645.310(5), appellant maintained a ledger book, with
appropriate columns to enter pertinent information concerning trust account deposits. During
respondent's only previous survey of appellant's office, in 1965, respondent's representative
apparently found no deficiencies in the manner appellant maintained her records. In recording
detail, omissions and errors did evidently occur, none of which were such as to cause loss to
any client. Appellant acknowledges she is not a good bookkeeper; indeed, when the office
survey out of which this action arose was instituted, it appears appellant had already delivered
her records to an accountant, seeking assistance in establishing a better system. At the time of
the hearing before the Commission, she produced corrected records, which respondent does
not seriously appear to question either as to form or content. She explained her accounting
problem arose because, to her dismay, properties she had undertaken to sell had become
management projects that she, with no office personnel, was not well equipped to handle.
her accounting problem arose because, to her dismay, properties she had undertaken to sell
had become management projects that she, with no office personnel, was not well equipped
to handle. In this regard, it appears she has acted responsibly to correct a problem into which
any undercapitalized business person may inadvertently fall.
1. Appellant contends that her usual method of utilizing her trust account did not
constitute commingling.
2
Respondent apparently contends that to deposit in a trust
account money in which the practitioner has any interest is commingling per se, within the
meaning of NRS 645.310(3). No authority has been cited in support of either position.
Under a rule similar to our statute, the Supreme Court of California has recognized that a
trust account may properly be used as a vehicle to receive and divide funds in which a
professional practitioner has an interest, and that commingling does not result unless the
practitioner fails to withdraw his share at the earliest reasonable time. Black v. State Bar of
California, 368 P.2d 118, 122 (Cal. 1962). The court also held in substance that technical
commingling, resulting from a practitioner's failure to withdraw his own share promptly,
did not constitute grounds for disciplinary proceedings, where members of the profession had
never been notified of their duties in this regard.
3
In general, we agree. It appearing to us
that appellant's "trust account" might properly be used to receive and divide funds in
which both she and her clients were interested, that respondent has never promulgated
any rule defining or limiting the time within which she was obligated to withdraw the
moneys to which she was entitled, and that there is in any event no evidence or finding
that she allowed her own funds to remain in the "trust account" an undue length of time,
her accustomed use of her "trust account" cannot serve as ground for disciplinary
proceedings against her.4
____________________

2
In this regard, Appellant's Opening Brief states her position as follows: First in regard to paragraph 3, the
broker shall not commingle the money or other property of his principal with his own. The Appellant did not
take the principal's money and put it in her personal account. This would likely have been commingling. NO, the
Appellant kept all incoming money in the trust account' for all of it was not hers; she had accounting to make to
Bowen, King and Russell; she also had money to pay out on the encumbrance on the property. Would the
Commission have her put all the incoming money into her personal account and pay Bowen, King and Russell
and the encumbrance payment? It appears Appellant handled the money in a quite proper manner for most of
this money was truly trust money and properly in the trust account.'

3
In this regard, the Supreme Court of California said: . . . When petitioner received corporate funds in which
he had an agreed interest, he should have separated his money from the balance at the earliest reasonable time.
When he held his client's funds, part of which he subsequently became entitled to take for himself, he should
have separated his money from the balance at the earliest reasonable time after his own interest became fixed.
In the absence of any prior decision holding that petitioner's actions violated the commingling rule,
however, we have concluded that the charges against him should be dismissed insofar as they are based upon his
failure to segregate his money from that of his client. . . . 368 P.2d, at 122-123.
that appellant's trust account might properly be used to receive and divide funds in which
both she and her clients were interested, that respondent has never promulgated any rule
defining or limiting the time within which she was obligated to withdraw the moneys to
which she was entitled, and that there is in any event no evidence or finding that she allowed
her own funds to remain in the trust account an undue length of time, her accustomed use
of her trust account cannot serve as ground for disciplinary proceedings against her.
4

Respondent has attempted to bolster its arguments concerning commingling with
reference to the fact that appellant once advanced a client $350 from her own funds, took the
client's post-dated check in exchange, reimbursed herself with a $350 check drawn on her
trust account, then reimbursed the trust account by depositing the client's check when it
matured. Although accommodating her client in this fashion may have been irregular,
appellant's conduct substantiates neither of the charges of which she was found guilty; nor
does it demonstrate any lack on her part of general competence or good faith. Since no
probative force may be given to conclusions set forth in the deceased investigator's hearsay
report, the record reflects no other improper use of clients' funds. That report based a
conclusion that other improper invasions had occurred upon a totally gratuitous assumption,
to wit: that if the investigator could not identify the owners of a given deposit, appellant had
no interest therein. However, appellant's testimony reflects that she did not use clients' funds,
as the investigator's report concluded.
5
[Headnote 2]
____________________

4
On one occasion, appellant did place in her trust account loan proceeds in which no client had an interest,
believing this was proper because she secured the loan by encumbering property she had contracted to sell to a
client. Asked about this, she explained: You see, I borrowed money against this property. The property was
being sold to Russell, so I felt that the loan should be of record on the account. Actually, the principal seller, that
would be me, this money I borrowed for my own use, so I deposited it in the account to show that it was
borrowed against the property, then withdrew that money, disbursed it, so to speak to myself. Appellant's
unnecessary pains to be scrupulous about this transaction may have resulted in a technical commingling, for the
brief span of time the loan proceeds remained in her trust account; however, such infraction must certainly be
recognized as trivial.

5
Interrogation of appellant on this point proceeded as follows:
Q Now, his report, reading in the second paragraph on page 2, it reads:
It was finally determined that as of May 31, 1968 the funds in the trust account were $940.22 short of what
is due the various clients. Upon questioning Mrs. Flanders about the shortage, she disagreed and
[Headnote 2]
2. Upon the facts of this case, appellant's failure to maintain proper records, and such
other technical violations of law as the record may reflect, will not support revocation of her
license. In Black v. State Bar of California, supra, the Supreme Court of California rejected
the Board of Bar Governors' recommendation that the practitioner be suspended for three
years, saying:
. . . He has demonstrated his good faith by undertaking the reorganization of his office
procedures in accordance with the recommendations of an established accounting firm.
Petitioner, however, not only violated Rule 9 as amended but failed to maintain proper
office records. For these infractions it is sufficient that petitioner be reprimanded publicly.
This opinion shall serve as such reprimand. 368 P.2d, at 118.
Similarly, in In re Reno, 57 Nev. 314, 64 P.2d 1036 (1937), although appellant had
committed a misdemeanor by failing to report a prostitute infected with venereal disease, we
modified an order of the district court which had affirmed the state board of medical
examiners' decision to revoke his medical certificate.
____________________
proceeded to come up with figures (out of thin air) which reflects a shortage of only $196.23.'
I am not asking you whether that statement is correct. At least that statement appears in the report, does it
not?
A Yes, it does.
Q Is it a fact that Mr. Stalnaker did point out to you that you were short $940.22?
A Yes, he really sent me when he told me that.
Q Do you state now that that was a correct or incorrect statement?
A It was an incorrect statement.
Q In what fashion was it incorrect, or what manner was it incorrect?
A Well, it just wasn't factual.
Q Let me ask this: Was there actually on the date of May 31, 1968 a shortage of $196.23?
A When Mr. Stalnaker pointed this out to me I tried to find out from what he was pointing at, what he was
referring to, and I quickly, all I could come up with was $196.23. I wasn't sure that was at all correct. What date
did you say, Mr. Beckley?
Q May 31, 1968.
A May 31, 1968. In the account itself on May 31 of 1968, Mr. Beckley, there was no shortage, in fact.
Q I'm not asking what your bank balance was as of that date. I'm asking you whether or not there was
sufficient funds in the account to pay all of your clients.
A Yes, there was.
Appellant's later testimony pointed out the assumption upon which Mr. Stalnaker's gratuitous conclusions were
based:
I read this letter and from the way he states it he has taken the figures that I didn't provide clear answers to
and seemingly added them all up.
an order of the district court which had affirmed the state board of medical examiners'
decision to revoke his medical certificate. We ordered him immediately reinstated, noting that
moral turpitude had not been demonstrated. If we could feel that the conduct complained of
was willful and intentional, we would affirm the order appealed from in all particulars. 57
Nev., at 330.
[Headnote 3]
For one who is qualified, pursuit of a profession is a right, and not a matter of the State's
grace or favor. In re Schaengold, 83 Nev. 65, 68, 422 P.2d 686, 688 (1967); Ex parte Kellar,
81 Nev. 240, 401 P.2d 616 (1965). The purpose of real estate licensure is to bar the
dishonest or incompetent from entry into this occupation. Holland Rlty v. Nev. Real Est.
Comm'n, 84 Nev. 91, 98, 436 P.2d, 422, 426 (1968). Appellant has demonstrated that the
Commission abused its discretion (NRS 645.760) by showing that respondent has failed to
present a prima facie case (NRS 645.610, NRS 645.680) of such violations as would
reasonably demonstrate appellant's unfitness to continue in her chosen occupation. Although
we commend respondent's efforts to protect the public, without substantial evidence to
support it, we may not permit Commission's decision in this case to stand.
To the extent appellant's conduct may warrant punishment, [w]e think the demands of
justice have already been served. In re Reno, 57 Nev., at 330.
Reversed.
____________
87 Nev. 309, 309 (1971) Harris v. Zee
HENRIETTA HARRIS, Appellant, v. LOUIS ZEE
aka ZEE LOUIS, Respondent.
No. 6405
June 28, 1971 486 P.2d 490
Appeal from order of the Eighth Judicial District Court, Clark County; William R. Morse,
Judge.
Personal injury action. The district court after jury verdict for $10,000 compensatory
damages, granted defendant's motion for new trial unless plaintiff accepted remittitur of
$7,500, and plaintiff appealed. The Supreme Court, Thompson, J., held that award of
$10,000, which included special damages of $529.50 with balance for pain and suffering
for three years of voice distress, did not indicate passion or prejudice on part of jury when
considered in light of undisputed evidence, and, in absence of statement of reasons by
trial judge for diminishing plaintiff's recovery on ground of excessiveness, Supreme Court
reinstated jury verdict and judgment entered thereon.
87 Nev. 309, 310 (1971) Harris v. Zee
damages of $529.50 with balance for pain and suffering for three years of voice distress, did
not indicate passion or prejudice on part of jury when considered in light of undisputed
evidence, and, in absence of statement of reasons by trial judge for diminishing plaintiff's
recovery on ground of excessiveness, Supreme Court reinstated jury verdict and judgment
entered thereon.
Reversed.
Mowbray, J., dissented.
[Rehearing denied July 20, 1971]
Denton & Monsey, of Las Vegas, for Respondent.
1. New Trial.
District court, in personal injury action in which jury awarded plaintiff, who had incurred $529.50 special
damages, $10,000 compensatory damages possessed power to enter order granting new trial unless plaintiff
accepted remittitur of $7,500. NRCP 59(a)(6).
Supreme Court possesses power to enter order granting new trial unless plaintiff accepts remittitur.
Test, when trial judge orders remittitur damnum and Supreme Court is asked to review his action, is
whether trial judge abused his discretionary power.
When evidence regarding damage is not in conflict, order to remit immediately becomes suspect on
appeal unless amount awarded by jury, standing alone, is so excessive as to suggest intrusion of passion
and prejudice upon its deliberations.
Award of $10,000, which included special damages of $529.50 with balance for pain and suffering for
three years of voice distress, did not indicate passion or prejudice on part of jury when considered in light
of undisputed evidence, and, in absence of statement of reasons by trial judge for diminishing plaintiff's
recovery on ground of excessiveness, Supreme Court reinstated jury verdict and judgment entered thereon.
OPINION
In this personal injury action the jury favored the plaintiff with its verdict for $10,000
compensatory damages. Her special damages were in the sum of $529.50 and the balance of
the award was for pain and suffering.
87 Nev. 309, 311 (1971) Harris v. Zee
the award was for pain and suffering. The district court, believing that the award was
excessive, granted the defendant's motion for a new trial unless the plaintiff would accept a
remittitur of $7,500. This, the plaintiff refused to do, choosing instead, to challenge the
propriety of the court's order by this appeal.
The plaintiff, a domestic worker, was eating a dinner of string beans, rice and chicken at
the defendant's Louisiana Club. She swallowed an object which stuck in her throat, and
commenced vomiting. She was taken to the emergency room of the Southern Nevada
Memorial Hospital where the doctor ordered an esophagoscopy. A small metal fragment was
visualized in the upper part of the esophagus. It soon passed into the stomach or the digestive
system and was not recovered. She remained in the hospital overnight and was released.
Thereafter, she was treated by her doctor for about one month. At the time of trial some three
years later she claimed that her voice was hoarse and that she still had trouble speaking. Her
testimony and that given by her doctors is not disputed. The defendant did not offer medical
evidence.
[Headnotes 1, 2]
The trial court possessed the power to enter the order here challenged. NRCP 59(a)(6);
Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964); Brownfield v. Woolworth
Co., 69 Nev. 297, 251 P.2d 589 (1952). This court also possesses that power. Miller v.
Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Henry v. Baber, 75 Nev. 59, 334 P.2d 839
(1959); Knock v. T. & G. R. R. Co., 38 Nev. 143, 145 P. 939 (1914); Konig v. N. - C. - O.
Ry., 36 Nev. 181, 135 P. 141 (1913); Cutler v. P. S. P. M. Co., 34 Nev. 45, 116 P. 418
(1911); Christensen v. Floriston P. Co., 29 Nev. 552, 92 P. 210 (1907).
[Headnotes 3, 4]
When the trial judge orders a remittitur damnum and we are asked to review his action, the
test is whether he abused his discretionary power. Gill v. Epstein, 401 P.2d 397 (Cal. 1965).
This is an elusive standard. We must accord deference to the point of view of the trial judge
since he had the opportunity to weigh evidence and evaluate the credibility of witnessesan
opportunity foreclosed to this court. To this extent the appeal is weighted in favor of the order
entered, and when there is a material conflict of evidence as to the extent of damage, a
challenge to the trial court's exercise of discretion is substantially repelled.
87 Nev. 309, 312 (1971) Harris v. Zee
substantially repelled. However, this is not so when the evidence regarding damage is not in
conflict. The order to remit immediately becomes suspect unless the amount awarded by the
jury, standing alone, is so excessive as to suggest the intrusion of passion and prejudice upon
its deliberations.
[Headnote 5]
In the case at hand the award of $10,000, when considered in the light of the undisputed
evidence, does not indicate passion or prejudice on the part of the jury. An allowance of
$3,000 a year for three years of voice distress is within reasonable limits. Our judicial
conscience is not shocked [Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824 (1962)] and
we are unable to perceive why the trial judge was offended. He did not state his reasons for
diminishing the plaintiff's recovery on the ground of excessiveness. In these circumstances we
do not hesitate to reinstate the verdict of the jury and the judgment entered thereon.
Reversed.
Zenoff, C. J., Batjer and Gunderson, JJ., concur.
Mowbray, J., dissenting:
Respectfully, I dissent.
It is axiomatic that a trial judge has the power to review the evidence and draw reasonable
inferences therefrom in passing on the question whether a jury has awarded excessive
damages in a trial heard before him. Collins v. Lucky Mkts., Inc., 79 Cal.Rptr. 454 (Cal.App.
1969), and Gordon v. Strawther Enterprises, Inc., 78 Cal.Rptr. 417 (Cal.App. 1969). In doing
so he must, however, keep in mind the provisions of NRCP 59(a)(6):
RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of
the issues for any of the following causes or grounds materially affecting the substantial rights
of an aggrieved party: . . . (6) Excessive damages appearing to have been given under the
influence of passion or prejudice; . . .
At just what point an excessive award can be deemed the result of prejudice or passion is
difficult to say. Each case must turn on its own facts. Certainly, the reward must be
substantially excessive in light of all the plaintiff's evidence, to support such a finding.
In this case, the maximum amount of Henrietta's specials did not exceed $529.50.
87 Nev. 309, 313 (1971) Harris v. Zee
did not exceed $529.50. The district judge concluded that the $10,000 was so excessive as to
warrant a new trial unless Henrietta would agree to accept a $7,500 remittitur of the $10,000
judgment. This, I believe, was cutting too close to the bone. An appellate court does have the
power to fix the amounts of remittiturs, and I would take the opportunity to do so in this case.
See Cartier v. Liberty Laundry, Inc., 139 A. 473 (RE.I. 1927).
It would be my judgment based on the evidence in the record that the remittitur should be
fixed in the sum of $5,000. This in my opinion would be fair to all the parties. Therefore, I
would affirm the order of the district court granting a new trial unless the appellant would be
willing to accept a remittitur of $5,000 of the $10,000 verdict.
____________
87 Nev. 313, 313 (1971) Artistic Hairdressers, Inc. v. Levy
ARTISTIC HAIRDRESSERS, INC., a Nevada Corporation, and NEW YORK
UNDERWRITERS INSURANCE COMPANY, a Corporation, Appellants, v. SID LEVY,
JOSEPHINE STEINFELD, and EDITH HANSEN, Respondents.
No. 6412
June 28, 1971 486 P.2d 482
Appeal from order by Eighth Judicial District Court, Clark County, assessing damages
under temporary restraining order bond; William P. Compton, Judge.
Action wherein plaintiff had obtained a temporary injunction which was later dissolved.
From an order by the district court assessing damages under a temporary restraining order
bond, the plaintiff and its insurer appealed. The Supreme Court, Mowbray, J., held that
reasonable sums paid as attorney's fees in obtaining dissolution of injunction were properly
recoverable as damages under rule providing for payment of damages to party who is found to
have been wrongfully enjoined or restrained.
Affirmed.
Peter L. Flangas, of Las Vegas, for Appellants.
Morton Galane and A. Loring Primeaux, of Las Vegas, for Respondents.
1. Injunction.
Reasonable sums paid as attorney's fees in obtaining dissolution of injunction were properly recoverable
as damages under rule providing for payment of damages to party who is found to have been wrongfully
enjoined or restrained. NRCP 65(c).
2. Injunction.
Award of $2,500 of attorney's fee in obtaining dissolution of injunction was not without substantial
evidence, where district judge who fixed the damages also granted the temporary injunction, later ordered
its dissolution, and then finally heard the motion for assessment of damages resulting from the wrongful
injunction so that the judge was well-acquainted with, and able to determine the reasonableness of the fee
from, all the pleadings and records presented to him. NRCP 65(c).
3. Injunction.
Only those reasonable attorney's fees directly related to dissolution of wrongful injunction may be
recovered. NRCP 65(c).
OPINION
The issue presented for our consideration on this appeal is whether attorney's fees incurred
in obtaining the dissolution of a wrongful injunction are recoverable as damages within the
scope of NRCP 65(c), which provides, in part:
(c) Security. No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper, for the payment of
such costs and damages as may be incurred or suffered by any party who is found to have
been wrongfully enjoined or restrained. . . .
The court below ruled that reasonable sums paid as attorney's fees in obtaining dissolution
of the injunction were recoverable as damages under the provisions of the rule. We agree, and
we affirm the judgment of the district court.
1. The Facts.
On October 21, 1969, the plaintiff-appellant, Artistic Hairdressers, Inc., filed a motion and
a complaint in the district court seeking a temporary and permanent injunction under the
provisions of NRCP 65(a) and (b)
1
to enjoin the respondents-defendants, Sid Levy,
Josephine Steinfeld, and Edith Hasen, from retaining in employment or hiring certain
named persons, all of whom had been employees of Artistic Hairdressers, Inc.
____________________

1
NRCP RULE 65 (INJUNCTIONS), Paragraphs (a) and (b):
(a) Preliminary; Notice. No preliminary injunction shall be issued without notice to the adverse party.
(b) Temporary Restraining Order; Notice; Hearing; Duration. No temporary restraining order shall be
granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable
from retaining in employment or hiring certain named persons, all of whom had been
employees of Artistic Hairdressers, Inc. On October 24, 1969, the district judge granted
appellant's motion for a temporary restraining order and, under the provisions of paragraph
(c) of the pertinent statute, fixed bond in the sum of $50,000. The respondents moved on
October 27, 1969, to dissolve the temporary restraining order. After a hearing on the motion,
the court ordered dissolution of the temporary injunction on October 29, 1969. Thereafter,
respondents filed an appropriate motion to recover their damages resulting from the wrongful
injunction. The same district judge who had granted the temporary restraining order and who
later ordered its dissolution heard the motion for assessment of damages. He ruled at the
conclusion of the hearing on the motion that, while the respondents had not suffered any
financial loss in their business, they had incurred damages in the sum of $2,500, which they
had paid to their attorney for necessary services rendered in the preparation and prosecution
of the motion to dissolve the temporary restraining order. The district judge entered a
judgment in favor of the respondents and against the appellant for that amount, and this
appeal resulted.
2. The Allowance of Attorney's Fees.
[Headnote 1]
Appellant's principal argument, that attorney's fees are not allowable as damages within
the concept of NRCP 65{c), is based on the decisions of the federal courts that preclude
the allowance of attorney's fees as damages in wrongful injunction suits.2 Since Nevada
has adopted in general the Federal Rules of Civil Procedure, the appellant argues that the
federal rule must prevail in this case.
____________________
injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every
temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be
filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable
and why the order was granted without notice; and shall expire by its terms within such time after entry, not to
exceed 15 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended
for a like period or unless the party against whom the order is directed consents that it may be extended for a
longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is
granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest
possible time and takes precedence of all matters except older matters of the same character; and when the
motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the
application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary
restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or
on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its
dissolution or modification and in that event the court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require.
allowable as damages within the concept of NRCP 65(c), is based on the decisions of the
federal courts that preclude the allowance of attorney's fees as damages in wrongful
injunction suits.
2
Since Nevada has adopted in general the Federal Rules of Civil Procedure,
the appellant argues that the federal rule must prevail in this case. We do not agree. Attorney's
fees have been allowed as recoverable damages in Nevada long before the State adopted the
Federal Rules of Civil Procedure. See Brown v. Jones, 5 Nev. 374 (1870), and McIntosh v.
Knox, 40 Nev. 403, 165 P. 337 (1917). And after the Federal Rules of Civil Procedure were
adopted, attorney's fees have been allowed in wrongful injunction suits. See American Fed'n
of Musicians v. Reno's Riverside Hotel, Inc., 86 Nev. 695, 475 P.2d 220 (1970), and Glens
Falls Ins. Co. v. First Nat'l Bank, 83 Nev. 196, 427 P.2d 1 (1967). We see no reason to
abrogate the ruling at this juncture. The reason for the rule and the justification for the
allowance of attorney's fees in such cases was well put by this court in McIntosh, supra.
Although that case involved a wrongful attachment, the reasons expressed for the rule
followed there are equally applicable here. There, the court said, 40 Nev. at 413, 165 P. at
338: It [an attachment proceeding] is a harsh remedy, and for that reason one who brings the
action must pay the damage sustained by the adversary in case the proceedings are wrongfully
instituted.
In this case, the respondents honored the temporary injunction. They moved with dispatch
to seek its dissolution. To do so, the services of an attorney were required. They engaged an
attorney for that limited purpose and paid him a $2,500 fee, which the court below found
reasonable. They must be reimbursed accordingly.
[Headnote 2]
Appellant has also argued that there was no substantial evidence before the district judge
to support the $2,500 award. We do not agree. The district judge who fixed the damages also
granted the temporary injunction, later ordered its dissolution, and then finally heard the
motion for the assessment of damages resulting from the wrongful injunction. The judge was
well acquainted with, and able to determine the reasonableness of the fee from, all the
pleadings and records presented to him. Cf. Casey v. Williams, 87 Nev. 137, 482 P.2d 824
(1971).
____________________

2
Hoon v. Harmer Steel Prods. & Supply Co., 278 F.2d 427 (9th Cir. 1960); Heiser v. Woodruff, 128 F.2d
178 (10th Cir. 1942); In re Farmer's Union Merc. Co., 26 F.2d 102 (D.C.S.C. 1928).
In passing, we wish to note that only those reasonable attorney's fees directly related to the
dissolution of the wrongful injunction may be recovered. As the California court said in
Curtiss v. Bachman, 42 P. 910, 911 (Cal. 1895):
Counsel fees incurred by a defendant by reason of a preliminary injunction are recognized
as a part of the damages for which he has a right to indemnity, and are within the undertaking
which the plaintiff is required to give as a condition of procuring the injunction; but only such
counsel fees as may be incurred after the injunction has been issued, and prior to the
determination of the action, can be considered as within the rule. If the defendant, instead of
attempting to remove the temporary injunction, seeks rather to prevent the issuance of a
permanent injunction, or directs his efforts to defeating the action of the plaintiff, the expense
of counsel fees thus incurred is an incident of the suit, and is not recoverable as damages
sustained by reason of the injunction. . . . See also Mason v. United States Fidelity & Guar.
Co., 141 P.2d 475, 479 (Cal.App. 1943).
[Headnote 3]
We conclude that attorney's fees are a recoverable item of damages under the provisions of
NRCP 65(c) and that the record amply supports the $2,500 award made by the district judge
in this case. Therefore, the judgment is affirmed.
____________
87 Nev. 317, 317 (1971) City of Reno v. Crofoot
THE CITY OF RENO, NEVADA, a Municipal Corporation, Appellant, v. ROBERT
CROFOOT and JOSEPH WILLIAMS, Respondents.
No. 6421
June 28, 1971 486 P.2d 486
applications for writs of habeas corpus; Emile J. Gezelin, Judge.
The Supreme Court held that even if city attorney had right to appeal from judgment
granting habeas corpus to respondents charged in municipal court with trespassing, notice of
appeal filed 28 days after judgment was not timely.
Appeal dismissed.
87 Nev. 317, 318 (1971) City of Reno v. Crofoot
Clinton E. Wooster, City Attorney and John A. White, Assistant City Attorney, of Reno,
for Appellant.
Streeter, Sala & McAuliffe, of Reno, for Respondent Joseph M. Williams.
Stanley H. Brown, of Reno, for Respondent Robert Crofoot.
Habeas Corpus.
Even if city attorney had right to appeal from judgment granting habeas corpus to respondents charged in
municipal court with trespassing, notice of appeal filed 28 days after judgment was not timely. NRS
34.380, subd. 4.
OPINION
Per Curiam:
By notice of appeal filed 28 days after notice that the Second Judicial District Court had
granted habeas corpus to respondents, charged in Municipal Court with trespassing, Reno's
City Attorney has attempted to appeal.
[I]n the absence of express statutory authorization, no appeal will lie to the supreme court
from such an order or judgment of the lower court, or judge, in a habeas corpus proceeding,
where the party being deprived of his liberty is held upon criminal process. This is also the
rule at common law. Ex parte Sullivan, 65 Nev. 128, 130, 189 P.2d 338, 340 (1948).
In 1953, our legislature granted district attorneys and the attorney general the right to
appeal within 20 days from the day of entry of the order, making no mention of city
attorneys. Stat. of Nevada, ch. 205, 1 (d) (1953); NRS 34.380(4). Not until after the instant
appeal was NRS 34.380(4) amended to allow the same right to city attorneys. Stat. of Nevada,
ch. 175, 1 (1971).
Respondents contend the city attorney had no right to appeal on behalf of appellant, at the
time he attempted to do so, for NRS 34.380 did not then grant him such authority; however,
assuming that our legislature's 1971 amendment merely declared the intent of the 1953
enactment, it is nonetheless clear that notice of appeal was not timely filed.
Upon motion of respondents, the appeal is dismissed.
____________
87 Nev. 319, 319 (1971) Walz v. Hood
VIRGINIA PAUL WALZ, Appellant, v. CLINTON EARL HOOD, and
UNION CAB COMPANY, a Nevada Corporation, Respondents.
No. 6397
June 28, 1971 487 P.2d 344
Appeal from Judgment on the Pleadings entered by the Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Action by passenger against taxicab owner and driver for personal injuries sustained while
a passenger for hire. The district court rendered Judgment on the Pleadings for the taxicab
owner and the driver and the passenger appealed. The Supreme Court, Gunderson, J., held
that action was governed by two-year limitations statute covering actions for injuries to the
person rather than four-year statute covering actions upon a contract, obligation or liability
not founded upon instrument in writing, though passenger sued on theory of breach of
contract of carriage.
Affirmed.
Foley Brothers, of Las Vegas, for Appellant.
Austin & Thorndal, of Las Vegas, for Respondents.
Word action, within statute providing four-year limitation with respect to actions on contract not
founded on an instrument in writing, refers to nature or subject matter and not the denomination of the
action by the pleader. NRS 11.190, subd. 2(c).
Action by passenger against taxicab owner and driver for personal injuries sustained while a passenger
for hire was governed by two-year limitations statute covering actions for injuries to the person rather than
four-year statute covering actions upon a contract, obligation or liability not founded upon instrument in
writing, though passenger sued on theory of breach of contract of carriage. NRS 11.190, subds. 2(c),
3(c), 4(e).
OPINION
Appellant Walz, who allegedly sustained personal injuries while a passenger for hire in
taxicab owned by respondent Union Cab Company and negligently operated by
respondent Hood, has appealed from a Judgment on the Pleadings determining that NRS
11.190{4){e), which allows only two years to commence "[a]n action to recover damages
for injuries to a person or for the death of a person caused by the wrongful act or neglect
of another," bars the three "claims" stated in appellant's Second Amended Complaint.
87 Nev. 319, 320 (1971) Walz v. Hood
while a passenger for hire in taxicab owned by respondent Union Cab Company and
negligently operated by respondent Hood, has appealed from a Judgment on the Pleadings
determining that NRS 11.190(4)(e), which allows only two years to commence [a]n action to
recover damages for injuries to a person or for the death of a person caused by the wrongful
act or neglect of another, bars the three claims stated in appellant's Second Amended
Complaint. We affirm the judgment, deciding that although the second and third claims
allude to duties legally implied from her relationship with respondents, appellant's claims are
not within NRS 11.190 (2)(c), which allows four years to commence [a]n action upon a
contract, obligation or liability not founded upon an instrument in writing.
[Headnotes 1, 2]
By similar pleading techniques, the appellant in Hartford Ins. v. Statewide Appliances, 87
Nev. 195, 484 P.2d 569 (1971), attempted to remove an action for injuries to personalty from
the three-year limitation of NRS 11.190(3)(c), and to bring it within the ambit of NRS
11.190(2)(c). On the basis of detailed examination of principle and precedent, we said: The
term action' in NRS 11.190(3) refers to the nature or subject matter and not to what the
pleader says it is. * * * This action may not be said to be upon a contract insofar as it seeks
recovery for injuries to personal property because NRS 11.190(3)(c) specifically governs such
an action. 87 Nev., at 197. So, equally, NRS 11.190(4)(e) specifically governs the instant
case.
Appellant relies most heavily upon Forrester v. S. P. Co., 36 Nev. 247, 134 P. 753 (1913),
deciding that a suit by one who sustained injuries flowing directly from his having been
wrongfully ejected from defendant's train, contrary to the terms of his ticket, survived his
death as one in contract. There we expressly noted: If the action were for some insult,
assault, or tortious act of the train agent not connected with the breach of contract, and
Forrester had been given passage in compliance with the terms of the ticket, the provision of
the statute for survival of all actions founded upon contract would not apply. 36 Nev., at
273. The instant case differs from the Forrester case, in its facts and as to the statute under
consideration [see: Compton v. Evans, 93 P.2d 341 (Wash. 1939)]; thus, we adhere to the
principle of Hartford Ins. v.
87 Nev. 319, 321 (1971) Walz v. Hood
thus, we adhere to the principle of Hartford Ins. v. Statewide Appliances, supra.
1

____________________

1
It would appear appellant's counsel were misadvised regarding the date the accident occurred and, upon
learning the correct date, have made every effort to salvage the action by filing an amended pleading and taking
this appeal.
____________
87 Nev. 321, 321 (1971) Glass v. District Court
ERWIN GLASS, Petitioner, v. EIGHTH JUDICIAL
DISTRICT COURT, Respondent.
No. 6303
July 2, 1971 486 P.2d 1180
Original Petition for Writ of Certiorari.
Proceeding on original Petition for Writ of Certiorari wherein constitutionality of
obscenity statute was contested. The Supreme Court, Thompson, J., held that certiorari was
unavailable to determine whether films were unlawfully seized.
Petition dismissed.
Batjer, J., concurred in part, dissented in part.
Wiener, Goldwater & Galatz, of Las Vegas, for Petitioner.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and John D. O'Brien,
Special Deputy District Attorney, Clark County, for Respondent.
Obscenity does not enjoy constitutional protection.
Motion pictures are within ambit of constitutional guarantee of freedom of speech and press.
3. Obscenity.
Hearing designed to focus searchingly on issue of obscenity must occur prior to seizure of film.
4. Obscenity.
Ex parte affidavit of law officer stating what he viewed is not sufficient to warrant seizure of film, nor is
it enough for magistrate to view film prior to seizure.
First and Fourteenth Amendments require adversary judicial hearing and determination of obscenity
before warrant may be issued to search and seize single copies of allegedly obscene films. U.S.C.A.Const.
Amends. 1, 14.
6. Certiorari.
Certiorari is available to test constitutionality of statute but not to decide question of admissibility of
evidence. NRS 34.020, subd. 3.
7. Criminal Law.
Evidence obtained in violation of constitutional requirements may be suppressed. NRS 179.085.
8. Certiorari.
Statutory provision for suppression of illegally obtained evidence provides adequate legal remedy
precluding employment of certiorari. NRS 179.085.
9. Certiorari.
Certiorari was unavailable to determine whether films were unlawfully seized. NRS 201.250.
OPINION
This original proceeding in certiorari tests the constitutionality of NRS 201.250 which,
among other matters, makes it a misdemeanor knowingly to distribute or exhibit any obscene
item. This remedy is appropriate to challenge the constitutionality of an ordinance or statute.
NRS 34.020(3); City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967).
It is the petitioner's contention that the criminal portions of our obscenity law are
constitutionally inadequate since no provision is made for an adversary hearing on the issue
of obscenity before the criminal procedures are invoked. The petitioner is the proprietor of a
motion picture house and was charged with exhibiting allegedly obscene films entitled, The
Muthers, and Wanda, the Sadistic Hypnotist. A search warrant was issued ex parte by a
magistrate on the basis of an affidavit of a criminal investigator who had viewed each film the
preceding day, and the films were seized. The investigator's affidavit recited his personal
impressions of the fIlms. The complaints were dismissed in the justice court on the ground
that the seizure of the fIlms was unconstitutional since there had not been a prior adversary
hearing on the issue of obscenity. The district court reversed those dismissals and this
independent certiorari proceeding was then instituted. We are not called upon to decide
whether the films are in fact obscene.
[Headnotes 1-4]
1. It is settled that obscenity does not enjoy constitutional protection. Roth v. United
States, 354 U.S. 476 (1957). It is equally clear that motion pictures are within the ambit of the
constitutional guarantee of freedom of speech and of the press. Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959);
Jacobellis v. Ohio, 378 U.S. 184 (1964). Consequently, appropriate deference to the First
Amendment is required since the public has the right to receive nonobscene materials. It is for
this reason that a hearing designed to focus searchingly on the issue of obscenity must
occur prior to seizure. A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Lee Art Theatre
v. Virginia, 392 U.S. 636 (1968); Marcus v. Search Warrant, 367 U.S. 717 (1961); Demich,
Inc. v. Ferdon, 426 F.2d 643 (9 Cir. 1970), reversed on other grounds; Cambist Films, Inc. v.
Duggan, 420 F.2d 687 (3 Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2
Cir. 1969); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4 Cir. 1969); Metzger v. Pearcy, 393
F.2d 202 (7 Cir. 1968). The separation of legitimate from illegitimate speech calls for . . .
sensitive tools. . . . A Quantity of Books v. Kansas, at 212. The ex parte affidavit of a law
officer stating what he viewed is not sufficient (Demich, Inc. v. Ferdon, supra; Cambist
Films, Inc. v. Duggan, supra; Bethview Amusement Corp. v. Cahn, supra; Tyrone, Inc. v.
Wilkinson, supra; Lee Art Theatre v. Virginia, supra), nor is it enough for the magistrate to
view the film prior to seizure. Demich, Inc. v. Ferdon, supra, Tyrone, Inc. v. Wilkinson,
supra.
[Headnote 5]
We regard it as settled that the First and Fourteenth Amendments require that there be an
adversary judicial hearing and determination of obscenity before a warrant may be issued to
search and seize the single copies of allegedly obscene films.
1
Compliance with the
proscriptions of the Fourth Amendment is not sufficient. Although it is suggested that such a
hearing is not required absent a massive seizure as in Marcus v. Search Warrant, supra, and
A Quantity of Books v. Kansas, supra, it is evident to us that the restraint following the
seizure in this case may have been as serious in its consequences as the restraint following a
massive seizure of one's books held for distribution and sale.
____________________

1
A 1965 amendment, NRS 201.250(4) does provide for an adversary hearing through the use of the civil
injunctive process. This part of our statute was borrowed from Arizona, A.R.S. 13-535, and has been declared
constitutional by the intermediate appellate court of that state. City of Phoenix v. Fine, 420 P.2d 26 (C.App.Ariz.
1966).
restraint following a massive seizure of one's books held for distribution and sale. Where
one's First Amendment rights are exercised by exhibition, restraint clearly follows from
seizure of the film to be exhibited. Demich, Inc. v. Ferdon, supra; Bethview Amusement
Corp. v. Cahn, supra. We express no opinion upon the need for such an adversary hearing in
situations other than the one before us.
[Headnotes 6-9]
2. We are not aware of any case holding that a criminal obscenity statute must contain a
provision for such an adversary hearing in order to successfully withstand constitutional
challenge. The adversary hearing requirement is directed solely to the validity of a seizure and
has no bearing upon how a criminal statute is to be structured. Certiorari, although available
to test the constitutionality of a statute, is not available to decide a question of the
admissibility of evidence. Evidence obtained in violation of constitutional requirements may
be suppressed. NRS 179.085; Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). This is an
adequate legal remedy. Accordingly, we dismiss this petition for certiorari. The order of the
district court, to the extent that it remanded the cases to the justice court for trial, shall stand.
The matter of the admissibility of the seized films will there be resolved in line with this
opinion if the prosecutor elects to proceed further.
2

Respectfully, I dissent.
This original certiorari proceeding challenges the ruling of the district judge that ordered
the petitioner, Erwin Glass, to stand trial on two criminal misdemeanor complaints charging
Glass with violations of NRS 201.250 (exhibition of obscene motion pictures). The
complaints were dismissed by a justice of the peace of the Las Vegas Justice Court on the
ground that the seizure of the films by an investigator from the district attorney's office in
Clark County was in derogation of Glass's constitutional rights because there had been no
prior adversary hearing on the issue of obscenity before the films were seized.
____________________

2
Criminal prosecutions for obscenity are not frustrated by this opinion. A seizure of the allegedly obscene
film is not essential in order to prove a case. Other procedures are available as noted in Demich, Inc. v. Ferdon,
supra; Bethview Amusement Corp. v. Cahn, supra; and United Artists Theatre Circuit, Inc. v. Thompson, 316
F.Supp. 815 (W.D. Ark. 1970). See also comments at 46 New York Univ. L.R. 80 and 15 South Dakota L.R.
399.
hearing on the issue of obscenity before the films were seized. From that ruling the State
appealed to the district court and won a reversal of the justice court's order. Glass is now
before us on a writ of certiorari seeking review of the order of the district court. I would
affirm the order of the district judge, and I would remand the case for trial in accordance with
the order of the lower court.
On December 29, 1969, an investigator from the Clark County District Attorney's office
read advertisements in two Las Vegas newspapers regarding the showing of two films in
downtown Las Vegas: WANDA (THE HYPNOTIST)'LASHED INTO
SUBMISSION!FOR MATURE ADULTS ONLY and TITLE WITHHELD' [The
Muthers']ONLY FOR THE MATURE ADULT WHO UNDERSTANDS.
For two dollars, the investigator secured a ticket to the performances, and he viewed both
films from about noon to approximately 3:20 p.m. Each film ran approximately 70 minutes.
At 4:00 p.m. the investigator commenced the preparation of an affidavit testifying to the facts
and circumstances of what he had seen. Thereafter, he consulted with a deputy district
attorney. He concluded his statement with a request for a search warrant for the seizure of the
two films, lest they be removed from the jurisdiction by transference.
The investigator then appeared before a justice of the peace in Las Vegas, who scrutinized
the AFFIDAVIT IN SUPPORT OF AND PETITION FOR SEARCH WARRANT. After
careful study and scrutiny of the affidavit, the justice of the peace issued a search warrant.
The films were seized, and Glass was charged with two violations of NRS 201.250 and
released on his own recognizance.
On January 13, 1970, Glass sought a motion to dismiss both complaints, alleging violation
of his rights under the First, Fourth, and Fourteenth Amendments of the United States
Constitution because he had not been afforded a prior adversary hearing on the issue of
whether the films were obscene. The motion to dismiss was granted by a justice of the peace.
1
The State then appealed to the district court, noting that the Nevada statute under which
Glass was charged did not provide for nor require a prior adversary hearing in obscenity
cases.
2
Glass was charged under subsection 2 of NRS 201.250, supra, for wrongfully
exhibiting the allegedly obscene movies, a misdemeanor.
____________________

1
He was not the magistrate who issued the search warrant.

2
NRS 201.250:
1. In this section, unless the context otherwise requires:
(a) Item' includes any book, leaflet, pamphlet, magazine, booklet, picture, drawing, photograph, film,
negative, slide, motion picture,
Glass was charged under subsection 2 of NRS 201.250, supra, for wrongfully exhibiting the
allegedly obscene movies, a misdemeanor.3 The district judge agreed with the State's
position, and he remanded the case to the justice court for trial.
____________________
figure, object, article, novelty device, recording, transcription or other similar items.
(b) Obscene' means that which considered as a whole has as its dominant theme or purpose an appeal to
prurient interest or a shameful or morbid interest in nudity, sex or lewdness going substantially beyond
customary limits of candor in description or representation of such matters.
2. A person is guilty of a misdemeanor who knowingly:
(a) Prints, copies, manufactures, prepares, produces or reproduces any obscene item for purposes of sale or
commercial distribution.
(b) Publishes, sells, rents, transports in intrastate commerce, or commercially distributes or exhibits any
obscene item, or offers to do any such things.
(c) Has in his possession with intent to sell, rent, transport or commercially distribute any obscene item.
3. No person, firm, association or corporation shall, as a condition to any sale, allocation, consignment or
delivery for resale of any paper, magazine, book, periodical or publication require that the purchaser or
consignee receive for resale any other item, article, book or other publication which is obscene. No person, firm,
association or corporation shall deny or threaten to deny any franchise or impose or threaten to impose any
penalty, financial or otherwise, by reason of the failure or refusal of any person to accept such items, articles,
books or publications, or by reason of the return thereof. A person, firm, association or corporation who violates
any provision of this subsection is guilty of a misdemeanor.
4. (a) The district court has jurisdiction to enjoin the sale or distribution of obscene prints and articles, as
described in paragraph (b).
(b) The district attorney of any county or the city attorney of any city in which a person, firm, association or
corporation publishes, sells or distributes or is about to sell or distribute or has in his possession with intent to
sell or distribute or is about to acquire possession with intent to sell or distribute any book, magazine, pamphlet,
comic book, story paper, writing, paper, picture, drawing, photograph, figure, image or any written or printed
matter of an obscene character, or which contains an article or instrument of obscene use or purports to be for an
obscene use or purpose, or in any other respect defined in subsection 1, may maintain an action on behalf of such
county or city for an injunction against such person, firm, association or corporation in the district court to
prevent the sale or further sale or the distribution or further distribution of [sic] the acquisition, publication or
possession within the state of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture,
drawing, photographed figure or image or any written or printed matter of an obscene character, described in this
subsection or in subsection 1.
(c) The person, firm, association or corporation sought to be enjoined shall be entitled to a trial of the issues
within 10 days after joinder of issue and a decision shall be rendered by the court within 10 days of the
conclusion of the trial.
(d) If a final order or judgment of injunction is entered against the person, firm, association or corporation
sought to be enjoined, such final order of [sic] judgment shall contain a provision directing the
demeanor.
3
The district judge agreed with the State's position, and he remanded the case to
the justice court for trial. The district judge, in an able and well reasoned opinion, made it
clear that prior to seizure there must be a judicial determination of obscenity based on facts
and not on the conclusory determination of a police officer. The court below was satisfied
that the 15-page factual recital under oath and the study thereof by the magistrate prior to the
determination of obscenity constituted such an appropriate judicial determination. The district
judge observed that it would be a practical impossibility for the magistrate to view the films
in private and that it would demean the dignity of the court to require him to go to the theater
for this purpose. The district judge also discerningly observed that the Supreme Court of the
United States has not laid down a rule of procedure for all state courts requiring an adversary
hearing to determine obscenity prior to seizure. I agree. Obscenity in whatever form is wholly
unprotected by the free speech guaranty of the First Amendment. Roth v. United States, 354
U.S. 476 (1957). The courts will not hesitate to enforce any valid law against obscenity.
Jacobellis v. Ohio, 378 U.S. 184 (1964).
In Stanley v. Georgia, 394 U.S. 557, 568 (1969), the High Court, holding it
unconstitutional to make private possession of obscene material a crime, went on to say:
Roth and the cases following that decision are not impaired by today's holding. As we have
said, the States retain broad power to regulate obscenity; that power simply does not extend to
mere possession by the individual in the privacy of his own home. If this be true, the
Constitution does not deny the State the power to arrest a person on a charge of dealing
in pornography that appeals only to pruriency, affronts all community standards, and
completely lacks social worth without first haling that person into court to caution him
that what he is doing is unlawful.
____________________
person, firm, association or corporation to surrender to the sheriff of the county in which the action was brought
any of the matter described in paragraph (b), and such sheriff shall be directed to seize and destroy such obscene
prints and article.
(e) In any action brought as provided in this subsection, such district attorney or city attorney bringing the
action shall not be required to file any undertaking before the issuance of an injunction order provided for in
paragraph (c).
(f) The sheriff directed to seize and destroy such obscene prints and articles shall not be liable for damages
sustained by reason of the injunction order in cases where judgment is rendered in favor of the person, firm,
association or corporation sought to be enjoined.
(g) Every person, firm, association or corporation who sells, distributes, or acquires possession with intent
to sell or distribute any of the matter described in paragraph (b), after the service upon him of a summons and
complaint in an action brought pursuant to this subsection[,] is chargeable with knowledge of the contents of
such matter.

3
No attempt was made by the district attorney to enjoin Glass under the provisions of subsection 4 of NRS
201.250, and that section of the chapter is not relevant to the issues in this case.
be true, the Constitution does not deny the State the power to arrest a person on a charge of
dealing in pornography that appeals only to pruriency, affronts all community standards, and
completely lacks social worth without first haling that person into court to caution him that
what he is doing is unlawful. The impracticalities of such a mandate are manifest. It is no
longer an acceptable proposition in tort law that a dog is entitled to one free bite.
4
There
should be no rule in criminal law, even by virtue of the protection accorded to freedom of
speech, that every peddler of pornography is entitled to one free display of scatology. Such a
procedure is unprecedented in criminal law and is incapable of effective enforcement. No
prosecution could be commenced under such a constitutional mandate unless the State first
held a separate adversary proceeding against every dealer in or exhibitor of pornography for
each item of pornography that he might choose to sell or display at that time. Even though a
court might have decided that one person was violating the obscenity law by dealing in
pornography, an offender on the next street could not be prosecuted until he also had been
afforded a prior adversary hearing concerning the same pornographic item. Were the
existence of any touch of prior restraint the tincture by which conduct is stained
unconstitutional, then presumably the existence of the requirement of a prior adversary
hearing would color unlawful all arrests for [a]ny person who willfully makes a telephone
call without disclosing his true identity and addresses any obscene language, representation or
suggestion to or about any person receiving such call,
5
or who knowingly causes to be
performed or exhibited, or engages in the performance or exhibition of, any obscene, indecent
or immoral show, act or performance,
6
or who knowingly . . . [e]xhibits for sale, sells or
loans for monetary consideration to a minor any picture, photograph, drawing, sculpture,
motion picture film, or similar visual representation or image of a person or portion of the
human body which depicts nudity, sexual conduct or sadomasochistic abuse and is harmful to
minors.
7

And it would mar the arrest, absent a prior adversary hearing, of one knowingly using the
mails to transmit [e]very obscene, lewd, lascivious, indecent, filthy or vile article,"S as
well as for transgressing the law that makes it a crime to mail matter containing "upon
the envelope or outside cover . . . any delineations, . . . or language of an indecent, lewd,
lascivious, or obscene character".9
____________________

4
See W. Prosser, Law of Torts 516 (3d ed. 1964).

5
See NRS 201.255.

6
See NRS 201.253.

7
See NRS 201.265.
obscene, lewd, lascivious, indecent, filthy or vile article,
8
as well as for transgressing the
law that makes it a crime to mail matter containing upon the envelope or outside cover . . .
any delineations, . . . or language of an indecent, lewd, lascivious, or obscene character.
9

Such a requirement would apparently dye entirely unconstitutional that which makes it a
crime to utter any obscene, indecent, or profane language by means of radio
communication,
10
because there would be no way to have a prior adversary hearing with
respect to such utterances unless all radio communications were required to be previously
transcribed.
In the instant case, the district judge in his opinion found that the investigator's affidavit
was such as to enable the magistrate to focus searchingly on the question of obscenity by
inquiry into the factual basis for the investigator's conclusion that the films were obscene. I
also have made a careful study of the detailed affidavit presented to the magistrate. There is a
factual description of some 30 different acts of genital-to-genital and oral-to-genital
intercourse between man and woman, woman and woman, without theme or plot, in one film;
and in the other film, some 10 situations involving genital-to-genital intercourse, another 10
involving female-to-female sexual relationships, and numerous instances of a woman
whipping a man to satisfy sexual desires. There is an abundance of factual evidence of nudity
and disrobing.
In my opinion the magistrate, after the aforementioned study, could come to no reasonable
hypothesis other than that the films were obscene by contemporary community and national
standards and that the search warrant should issue. No amount of argument by way of
adversary hearing could provide any other hypothesis. I find nothing other than a total and
utter lack of redeeming social value. The facts are not only patently offensivethey are
loathsomely repulsive and detestably disgusting. The dominant appeal of the films, taken as a
whole, is to a prurient interest.
No more than Mr. Justice Potter Stewart may one attempt to define hard-core
pornography. Jacobellis v. Ohio, supra. One knows it when he sees it. The motion pictures
involved in this case are just that.
____________________

8
See 18 U.S.C. 1461.

9
See 18 U.S.C. 1463.

10
See 18 U.S.C. 1464.
On April 26, 1971, the United States Supreme Court (Justices Black and Douglas dissenting)
denied certiorari in Gornto v. Georgia, 402 U.S. 933, a case which held that a prior adversary
hearing was not necessary for an obscenity determination concerning material that the police
had purchased. The Georgia Supreme Court decision [Gornto v. State, 178 S.E.2d 894 (Ga.
1970)] is summarized as follows in 9 CrL 4020 (4-28-71):
OBSCENITYMagazine entitled Whiplash Lovers', whose contents consisted solely of
nudity and illicit and perverted sexual activity, is obscene; state obscenity statute is
constitutional, and the obscenity of the magazine was properly determined by local
community standards; the right to privately possess obscene materials does not necessarily
imply the right to distribute such materials; no prior adversary hearing is necessary for
obscenity determinations concerning material that police have purchased.
I find that case in rather close analogy with the case before us. The investigator here paid
two dollars for admission to the theater, watched and heard the motion pictures and their
accompanying sound tracks, and immediately recited factually the scenes therein as well as
the sounds. Without delay, he consulted counsel and, again without delay, swore to the truth
of his statements. A 15-page, contemporaneous, sworn factual statement, taking into
consideration the expense and difficulty of buying a film, should provide the careful regard
owed to the consideration of freedom of speech.
I have also considered the case of Ledesma v. Perez, 304 F. Supp. 662 (1969), relied upon
by Glass, where a three-judge federal court ruled that the arrests and the seizure of allegedly
obscene materials were invalid for lack of a prior adversary hearing on the character of the
seized materials. On February 23, 1971, the United States Supreme Court reversed (401 U.S.
82, 84, 91 S.Ct. 674, 676), on the ground of an unwarranted interference by the federal courts
in the state powers. Mr. Justice Black, speaking for the court, said:
It is difficult to imagine a more disruptive interference with the operation of the state
criminal process short of an injunction against all state proceedings. . . . The propriety of
arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters
to be resolved by state tribunals, see Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96
L.Ed. 138 (1951), . . . We therefore hold that the three-judge court improperly intruded into
the State's own criminal process and reverse its orders suppressing evidence in the pending
state prosecution and directing the return of all seized materials.
Petitioner Glass has relied heavily on the ruling of the United States Court of Appeals in
Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir. 1970), where the majority of the court held
that a prior adversary hearing would be required before the state (California) would be
permitted to seize any further movie films. On March 29, 1971, the United States Supreme
Court granted certiorari in Demich (401 U.S. 990), vacating the judgment, and remanded the
case to the United States Court of Appeals for the Ninth Circuit for reconsideration in light of
Perez v. Ledesma, supra.
I would prefer to follow the rule of our sister state of California recently announced in
Monica Theater v. Municipal Court, 88 Cal.Rptr. 71, 81 (Cal.App. June 23, 1970, as modified
on denial of rehearing, July 8, 1970, hearing denied by Supreme Court of California, Sept.
11, 1970), where the court said:
An even later decision, Demich, Inc. et al., v. Ferdon et al., 426 F.2d 643, decided by the
United States Court of Appeals for the Ninth Circuit on May 13, 1970, follows these
preceding federal counterparts [Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969), cert.
denied, 396 U.S. 985 (1969), Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir.
1969), cert. denied, 397 U.S. 920 (1970); 208 Cinema, Inc. v. Vergari, an unreported Second
Circuit opinion, reversing a District Court opinion reported in 298 F.Supp. 1175 (S.D.N.Y.
1969)] in dealing with a film seizure case arising in California. (See also Metzger v. Pearcy,
393 F.2d 202 (7th Cir. 1968).) However, the opinion makes no reference to the California
statutory scheme for prompt judicial review of a previously issued search warrant ( 1538.5).
Thus, we find it not controlling (cf. People v. Willard, 238 Cal.App.2d 292, 305, 47 Cal.Rptr.
734 [1965]). Moreover, we agree fundamentally with the dissenting opinion therein. . . .
In Monica, the California court stressed, 88 Cal.Rptr. at 81:
California's section 1538.5 hearing is a procedural vehicle which allows for a very prompt
adversary proceeding, and is one which the censor' knows calls for him to go to court.' (See
Freedman v. Maryland, supra (1965) 380 U.S. 51, 59, . . .)
A similar remedy is available to petitioner Glass under Nevada law. See NRS 179.085.
11
Our statute, like California's, permits one who has been aggrieved by an improper seizure
of his property, to move the court for return of the property on the ground that the
warrant was illegally issued, thus affording the petitioner a prompt adversary hearing.
____________________

11
NRS 179.085:
1. A person aggrieved by an unlawful search and seizure may move the court having jurisdiction where the
property was seized for the return of the property and to suppress for use as evidence anything so obtained on
the ground that:
permits one who has been aggrieved by an improper seizure of his property, to move the court
for return of the property on the ground that the warrant was illegally issued, thus affording
the petitioner a prompt adversary hearing. This remedy was and is available to Glass in the
instant case. This, in my opinion, affords sufficient opportunity to any person who wishes to
do so to challenge the legality of a seizure. It is the accepted practice in California, and I can
find no authority from the High Court that questions its validity.
12

Since the first decision on obscenity of the United States Supreme Court in 1957, the
appeals and collateral actions based on local efforts to punish or restrain the peddling of the
lewd, lascivious, and obscene have proliferated until volumes could be filled with citations
alone.
This court should, in my opinion, take judicial notice of the national clamor over the delay
in disposing of criminal cases. Due process can be had without piling one adversary hearing
upon another. This case is another demonstration of the fact that the criminal process could
be simplified and expedited without loss of constitutional rights.
I would deny the writ of certiorari, and I would remand the case for disposition in
accordance with the order of the district judge of the Eighth Judicial District Court of the
State of Nevada in and for the County of Clark, issued on the third day of June, 1970.
I agree with that part of the majority opinion holding that the petition for certiorari be
dismissed and that the order of the district court to remand the case to the justice's court
for trial be allowed to stand.
____________________
(a) The property was illegally seized without warrant; or
(b) The warrant is insufficient on its face; or
(c) There was not probable cause for believing the existence of the grounds on which the warrant was issued;
or
(d) The warrant was illegally executed.
The judge shall receive evidence on any issue of fact necessary to the decision of the motion.
2. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it
shall not be admissible evidence at any hearing or trial.
3. The motion to suppress evidence may also be made in the court where the trial is to be had. The motion
shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of
the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.

12
The impracticalities resulting from the rule emanating from the majority's opinion requiring a prior
adversary hearing are manifest: Without the film, who is to testify regarding its character? May not the film be
edited, or even destroyed, by the operator at any time before seizure?
the petition for certiorari be dismissed and that the order of the district court to remand the
case to the justice's court for trial be allowed to stand. I respectfully dissent from the holding
of the majority that: We regard it as settled that the First and Fourteenth Amendments
require that there be an adversary judicial hearing and determination of obscenity before a
warrant may be issued to search and seize the single copies of allegedly obscene films.
I agree with the district court judge when he reasoned that prior to a seizure of this nature
there must be a judicial determination of obscenity based on facts and not the conclusive
determination of a law enforcement officer and then found that the investigator's affidavit was
sufficiently factual to enable the magistrate to focus searchingly on the question of obscenity
before issuing the search warrant. Compliance with the Fourth Amendment
1
prohibitions
against unreasonable searches and seizures together with the added precautions that the
viewing officer's affidavit must contain factual information and not his conclusions, and that
it be carefully considered by a magistrate before the search warrant issues, affords everyone
adequate protection.
There is a wide spread contention that property rights can be adequately safeguarded only
if there is a prior adversary hearing, for without such a hearing the owner's property could be
detained for an extended period of time and he would suffer a financial loss. That thinking
loses sight of the altruistic purpose of the First Amendment that the public has the right to
receive non-obscene material, and places the question squarely within the Fourth Amendment
protection against deprivation of property without due process of law.
I further agree with the conclusion of the district court judge when he determined that the
United States Supreme Court had not laid down a rule of procedure for all state courts
requiring an adversary hearing to determine obscenity prior to seizure.
The majority relies on A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Lee Art
Theatre v. Virginia, 392 U.S. 636 (1968); Marcus v. Search Warrant, 367 U.S. 717 (1961);
Demich, Inc. v. Ferdon, 426 F.2d 643 (9 Cir. 1970); reversed on other grounds; Cambist
Films, Inc. v. Duggan, 420 F.2d 687 (3 Cir. 1969); Bethview Amusement Corp. v. Cahn, 416
F.2d 410 {2 Cir.
____________________

1
United States Constitution, Amend. IV: Unreasonable searches and seizures. The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
F.2d 410 (2 Cir. 1969); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4 Cir. 1969); Metzger v.
Pearcy, 393 F.2d 202 (7 Cir. 1968), for support of its position that an adversary hearing must
be conducted prior to seizure.
The decision of A Quantity of Books v. Kansas, supra, can be read to stand for the
proposition that an adversary hearing must be held as a prerequisite to a seizure of allegedly
obscene material, however, Justice Brennan was not speaking for a majority of the High
Court. Moreover, it is not apparent whether the decision may have been strictly limited as to
its facts. I do not feel constrained to follow it. See Gornto v. State, 178 S.E.2d 894 (Ga.
1970); Mitchum v. State, 244 So.2d 159 (Fla. 1971).
In United States v. Wild, 422 F.2d 34 (2nd Cir. 1969), that court said: These cases
[Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and
Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961)], are
inapposite since they involved massive seizures of books under state statutes which
authorized warrants for the seizure of obscene materials as a first step in civil proceedings
seeking their destruction. The seizures in this case were of instrumentalities and evidence of
the crime for which appellants were indicted and lawfully arrested. We do not believe Marcus
and Quantity of Books can be read to proscribe the application of the ordinary methods of
initiating criminal prosecution to obscenity cases. Cf. Milky Way Productions, Inc. v. Leary,
305 F.Supp. 288 (S.D.N.Y. 1969), affirmed 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970),
where it was held that an adversary hearing is not a prerequisite to the validity of an arrest for
obscenity. Here, on theory, Erwin Glass could have been arrested without a prior adversary
hearing, locked up, and prevented from exhibiting to the public his nonobscene materials, but
following the majority opinion his two films Wanda', the hypnotist, lashed into submission,
for mature adults only, and Title Withheld', only for the mature adult who understands,
must be granted an adversary hearing before they can be held.
The majority also relies upon Lee Art Theatre v. Virginia, supra, and Marcus v. Search
Warrant, supra, to support its position that a prior adversary hearing is required. Marcus
involved the seizure of 11,000 copies of 280 different publications. The High Court reversed
the lower court's denial of the petitioner's motion to suppress and ordered the seized material
returned to the owner on the ground that the search warrants were too general and that the
conclusive determination by the officers that the material was obscene and the failure of
the magistrate to examine the alleged obscene material before issuing the warrant
constituted a denial of due process and a violation of the Fourth Amendment.
officers that the material was obscene and the failure of the magistrate to examine the alleged
obscene material before issuing the warrant constituted a denial of due process and a
violation of the Fourth Amendment. Although the High Court discussed the question of
whether a prior adversary hearing was necessary it did not decide that issue. In Lee Art
Theatre, Inc. v. Virginia, supra, two films were seized from the petitioner's theatre, upon the
basis of an ex parte warrant based upon an officer's affidavit, stating only the titles of the
films and that he had determined them to be obscene. The High Court held this procedure to
be erroneous, as the issuance of the warrant without the justice of the peace's inquiry into the
factual basis for the officer's conclusions fell short of constitutional requirements demanding
necessary sensitivity to freedom of expression. That court's opinion is silent on the issue of
whether a prior adversary hearing is necessary.
Justice Mowbray pointed out in his dissent that NRS 179.085, affords the petitioner an
ample safeguard if his property has been improperly seized. Pursuant to that statute he may
move for return of the property on the ground that the search warrant was improvidently
issued. Monica Theater v. Municipal Court for Beverly Hills J. D., 88 Cal.Rptr. 71 (Cal.App.
1970).
I believe that we should simply hold that an adversary hearing is not required, dismiss the
petition for certiorari, and affirm the order of the district court.
____________
87 Nev. 335, 335 (1971) Chesler v. Chesler
PATRICIA E. CHESLER, Appellant, v. HARVEY LYNN
CHESLER, Respondent.
No. 6447
July 12, 1971 486 P.2d 1198
Appeal from Order Modifying Decree of Divorce, entered by the Eighth Judicial District
Court, Clark County; William R. Morse, Judge.
The district court entered modification order, and wife appealed. The Supreme Court held
that where only change in husband's circumstances since divorce decree was that he left state
where his monthly salary was $1,200 plus auto allowance and full expense account to live
near his parents in another state where his salary was $1,200 with no expense account
benefits, and only changes in wife's circumstances were that she married casino dealer
and that, since her remarriage, her father no longer permitted her to receive income from
trust he had established for benefit of their children, order reducing husband's child
support obligations was abuse of discretion, and that husband, who was behind in child
support payments required by original divorce decree, would not be allowed to transport
children to his home out of state as permitted by modification order until he was current
in all child support payments.
benefits, and only changes in wife's circumstances were that she married casino dealer and
that, since her remarriage, her father no longer permitted her to receive income from trust he
had established for benefit of their children, order reducing husband's child support
obligations was abuse of discretion, and that husband, who was behind in child support
payments required by original divorce decree, would not be allowed to transport children to
his home out of state as permitted by modification order until he was current in all child
support payments.
Reversed in part; affirmed in part, as modified.
Robert N. Peccole, of Las Vegas, for Appellant.
Richard D. Weisbart, of Las Vegas, for Respondent.
1. Divorce.
Where only change in husband's circumstances since divorce decree was that he left state where his
monthly salary was $1,200 plus auto allowance and full expense account to live near his parents in
another state where his salary was $1,200 with no expense account benefits, and only changes in wife's
circumstances were that she married casino dealer and that, since her remarriage, her father no longer
permitted her to receive income from trust he had established for benefit of their children, order reducing
husband's child support obligations was abuse of discretion.
2. Divorce.
Husband, who was behind in child support payments required by original divorce decree, would not
be allowed to transport children to his home out of state as permitted by subsequent modification order
determining reasonable rights of visitation until he was current in all child support payments.
OPINION
Per Curiam:
Appellant assigns error in all provisions of an Order Modifying Decree of Divorce, by
which the lower court: (1) reduced respondent's support obligations for each of the parties'
minor children, from $25.00 per week to $17.50 per month; (2) ordered respondent to pay
$25.00 monthly toward discharge of arrearages in child support; and (3) determined that the
reasonable rights of visitation originally granted respondent should include four weekends
each year at Las Vegas, as well as two weeks during the summer and alternating Christmas
and Easter holidays in Minnesota, respondent to pay all costs of exercising these privileges.
[Headnote 1]
The only change in respondent's circumstances, so far as the record reveals, is that he left
California where his monthly salary was $1,200 plus an auto allowance and a full expense
account, to live near his parents in Minnesota where his salary is $1,200 with no expense
account benefits. The only changes in appellant's circumstances are that she is now married to
a casino dealer, and that, since her remarriage, her father no longer permits her to receive
income from a trust he established for the benefit of the parties' children. In these
circumstances, the lower court abused its discretion in reducing respondent's child support
obligations. Cf. Wicker v. Wicker, 85 Nev. 141, 451 P.2d 715 (1969).
[Headnote 2]
While the court's order fixing respondent's visitation rights was supported by the evidence,
we do not believe he should be allowed to transport the children away from Las Vegas until
he is current in all child support payments required by the Decree of Divorce as originally
entered; for, to permit this, would in effect allow him to expend money for his own purposes
that he should properly channel to the support of his children.
When the lower court ordered payments on arrearages, we do not understand that it limited
appellant's rights in any way; thus, we do not perceive how appellant was aggrieved by that
portion of the court's order.
Accordingly, insofar as the order appealed from reduced respondent's support obligations,
it is reversed. In all other respects, the order is affirmed; provided, that no effect shall be
given to provisions allowing respondent to transport the children away from Las Vegas, at
any time respondent is not current in the discharge of support obligations heretofore or
hereafter accruing.
In accord with NRS 18.060, appellant is allowed her costs on appeal, upon proper filing of
a cost bill.
____________
87 Nev. 338, 338 (1971) Clark Sanitation v. Sun Valley Disposal
CLARK SANITATION, INC., a Nevada Corporation, Appellant, v. SUN VALLEY
DISPOSAL CO., INC., a Nevada Corporation, Respondent.
No. 6299
July 13, 1971 487 P.2d 337
Appeal from judgment upon jury verdict awarding damages, and from court order
annulling exclusive franchise. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action by unsuccessful bidder to set aside county's award of exclusive franchise and
permit. The district court found for plaintiff and defendant appealed. The Supreme Court,
Thompson, J., held that where advertisements for bid for exclusive garbage collection
franchise and dump site use permit required bidders to submit offers in form of proposed
contracts which county had prepared and which called for bidder to designate estimated value
of owned or leased equipment available to service contract, overestimation of value by bidder
which described each item of equipment was not such fraud as would entitle unsuccessful
bidder to set aside award of contract.
Reversed, with direction to enter judgment for the defendants below and to reinstate
the franchise and use permit.
Foley Brothers, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondent.
Where notice of entry of judgment was given on February 12 and appellant filed motion for judgment
n.o.v. on February 20 which motion was denied on April 16 but written notice of entry of order was not
filed until May 1, appeal filed April 20 was not premature. NRCP 54(b), 73(a).
2. Counties.
Where advertisements for bid for exclusive garbage collection franchise and dump site use permit
required bidders to submit offers in form of proposed contracts which county had prepared and which
called for bidder to designate estimated value of owned or leased equipment available to service contract,
overestimation of value by bidder which described each item of equipment was not such fraud as would
entitle unsuccessful bidder to set aside award of contract. NRS 244.187.
3. Fraud.
An estimate is an opinion and anestimate of value is an opinion as to value on which reasonable and
honorable men may hold differing views.
4. Counties.
Evidence failed to establish that county commissioners, who required that bids for garbage collection
franchise and dump site use permit contain valuation of equipment available to perform contract, awarded
contract in reliance on successful bidder's misrepresentation of value of equipment.
OPINION
This case concerns the award of an exclusive garbage collection franchise and dump site
use permit by the Board of County Commissioners of Clark County to Clark Sanitation, Inc.
The plaintiff, Sun Valley Disposal Co., Inc., was an unsuccessful bidder for that franchise.
Before the grant of the exclusive franchise, Sun Valley was in open competition with Clark
Sanitation in the collection of garbage in the unincorporated area of Clark County. The award
to its competitor effectively put Sun Valley out of business and precipitated this litigation.
It is the contention of Sun Valley that the Board was induced to award the franchise to
Clark Sanitation because of the latter's misrepresentations as to the value of the equipment
available for use in servicing the franchise and use permit. Consequently, it named Clark
Sanitation and the Board as defendants to this action, seeking damages from the former and a
declaratory judgment that the franchise awarded by the latter is void, and demanded a jury
trial of all claims asserted against each defendant. The court allowed the claim for damages
against Clark Sanitation to be tried to a jury, but reserved unto itself resolution of the
equitable claim for declaratory relief. This bifurcation was permissible. NRCP 39; cf.
Harmon v. Tanner Motor Tours, 79 Nev. 4, 377 P.2d 622 (1963).
[Headnote 1]
The jury favored Sun Valley with its verdict for $131,800 against Clark Sanitation, and the
court, finding no just reason for delay in entering judgment thereon, NRCP 54(b), did so.
Much later, the court signed an order annulling the franchise awarded by the Board. Clark
Sanitation has appealed from the judgment entered upon the jury verdict and from the
court order of annulment.1
the judgment entered upon the jury verdict and from the court order of annulment.
1

In 1960 the Legislature authorized any board of county commissioners to grant an
exclusive franchise to operate garbage collection and disposal services outside the limits of
incorporated cities within the county, and allowed the board, by ordinance, to regulate such
services and fix fees and rates to be charged by the franchiseholder. The board was directed to
give full consideration to any bid to supply such services and to grant the franchise on terms
most advantageous to the county and the persons to be served. NRS 244.187.
2

On June 8, 1964 the Board of Commissioners enacted Ordinance 214 which fixed the
charges for the collection, hauling and disposal of garbage and established standards.
Thereafter, the Board declared its intention to grant an exclusive franchise, and advertised for
bids. The invitation to bid required the bidders to submit their bid offers in the form of
Proposed Contracts which the county had prepared. One of the proposed contracts
concerned the collection and disposal of garbage and the other was for the maintenance and
operation of sanitary fill facilities or dump sites. The contract forms called for the bidder to
designate the estimated value of owned or leased equipment available to service the
collection of garbage and the maintenance and operation of the dump or dumps.
Clark Sanitation responded to this invitation and represented on the contract forms that it
could make available for the garbage collection and disposal franchise, owned or leased
equipment of the estimated value of $327,010.96, and for the maintenance and operation of
the dump sites, owned or leased equipment of the estimated value of $S1,200.
____________________

1
Sun Valley moved to dismiss the appeal from the judgment for damages upon the ground that it was
prematurely taken. Notice of entry of judgment was given on February 12, 1970, and the time to appeal
therefrom commenced to run. On February 20 Clark Sanitation filed a motion for judgment n.o.v. or for a new
trial thereby terminating the running of the time for appeal Rule 73(a). This motion was denied on April 16, but
written notice of the entry of the order of denial was not filed until May 1. Meanwhile, on April 20, Clark
Sanitation had filed its notice of appeal. Sun Valley contends that the notice of appeal is without legal effect
since it was filed before service of written notice of entry of the order denying the post-judgment motion. We
reject this contention summarily upon analogy to the reasoning of Culinary Workers v. Haugen, 76 Nev. 424, at
427, 357 P.2d 113 (1960). The motion to dismiss is denied.

2
The legislative authorization was permissiveany board of county commissioners may grant . . .and
probably did not constitute a grant of power not already possessed since the collection and disposal of garbage
has not been considered a public project to be let to the lowest responsible bidder after notice. Davis v. City of
Santa Ana, 239 P.2d 656 (Cal.App. 1952).
maintenance and operation of the dump sites, owned or leased equipment of the estimated
value of $81,200. The fraud and misrepresentation claimed in this case is with regard to the
mentioned estimates of value of available equipment. The unsuccessful bidder, Sun Valley,
contends that the representations as to value were grossly overstated, made with the intention
to deceive the Board and did, in fact, cause the Board to award the franchise to Clark
Sanitation.
[Headnote 2]
The thrust of this appeal by Clark Sanitation is that fraud and misrepresentation in the
procurement of the franchise was not established as a matter of law. The appellant preserved
this contention throughout by appropriate Rule 50 motions before and after verdict and
judgment. If this contention is correct we need not discuss other assigned errors, but must set
aside the judgment and annulment order and reinstate the franchise. It is our opinion that this
contention is sound.
1. The alleged misrepresentations: The burden was placed upon the plaintiff, Sun Valley,
to support its contention of fraud by clear and convincing proof. Miller v. Lewis, 80 Nev.
402, 395 P.2d 386 (1964); Tallman v. First Nat. Bank, 66 Nev. 248, 208 P.2d 302 (1949);
Gruber v. Baker, 20 Nev. 453, 23 P. 858 (1890). Although this is primarily a trial court
standard, its view of the matter is not necessarily conclusive since, upon review, we must
consider the sufficiency of the evidence in the light of that standard, Sheehan v. Sullivan, 58
P. 543, 544 (Cal. 1899), and where there exists no more than a paucity of evidence to support
the charge of fraud, we will not hesitate to reverse. Nevada Mining & Exp. Co. v. Rae, 47
Nev. 182, 223 P. 825 (1924).
[Headnote 3]
In the matter at hand the invitation to bid called only for the estimated value of owned or
leased equipment. A standard was not specified. The services of an appraiser were not
contemplated or required. The bidder's estimate of value was sufficient. An estimate is an
opinion and an estimate of value is an opinion as to value upon which reasonable and
honorable men may hold differing views. This is the basis for the frequently announced rule
that a charge of fraud normally may not be based upon representations of value. Frankfurt v.
Wilson, 353 S.W.2d 490 (Tex. 1961); Burke v. King, 56 P.2d 1185 (Okl. 1936). In a different
context Nevada has recognized that expressions of opinion as distinguished from
representations of fact, may not be the predicate for a charge of fraud.
fraud. Banta v. Savage 12 Nev. 151 (1877). There are, of course, exceptions.
Clark Sanitation's formal bid for the garbage collection and disposal franchise was
accompanied by a comprehensive letter in which each item of equipment was described (most
items being designated by year, make and model), and the value ascribed to each was
replacement value. The Board, therefore, knew, in general terms, the basis upon which the
total value of all the equipment mentioned in the bid was estimated. The same is true with
regard to the valuation of equipment available to service the sanitary fill facilities.
3

[Headnote 4]
2. The alleged reliance by the Board: Assuming intentional misrepresentations of
equipment value by Clark Sanitation, the evidence, when viewed in the light of the clear and
convincing standard, is insubstantial to show the Board's reliance thereon. Such evidence is
essential before a claim for relief is established. Royce v. Hampton, 16 Nev. 25 (1881). Four
of five commissioners voted to award the exclusive franchise and use permit to Clark
Sanitation. The fifth commissioner passed his vote. Each testified at trial. A fair summary of
their testimony is that the estimated value of available equipment was considerably less
important to their decision than was the amount of equipment, the financial stability of the
bidders, and their ability to perform.
In awarding the exclusive franchise and use permit to Clark Sanitation, the Board
apparently had in mind the statutory direction contained in NRS 244.187 to do so on terms
most advantageous to the county and the persons to be served.
Reversed, with direction to enter judgment for the defendants below and to reinstate the
franchise and use permit.
____________________

3
As to this, the total valuation was $81,200 which included, inter alia, $30,000 for 4.5 miles of partly paved
roads to the dump site. This is not equipment. However, the letter accompanying the bid disclosed this fact,
and the Board could not have been misled.
____________
87 Nev. 343, 343 (1971) State v. Luchetti
STATE OF NEVADA, Appellant, v. LEO JOSEPH LUCHETTI, JERRY LYNN KRAMER,
CALVIN LEE OLSON, PHILLIP RAYMOND SWARTZ, RICHARD RAY HAMES
and KELLY RAY KRAMER, Respondents.
No. 6358
July 13, 1971 486 P.2d 1189
Appeal from order of the First Judicial District Court, Douglas County, dismissing
information; Frank B. Gregory, Judge.
The district court suppressed physical evidence of marijuana and dismissed information
filed against 13 young people which charged them with unlawful possession of marijuana,
and the State appealed. The Supreme Court, Thompson, J., held that where defendants had
been arrested in living room and kitchen of home, some had been removed to police station
prior to search which disclosed marijuana in bedroom and living room, and record did not
disclose which defendants were present in living room at time of search of that room,
warrantless search of neither bedroom nor living room could be justified as incident to arrest
of any defendant and marijuana seized as result thereof was properly suppressed; and that
where only marijuana properly seized was found in plain view on table in living room and
record did not establish constructive possession of that substance in any defendant having
right to control thereof, dismissal was proper.
Affirmed.
Robert List, Attorney General; Howard McKibben, District Attorney, and William J.
Crowell, Jr., Deputy District Attorney, Douglas County, for Appellant.
Manoukian & Manoukian, of Zephyr Cove, and Jack Christensen, of Yerington, for
Respondents.
1. Arrest.
Where various persons were arrested in living room and kitchen, but not in bedroom, of house on charge
of possession of marijuana, there was no justification for warrantless search of bedroom. U.S.C.A.Const.
Amend. 4.
2. Arrest; Criminal Law.
Where various persons were arrested in living room and kitchen of house on charge of possession of
marijuana and some were removed to police station prior to search of living room which disclosed
additional marijuana, search could not be justified as incident to the arrest of the
absent defendants, and, where record did not disclose which arrestees were present
in the living room during the search, it could not be said that the search and seizure
was incident to the arrest of any particular, identifiable defendant, and the marijuana
so seized was properly suppressed.
disclosed additional marijuana, search could not be justified as incident to the arrest of the absent
defendants, and, where record did not disclose which arrestees were present in the living room during the
search, it could not be said that the search and seizure was incident to the arrest of any particular,
identifiable defendant, and the marijuana so seized was properly suppressed.
Where officer, approaching open front door of house, smelled what he believed to be the odor of
marijuana, and upon entering living room noticed grassy substance in plain view on table, such substance
was subject to seizure.
Where 13 young people were simultaneously arrested in living room and kitchen of private home for
possession of marijuana, in absence of the owner, and where the only marijuana lawfully seized was taken
from table in living room and record did not establish constructive possession of that substance in any
defendant having the right to control thereof, all the persons arrested were entitled to dismissal of
information filed against them charging unlawful possession of marijuana.
OPINION
This appeal by the State is from an order of the district court dismissing the information
filed against the respondents which charged them with the unlawful possession of marijuana.
Before dismissal, that court had granted the defendants-respondents' motion to suppress the
physical evidence of marijuana seized by the arresting officer. We affirm the dismissal and
the interlocutory suppression order.
1

The relevant facts are these: On March 9, 1970, thirteen young people, ages sixteen to
twenty, were simultaneously arrested at a private home for the possession of marijuana. Some
two hours earlier the arresting officer had received an anonymous tip that a pot party was
there in progress. He forthwith made an initial check of the house, noticed several cars and
youngsters there, and left to summon assistance. He did not attempt to secure warrants for
arrest and search. Upon his return two hours later he approached the house and as he reached
the open front door he smelled what he believed to be the odor of marijuana. Cf. Zampanti v.
Sheriff of Clark County, 86 Nev. 651, 473 P.2d 386 (1970). He entered the living room,
noticed a grassy substance on the table in front of the sofa, and immediately placed all
occupants under arrest and searched them individually. Cf. Woerner v. State, S5 Nev. 2S1
____________________

1
Our decision in this case also disposes of cases Nos. 6359, 6360, 6361 and 6362 involving juvenile
defendants who were arrested and charged with the same crime arising out of the same incident.
living room, noticed a grassy substance on the table in front of the sofa, and immediately
placed all occupants under arrest and searched them individually. Cf. Woerner v. State, 85
Nev. 281, 453 P.2d 1004 (1969). When arrested, some of the young people were in the
kitchen, some in the living roomwho was where is not disclosed. None was smoking
marijuana and the search of each produced nothing incriminating. None was in actual
possession of marijuana. Some of the youngsters were then transported to the station and
booked. The arresting officer searched the entire house in the absence of some but not all of
the arrestees and seized from the bedroom and living room substances later identified by an
expert to be marijuana. The owner of the home was absent when this entire incident occurred.
[Headnotes 1, 2]
The officer had no justification for his warrantless search of any room other than that in
which the arrest occurred. Chimel v. California, 395 U.S. 752 (1969). Accordingly, the
incriminating evidence seized in the bedroom was properly suppressed for none of the
defendants was arrested in that room. Moreover, since the record does not disclose the
arrestees who were present in the living room and those who were absent when the search and
seizure of evidence in that room took place, it cannot be said that the search and seizure was
incident to the arrest of any particular, identifiable defendant. It is equally clear that the search
and seizure was not incident to the arrest of those youngsters who had already been
transported to the station. Obviously, those absent youths could not have endangered the
officer's safety, or have concealed or destroyed evidence. The underlying rationale is
expressed in Chimel. When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the latter might seek to use in
order to resist arrest or effect his escape. Otherwise, the officer's safety might well be
endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee's person in order to
prevent its concealment or destruction. And the area into which an arrestee might reach in
order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun
on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting
officer as one concealed in the clothing of the person arrested. There is ample justification,
therefore, for a search of the arrestee's person and the area within his immediate
control'construing that phrase to mean the area from within which he might gain
possession of a weapon or destructible evidence.
his immediate control'construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other
than that in which an arrest occursor, for that matter, for searching through all the desk
drawers or other closed or concealed areas in that room itself. Such searches, in the absence
of well-recognized exceptions, may be made only under the authority of a search warrant. The
adherence to judicial processes' mandated by the Fourth Amendment requires no less. Id. at
762, 763.
[Headnotes 3, 4]
Consequently, all evidentiary items produced by the officer's search of the home were
properly suppressed. However, the grassy substance in plain view on the table in the living
room was subject to seizure, Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969), and was
constitutionally admissible evidence. Although admissible, the record does not establish
constructive possession of that substance in any defendant having the right to control the
contraband. People v. Showers, 440 P.2d 939 (Cal. 1968). Accordingly, the dismissal was
correctly entered.
Affirmed.
Batjer, J., concurring:
I agree that all the items suppressed were properly suppressed and that a dismissal must be
granted, but I cannot agree that the dismissal was correctly entered by the trial court. The
proper result was reached, but for the wrong reason. Wyatt v. State, 86 Nev. 249, 468 P.2d
338 (1970).
The district court judge said: I think the crux of the matter is that there was evidence
seized without any warrant issued at any time. It is apparent that he granted the motion to
suppress because he was of the opinion that a search warrant should have been obtained
before the officers returned and entered the residence, and because that procedure was not
followed, the entire subsequent search and seizure was illegal.
Within the authority of Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969), the officers
had a duty, upon smelling the odor of marijuana smoke coming from the house, to enter the
open door, and upon gaining entry and observing a marijuana like substance on the living
room table to seize that evidence and arrest everyone in that room for possession of narcotics.
An immediate search of those arrested and a search of their immediate surroundings was
permissible. Chimel v. California, 395 U.S. 752 (1969). The authority of Woerner does not
permit the blanket arrest of persons in other parts of the house. Here the record is silent about
the physical location of the arrestees at the time of arrest; therefore the dismissal as to all
defendants must be affirmed, but not for the reason announced by the trial court.
I respectfully dissent.
The principal issue presented for our consideration on this appeal is centered about the
admissibility in evidence of marijuana and other alleged narcotic paraphernalia that were
seized when the respondents were arrested in a Kingsbury Grade, Douglas County, residence
on the charge of the unlawful possession of narcotics. All the respondents, adults and
juveniles, filed in the appropriate form in the court below, timely motions to suppress the
seized evidence. After the district judge ruled in their favor in ordering the evidence
suppressed, they moved to dismiss the complaint, and the district judge dismissed the
complaints against all the respondents. The State has appealed from the lower court's orders
suppressing the evidence and dismissing the complaints. I would reverse and remand all the
cases to the lower court for trial.
1. The Facts.
The Sheriff of Douglas County received an anonymous telephone call on March 9, 1970,
that, If you want to bust a pot party, go to 187 Pine [Kingsbury Grade area, Tahoe
Township]. The Sheriff directed one of his deputies, John Allmett, to drive by the premises
and conduct an eyeball investigation. The deputy did so, and he reported that there were
numerous persons entering and leaving the house and that five to eight cars were parked in
the street near the home. The deputy returned to the area with several other officers about 2
hours later and observed the same activity underway. The officers parked their police cars,
which were marked as such, and Allmett and another officer proceeded on foot to the
premises. Immediately they noticed two boys leave the building. Upon seeing the officers, the
boys promptly retreated to the house, leaving the front door open. As the officers approached
the steps leading to the front door, Allmett detected a strong odor of burning marijuana.
Without further ado, he walked through the open doorway and told all therein to freeze.
The respondents did so.
In the living room, which was in the immediate area of the entrance way, Allmett saw on a
small table in open view a grassy substance that he recognized as marijuana. He placed all the
respondents under arrest for the unlawful possession of narcotics, gave them the Miranda
warning, and then searched the respondents and the premises. In the immediate room, which
was the living room, the officer found in plain view the following: On a table in front of a
sofa, an amount of grassy substance that the officer recognized as marijuana.
1
In front of the
sofa and in plain view he also found a brown wooden smoking pipe, two containers of
partially used cigarette papers, burnt matches, burnt ashes, and used cigarette papers.
Underneath and near the front part of the sofa, the officer found two plastic bags containing a
grassy substance and, next to the two bags, two cigarettes.
2
When the officer made this
recovery, one of the occupants in the room volunteered the following:
Q [by Deputy District Attorney Crowell] While you were searching the premises, did
anyone makeany one of these people inside, make a statement on any of the other people
inside?
A [by Officer Allmett] There was one statement made by . . . [juvenile's name omitted].
Q What did he say?
A As I was recovering the evidence from underneath the sofa there in the living room,
that would be the two cigarettes and the plastic Baggie containing the marijuana, he made a
statement to his companions, 'They've found it,' in a very surprised voice."
____________________

1
Excerpt from transcript of preliminary hearing:
Q [by Deputy District Attorney William J. Crowell, Jr.] What indications came to you that there was
marijuana present at that time?
A [by Deputy Sheriff John Allmett] Well, the burning odor became intensely stronger in the living room.
Q That's the burning odor of marijuana?
A I believed it to be marijuana, yes.
Q What else did you do then?
A Well, I made the preliminary examination and on the table in front of the sofa there, in the southwest
corner, I found an amount of grassy residue believed to be marijuana.

2
A [by Officer Allmett] Yes, there was two plastic Baggies, one inside of the other. The inside one
contained a small amount of a green, grassy substance; and it was found underneath the front portion of the sofa
in the living room.
Q Any other places?
A Then, located right next to the Baggies underneath the sofa, there was two sloppily made, hand-rolled
cigarettes, containing green, grassy substance.
Q which you believed to be marijuana?
A Yes, I did.
statement to his companions, They've found it,' in a very surprised voice.
The officer also found in the jacket of one of the occupants, in the living room, a metal
Sucrets container that held marijuana.
3
Additionally, the officer found in the bedroom
leading off the living room the following:
A [by Officer Allmett] Getting to the bedroom, situated to the nearest balcony, the
balconyliving room area, one of the bureau drawers, there was approximately a lid of
marijuanaa lid of a grassy substancein a plastic bag; and, then, behind the door to the
bedroom, the same bedroom, located in the small plastic freezer bucket, there was a kind of
brownish-green, weed-like material, believed to be tailings from manicured marijuana; . . .
The officer carefully marked and marshaled the evidence so that it could be examined by a
narcotics expert. It was so examined, and the expert testified at the hearing as follows:
Q [by Mr. Crowell] Would you state your name, please?
A Budd F. Rude.
Q Where do you reside, Mr. Rude?
A Carson City, Nevada.
Q And how long have you resided in this area?
A In this area, approximately ten years.
Q Are you employed, and, if so, where?
A State of Nevada, Department of Highways, Director of Criminalistics Division.
Mr. Christensen [An attorney for respondents]: Your Honor, the defense is prepared to
stipulate as to Mr. Rude's technical qualifications and ability to make an analysis of
marijuana.
The Court: Thank you, counsel.
Mr. Manoukian [An attorney for respondents]: For preliminary examination purposes,
again.
Mr. Crowell: I'll accept your stipulations.
By Mr. Crowell:
Q Mr. Rude, I'm going to call your attention to what has heretofore been marked Exhibits
J and K, and ask you if these were the packages which I asked you to deliver to Mr.
____________________

3
Q Did you find anything else?
A Some more grassy substance found in the pocket of a jacket found lying on the sofa.
. . .
Q And what did you find in the pocket of that coat?
A There was a Baggieplastic Baggiecontaining a small amount of a grassygreen grassy substance. The
Baggie was in turn contained in a metal Sucrets container.
were the packages which I asked you to deliver to Mr. Allmett earlier here.
A Yes, they are.
Q You will note that they have been opened. Would you tell the Court when you first
received them and from whom?
A It was the 18th of March 1970, from John Allmett, at the Douglas County Courthouse.
Q From the time which you received them from Mr. Allmett, to the time you delivered
them here in Court, were they in your possession?
A Yes, they were.
Q In your sole possession?
A That's correct.
Q Except for the purposes of analysis of the items contained, have they in any way been
tampered with, adulterated or otherwise substituted, any of the items?
A No, sir.
Q You can state that the items presently here in court are in the same condition, save and
except for the experimentation of your own, as when you received them from Mr. Allmett?
A That's correct.
Q Directing your attention to Exhibit J, Mr. Rude, and the packages contained therein, I
would ask if you performed an analysis of the items therein?
A Yes, I did.
. . .
Q All right. In your expert opinion, with regard to your qualifications as an expert, would
you please state what you found with regard to the various items in that exhibit?
A There's, I think, eleven or twelve items in here. You want me to take them item by
item?
Q Yes, please.
Would you state the number of the item?
A Yes. Let's see. Item 1 contains a small, black pipe. This was tested for the presence of a
residue found to be cannabis sativa or marijuana, and it was found to be present.
Item 3 was another larger wood pipe with a portion of the stem missing. This again was
tested and found to contain the presence of cannabis sativa or marijuana.
Item 4 contained a plastic bagor two, actually, plastic bags, one inside the other; and
contained approximately one gram of plant material from the plant cannabis sativa or
marijuana.
Item 5, a plastic bag, containing two handmadehomemade cigarettes, which were
found to contain cannabis sativa or marijuana.
. . .
Item 8 was another brown pipe. This was found to have been used for smoking marijuana
or cannabis sativa.
Item 9 was a small piece of tinfoil or aluminum foil that contained some ashes, and so
forth, remains of a burnt plant material, and this was found to be from the plant cannabis
sativa or marijuana.
Item 11, let's see, this had a matchbook torn in half and some cigarette papers, burnt and
not burnt, and some green grassy material; and that was found to be from the plant cannabis
. . .
Item 13 was a plastic Baggie, containing 20.5 grams of plant material from the plant
cannabis sativa or marijuana.
. . .
Q All right. Now, I direct your attention to Exhibit K, and ask you to go through that
exhibit.
A Let's see. Item 16 was a small plasticwhite plastic box, containing the remains or a
cigarette butt of a homemadehandmade cigarette that contained some plant material from
the plant cannabis sativa or marijuana.
Item 19 was a small plastic bag and some green plant material. It was found to be 0.3
grams of material from the plant cannabis sativa or marijuana.
Item 20 is a small, I guess you call it, a homemade pipe. It was several pipe fittings and a
plastic tube attached to it. This was found to have a residue from the plant cannabis sativa
present.
Item 22 was a blue plastic box, containing several cigarettesburnt cigarette butts; and
these were found to have the remains of material from the plant cannabis sativa or marijuana.
Item 23 was a red and white plastic tumbler. It contained some burnt matches and some
ashes. Some remains of the plant material cannabis sativa were found in that.
Item 24 was a metal Sucrets box, containing a smallor a plastic bag that in turn
contained 6.7 grams of the plant material that was determined to be from the plant cannabis
Q All of these determinations were your expert opinion? "A Yes, they are.
A Yes, they are.
Mr. Crowell: I have no further questions.
2. The Arrest.
The respondents have argued on this appeal that their arrests were unlawful and that,
therefore, the officer's search was not permissible, and hence the evidence obtained is not
admissible. The majority opinion sustaining the respondents' position is primarily based upon
the majority's interpretation of the rule announced in Chimel v. California, 395 U.S. 752
(1969). In that case, the arresting officers had a warrant for Chimel's arrest. They had time to
seek a warrant to search his house. Rather than do so, they waited until Chimel arrived home,
then arrested him and proceeded to rummage through his entire residence. The High Court
simply said that such a warrantless search was unreasonable and not permissible under the
Fourth and Fourteenth Amendments, that in such cases the search must be limited to a search
of the arrestee's person and the area within his immediate control, and that in any event it may
not go beyond the room where the arrest takes place.
4
I seriously question whether the rule
of Chimel is applicable to the seizure of contraband in this case. Many of the items seized
here were recovered minus any search, as they were within the plain view of the arresting
officer. Chimel in no way overruled the Plain View Doctrine that contraband found within the
sight of the arresting officer may be seized. A recent narcotics case decided by the United
States Ninth Circuit Court of Appeals has so held. In United States v. Jiminez-Badilla, 434
F.2d 170 (9th Cir. 1970), the officer, without a warrant for the defendant's arrest, knocked on
the defendant's motel door and arrested him, at which time he saw a shirt draped over a chair.
Protruding from the shirt pocket was a rubber contraceptive visibly stuffed with powder,
which the officer observed to be heroin. The court said, 434 F.2d at 173:
Holding, as we do, that the arrest was upon probable cause and, therefore, valid, the only
further question is whether the two seizures incidental to the arrest(1) the seizure of the
powder stuffed rubber protruding from the shirt, and (2) . . .were unreasonable under the
circumstances.
Appellant contends that they were unreasonable within the meaning of Chimel v.
California, [citation].
As to the first item, the record is to the effect that its seizure required no search; that it
was in the plain view of an officer who had the right to be in the position from which the
view was made; that it was in the immediate presence of appellant; that it reasonably
appeared to contain contraband narcotics.
____________________

4
The State concedes that only those items seized in the living room are admissible under the Chimel doctrine.
view was made; that it was in the immediate presence of appellant; that it reasonably
appeared to contain contraband narcotics.
In United States v. Avey, 428 F.2d 1159, 1164 (9th Cir. 1970), this court had occasion to
quote from Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968),
after considering it in the light of Chimel:
It has long been settled that objects falling in the plain view of an officer who has a
right to be in the position to have that view are subject to seizure and may be introduced
in evidence.'
Under the circumstances we are of the opinion that the seizure of the contraband was not
unreasonable within the meaning of Chimel. (Emphasis added.) See also United States v.
Thweatt, 433 F.2d 1226 (D.C.Cir. 1970).
The basic test of the lawfulness of the search remains the same as before Chimel, namely,
one of reasonableness. In Chimel, the High Court said, 395 U.S. at 762:
Only last Term in Terry v. Ohio, 392 U.S. 1, we emphasized that the police must,
whenever practicable, obtain advance judicial approval of searches and seizures through the
warrant procedure,'. . . and that [t]he scope of [a] search must be strictly tied to and justified
by the circumstances which rendered its initiation permissible.' Footnote omitted; brackets
in original.)
In the instant case, for the reasons stated below, there was no opportunity to obtain a
search warrant prior to the arrest of the respondents because the officer could not have
presented to a magistrate an affidavit showing probable cause for the issuance of a search
warrant. It was not until the officer smelled the odor of burning marijuana coming through the
open door that he had probable cause to believe a crime was being committed within the
home. The record is clear that the officer was able to identify the odor of burning marijuana.
5

____________________

5
Q [by Mr. Crowell] And what did you do then, please?
A [by Officer Allmett] We approached the residence, and [Officer] John Brown and
myself, as we were approaching the residence [187 Pine Drive], met two male subjects
emerging from the house itself.
. . .
Q What did you do after meeting these two gentlemen?
A Well, I proceeded to the front door of the house, following the subjects. They were
going back into the party. They entered the front door.
Q Pardon?
A They entered into the front door, left it open. John Brown The respondents in their
briefs have argued that their arrests were unlawful for the reasons that I shall discuss
under their enumerated headings.
The respondents in their briefs have argued that their arrests were unlawful for the reasons
that I shall discuss under their enumerated headings.
A. The Absence of an Arrest or Search Warrant.
First, the respondents argued that the officers were duty bound to obtain a warrant for their
arrest or search before investigating the scene. Respondents based this theory on the
anonymous phone call received by the sheriff. The phone call alone would have been
insufficient for the issuance of a warrant. Such warrants may not issue unless there exist
reasonable grounds for their issuance. Draper v. United States, 358 U.S.
____________________
and myself, prior to entering the house, as we neared the front door, smelled a strong burning odor we believed
to be marijuana.
Q How far away from the door were you at that time?
A Right at the door.
Q Mr. Allmett, how much experience have you had with the identification of marijuana in your past?
A Quite a bit.
Q Would you state for the Court what that included, please?
A Well, past experience, physical appearance, the burning smell of marijuana on numerous occasions.
Q How many times in your experience as a police officer, or otherwise, have you had occasion to come
across marijuana or the burning thereof?
A Numerous occasions.
Q Can you give us an estimate? Ten thousand, a million?
A I'd say, at least a couple of hundred.
Q Have you had any formal training or schooling and education in the identification of marijuana?
A Yes, I have.
Q How much of that have you had?
A The identification of marijuanait's probably ten hours altogether.
Q Have you participated in any arrests for the possession of marijuana, based on the smell of it?
A Prior to this incident? Yes, I have.
Q About how many times?
A I'd probably estimate maybe about a dozen.
Q Following up what you thought you had smelled, did you confirm what you found as marijuana?
A Yes.
Q Who usually does your confirming for you?
A A qualified chemist, usually either the Nevada State Highway Chief Chemist, Budd Rude, or Lloyd
Whalen, Nevada Food & Drug, in Reno.
Q Did you believe yourself competent to distinguish the odor of burning marijuana?
A Yes, I did.
Q It was on the basis of this experience and your own competency that you recognized it as burning on this
evening?
A I did.
307 (1959). An uncorroborated phone tip from an anonymous source is not sufficient to
establish the reasonableness required. The reasons are quite obvious. Additionally, it is
necessary to know something of the circumstances constituting the basis for the informer's
call, his reliability, and other relevant factors that go to show that probable cause exists for
the issuance of the warrant. Spinelli v. United States, 393 U.S. 410 (1969).
B. The Officers' Investigation.
Respondents next complained that, when the officers approached the premises at 187 Pine
Street, they became in fact trespassers, and their presence was unlawful. I would reject this
contention. The officers had reasonable grounds to be on the premisesnamely, to
investigate the commission of a crime. Davis v. United States, 327 F.2d 301 (9th Cir. 1964).
Assuming arguendo they were in fact trespassers, even so the constitutionality of the search
and seizure would not be affected, for the test is one of reasonableness in the light of all the
circumstances. People v. Terry, 454 P.2d 36 (Cal. 1969).
C. Lack of Probable Cause.
Respondents next urged that the officers did not have probable cause to determine that a
crime was being committed and therefore their arrests were improper. The officers observed
the traffic leaving and entering the home, and as they approached the open front door they
detected a strong odor of burning marijuana. The officers had probable cause to believe that a
crime was being committed, and the ensuing arrests were proper. People v. Peterson, 88
Cal.Rptr. 597 (Cal.App. 1970); People v. Anderson, 88 Cal.Rptr. 4 (Cal.App. 1970). Cf.
Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969).
D. The Unannounced Entry.
Finally, respondents challenged the legality of their arrests on the assertion that the officers
had a duty to announce themselves before entering the home through the open doorway. Ker
v. California, 374 U.S. 23 (1963). In Ker, the High Court held that the guaranties of the
Fourth Amendment required announcement of entry before the resulting search could be
considered reasonable, except in unusual circumstances.
6
Our own NRS 171.138 provides
that a police officer may, after seeking admittance to a house to make an arrest, make
forcible entry if an offense is being committed in the building.7 In this case, no
announcement was made before entry, and it would have been senseless to have done so.
____________________

6
For interesting discussions of the no knock issue, see Blakey, The Rule of Announcement and Unlawful
Entry: Miller v. United States and Ker v. California, 112 Univ. of Pa. L.Rev. 499 (1964); Unannounced Entry
to Search: The Law and the No-Knock' Bill (S. 3246), 1970 Wash. Univ. L.Q. 205 (1970); Announcement in
Police Entries, 80 Yale L. Jnl. 139 (1970).
may, after seeking admittance to a house to make an arrest, make forcible entry if an offense
is being committed in the building.
7
In this case, no announcement was made before entry,
and it would have been senseless to have done so. Obviously the occupants had been made
aware of the approach of the officers as soon as the boys returned to the house. The front door
was open, and the odor of burning marijuana was coming from the house. This was a case
where, as we say in the law, time was of the essence, and the circumstances did not afford the
officers the formalities of announcing their intention to walk across the door stoop. A rather
recent case of the United States Ninth Circuit Court of Appeals has held that an entry through
an open door does not constitute such a breaking as to require an announcement before
entry. Reyes v. United States, 417 F.2d 916 (9th Cir. 1969).
Our sister state of California has a statute similar to our NRS 171.138, supra: Section 844
of the California Penal Code.
8
The California courts have refused to require announcement
of entry in open-door cases under various circumstances. See People v. Peterson, supra;
People v. Anderson, supra; People v. Boone, 82 Cal.Rptr. 398 (Cal.App. 1969). I believe that
an entry via an open door without prior announcement is permissible where an officer acting
in good faith has reasonable grounds to believe that a demand for admittance may increase his
peril, or frustrate an arrest, or permit the destruction of evidence, or where, as in the instant
case, a crime is being committed beyond the open door but within the purview of the officer's
senses. Cf. Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967).
I would, therefore, have ruled that, since respondents' arrests were in my opinion lawful, so
was the resulting seizure of evidence. I would reverse and remand all the cases for further
proceedings consistent with the views expressed in this dissent.
____________________

7
NRS 171.138:
To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break
open a door or window of the house in which the person to be arrested is, or in which there is reasonable
grounds for believing him to be, after having demanded admittance and explained the purpose for which
admittance is desired.

8
Cal. Penal Code 844 (West 1970):
To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break
open the door or window of the house in which the person to be arrested is, or in which they have reasonable
grounds for believing him to be, after having demanded admittance and explained the purpose for which
admittance is desired.
____________
87 Nev. 357, 357 (1971) Carson v. Sheriff
J. D. CARSON, Appellant, v. SHERIFF, CLARK
No. 6479
July 13, 1971 487 P.2d 334
Appeal from denial of a writ of habeas corpus, Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court, Gunderson, J., held, inter alia, that former hit-and-run statute did not
require report to sheriff of collisions occurring within incorporated city; thus record showing
collision of automobile with bicycle in Las Vegas did not establish probable cause for charge
of failure to report to sheriff, but such allegation was surplusage in indictment also charging
failure to stop and render assistance, and if defendant deemed the same prejudicial, he could
move to have it stricken.
Affirmed.
James L. Buchanan II, of Las Vegas, for Appellant.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, Charles
1. Automobiles; Indictment and Information.
Former hit-and-run statute did not require report to sheriff of collisions occurring within incorporated
city; thus record showing collision of automobile with bicycle in Las Vegas did not establish probable
cause for charge of failure to report to sheriff, but such allegation was surplusage in indictment also
charging failure to stop and render assistance, and if defendant deemed the same prejudicial, he could
move to have it stricken. NRS 173.085, 484.010, 484.219, 484.223.
2. Criminal Law.
Where complaint charging defendant with hit-and-run driving was dismissed for want of probable cause,
return, some six months later, of indictment on identical charges did not entitle defendant to discharge for
want of speedy trial. U.S.C.A.Const. Amend. 6.
OPINION
A complaint charging appellant with violating NRS 484.010 having been dismissed by a
Justice of the Peace for want of probable cause, after preliminary hearing, some six months
later the Grand Jury indicted appellant on identical charges.1 On appeal from the Eighth
Judicial District Court's denial of habeas corpus, he contends: {1) that "the State did not
show probable cause to hold the appellant to answer the charges contained in the Grand
Jury indictment"; and {2) that "the State failed to give the defendant a speedy trial as
required by the Constitution of the United States."
later the Grand Jury indicted appellant on identical charges.
1
On appeal from the Eighth
Judicial District Court's denial of habeas corpus, he contends: (1) that the State did not show
probable cause to hold the appellant to answer the charges contained in the Grand Jury
indictment; and (2) that the State failed to give the defendant a speedy trial as required by
the Constitution of the United States.
1. Appellant bases his first contention in part on the fact that the collision occurred in Las
Vegas, an incorporated city, urging that therefore there was no probable cause to charge him
with failure to make a report of such collision to the Sheriff.
NRS 484.010, which was repealed subsequent to the incident in question (Stats. Nev.
1969, ch. 675, p. 1510), subject to our general savings statute (NRS 169.235), commanded
several distinct acts by the driver of any vehicle striking a person or colliding with a vehicle
containing a person.
2
NRS 484.010(1) required that the driver immediately cause such
vehicle to stop," and also that he "render to the person struck, or the occupants of the
vehicle collided with, all necessary assistance."
____________________

1
INDICTMENT

__________________

(Hit & Run Driving
FelonyNRS 484.010)
STATE OF NEVADA }
}ss:
COUNTY OF CLARK }
The Defendant above named, J. D. CARSON, is accused by the Clark County Grand Jury of the crime of
HIT & RUN DRIVING (FelonyNRS 484.010) committed at and within the County of Clark, State of Nevada,
on or about the 11th day of February, 1969, as follows:
did then and there wilfully, unlawfully and feloniously, while driving a 1966 Oldsmobile two-door automobile,
bearing 1969 Nevada License No. C-64235, in the 3500 block on East Charleston Boulevard in the vicinity of
Sacramento Street, Las Vegas, Clark County, Nevada, strike and collide with an unlicensed Schwinn Bicycle,
ridden by JOHN POCHINSKI, damaging said vehicle and injuring the rider thereon, and did not thereafter stop
his vehicle and render all necessary assistance to the rider on the bicycle JOHN POCHINSKI, or make a report
of such collision to the Sheriff of the County in which such collision occurred.

2
484.010 Accidents involving persons or vehicles containing persons: Duty to give information and render
aid; penalties.
1. Whenever an automobile, motorcycle or any other vehicle whatever, regardless of the power by which
the same is drawn or propelled, strikes any person or collides with any vehicle containing a person, the driver of
such vehicle and all persons in such vehicle who have or assume authority over such driver shall immediately
cause such vehicle to stop, and shall render to the person struck, or the occupants of the vehicle collided with, all
necessary assistance, including the carrying of such person or occupant to a physician or surgeon for
vehicle to stop, and also that he render to the person struck, or the occupants of the vehicle
collided with, all necessary assistance. NRS 484.010(3) required that he report the collision
to specified law enforcement authorities. Failure to perform any of these acts was a separate
offense. People v. Steele, 280 P. 999 (Cal.App. 1929); People v. Hoenschle, 22 P.2d 777
(Cal.App. 1933). NRS 484.010(4) provided that all such violations were gross misdemeanors;
however, if physical injuries were involved, violations of NRS 484.010(1) were made
felonies by NRS 484.010(5).
[Headnote 1]
Strictly construed, NRS 484.010(3) did not require a report to the Sheriff of collisions
occurring within an incorporated city; thus, the record does not establish probable cause for
a charge of failure to report to him. This allegation may and should be disregarded as
surplusage. State v. Lawry, 4 Nev. 161 (1868); State v. Harkin, 7 Nev. 377 (1872); State v.
Collyer, 17 Nev. 275 (1883); State v. Buralli, 27 Nev. 41, 71 P. 532 (1903). If appellant
deems such surplusage prejudicial, he may move to have it stricken under NRS 173.085.
2. In regard to his first contention, appellant also has raised questions concerning the
extent to which knowledge of injury is a requisite element of offenses under NRS 484.010(1).
As neither party has focused attention on the peculiar language of NRS 4S4.010, and as we
regard the evidence ample to show probable cause under any construction of our former
statute, we do not decide such questions.3
____________________
medical or surgical treatment, if such treatment be required, or if such carrying be requested by the person
struck, or the occupant of the vehicle struck.
2. Such driver and the person having or assuming authority over such driver shall further give to the
occupants of such vehicle, or such person struck, the number of his vehicle, the name of the owner thereof, and
the name of the passenger or passengers in each vehicle at the time of such striking or collision.
3. As soon as possible, every such driver shall make a full report of the collision, with all details and
circumstances thereof, to the sheriff of the county in which the collision occurred, and to the nearest office of the
Nevada highway patrol or office of a duly authorized police authority, or, if such a collision occurs within an
incorporated city, to the chief of police of the city.
4. Except as otherwise provided in subsection 5, any person violating any of the provisions of this section
shall be guilty of a gross misdemeanor.
5. If a person is struck and physically injured or if an occupant of a vehicle collided with is physically
injured and the driver of the vehicle so striking and injuring the person or colliding with such vehicle fails to
stop and render assistance as required by subsection 1, such driver and all persons in such vehicle who have or
assume authority over such driver shall be punished by imprisonment in the state prison for not less than 1 year
nor more than 10 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
of NRS 484.010, and as we regard the evidence ample to show probable cause under any
construction of our former statute, we do not decide such questions.
3

Of course, we do not reach the question of whether the evidence is sufficient to support a
conviction [cf. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969)], or whether certain
evidence received by the Grand Jury might be suppressed for Constitutional reasons [cf. Cook
v. State, 85 Nev. 692, 462 P.2d 523 (1969)], or whether the indictment may be subject to
attacks other than for want of probable cause to support it.
[Headnote 2]
3. Appellant's Constitutional complaint is totally based on references to Maes v. Sheriff,
86 Nev. 317, 468 P.2d 332 (1970), and Klopfer v. State of North Carolina, 386 U.S. 213, 18
L.Ed.2d 1, 87 S.Ct. 988 (1967), neither of which relate to delay in charging a criminal
offense. Authorities of substantially more significance have neither been cited, nor discussed.
4
If appellant presents no argument or authorities in support of an alleged error in the court
below, this court will
____________________

3
The District Attorney has discussed this case as if NRS 484.219 and 484.223 were concerned, although
these statutes were adopted after the occurrence in question.

4
Although we have said [o]ur statutory law specifying ties to govern the progress of a criminal case remains
as an appropriate guide to be used in resolving a speedy trial issue [Stabile v. Justice's Court, 83 Nev. 393, 432
P.2d 670 (1967)], and although a person not arrested or formally charged with a crime has not consider the
assignment, unless generally been held not to be an accused within the meaning of the Sixth Amendment
[see, Nickens v. U.S., 323 F.2d 808 (D.C.Cir. 1963); Oden v. U.S., 410 F.2d 103 (5th Cir. 1969); Harlow v.
U.S., 301 F.2d 361 (5th Cir. 1962); Bruce v. U.S., 351 F.2d 318 (5th Cir. 1965); Mack v. U.S., 326 F.2d 481
(8th Cir. 1964)], an untoward and prejudicial delay in charging an offense may arguably constitute deprivation
of due process [see, Ross v. United States, 349 F.2d 210 (D.C.Cir. 1965); Woody v. U.S., 370 F.2d 214
(D.C.Cir. 1966); Powell v. U.S., 352 F.2d 705 (D.C.Cir. 1965); Jackson v. U.S., 351 F.2d 821 (D.C.Cir. 1965);
Scott v. State, 84 Nev. 530, 444 P.2d 902 (1968)].
In his concurring Opinion in Dickey v. Florida, 398 U.S. 30, 26 L.Ed.2d 26, 90 S.Ct. 1564 (1970), Justice
Brennan notes that [w]ith some exceptions, it has been held that the right to speedy trial does not apply to
delays that occur before the defendant's arrest or indictment, but collects some contrary authority in a footnote.
398 U.S., at 44. At the conclusion of his Opinion, Justice Brennan notes that [a]rguments of some force can be
made that the guarantee attaches as soon as the government decides to prosecute and has sufficient evidence for
arrest and indictment. . . . 398 U.S., at 56.
Before enunciating the effect of such authorities, and the validity of such arguments, we prefer to wait until
we are favored with briefs marshaling them in relation to the facts of a given case.
not consider the assignment, unless the error is so unmistakable that it reveals itself by a
casual inspection of the record. Allison v. Hagan, 12 Nev. 38, 42 (1877); Gardner v.
Gardner, 23 Nev. 207, 45 P. 139 (1896); Candler v. Ditch Co., 28 Nev. 151, 80 P. 751
(1905); Riverside Casino v. J. W. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964); Smithart v.
State, 86 Nev. 925, 478 P.2d 576 (1970). We have reviewed the record in the light of our
conceptions of applicable law, and have found no error in the lower court's determination that
appellant is not entitled to discharge for want of a speedy trial.
Affirmed.
____________
87 Nev. 361, 361 (1971) Kinsey v. Sheriff
THURMAN LEE KINSEY, Appellant, v. SHERIFF,
WASHOE COUNTY, NEVADA, Respondent.
No. 6554
July 13, 1971 487 P.2d 340
Appeal from order of the Second Judicial District Court, Washoe County, denying
application for writ of habeas corpus; Grant L. Bowen, Judge.
The district court denied pre-trial petition for writ of habeas corpus challenging grand jury
indictment on grounds of insufficient evidence, and defendant appealed. The Supreme Court
held that evidence presented to grand jury that defendant was registered guest at motel and
sole known occupant of motel room for more than a month and that, upon nonpayment of the
rent, the management locked the room and, upon unlocking the room two days later, found
marijuana in one of the dresser drawers was sufficient to support return of indictment
charging defendant with possession of narcotics.
Affirmed.
Melvin Schaengold, of Reno, for Appellant.
Robert List, Attorney General, of Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Habeas Corpus.
On appeal from denial of pre-trial habeas corpus, the sole function of the Supreme Court is to determine
whether all of the evidence received at the preliminary hearing, or by the grand jury,
establishes probable cause to believe that offense has been committed and that the
accused committed it.
evidence received at the preliminary hearing, or by the grand jury, establishes probable cause to believe
that offense has been committed and that the accused committed it.
2. Criminal Law; Indictment and Information.
At preliminary examination or in proceedings before grand jury, issue of guilty or innocence is not
involved and the evidence need not be sufficient to support conviction; the state is not required to negate
all inferences which explain the conduct of the accused but only to present enough evidence to support
reasonable inference that accused committed the offense.
3. Criminal Law.
In order to hold person charged with possession of narcotics, it is necessary to show dominion and
control by the accused over the narcotic substance and knowledge of its narcotic character, but those
elements may be shown by circumstantial evidence and reasonably drawn inferences.
Evidence presented to grand jury that defendant was registered guest at motel and sole known occupant
of motel room for more than a month and that, upon nonpayment of the rent, the management locked the
room and, upon unlocking the room two days later, found marijuana in one of the dresser drawers was
sufficient to support return of indictment charging defendant with possession of narcotics. NRS 453.030.
OPINION
Per Curiam:
This appeal from an order of the Second Judicial District Court denying a pre-trial petition
for a writ of habeas corpus challenges a grand jury indictment returned against the appellant
on the grounds that insufficient evidence was presented to the grand jury to constitute
probable cause to believe that a criminal offense had been committed and that the appellant
committed it.
The evidence presented to the grand jury showed that the appellant rented a room in the
Red Carpet Motor Lodge in Reno on September 22, 1970. On October 24, 1970, the manager
of the motel locked the appellant's room for nonpayment of rent, and he was given two days
to settle his bill with the motel. On October 26, when the appellant had failed to pay the rental
as required, the motel personnel entered the appellant's locked room for the purpose of taking
his personal effects to the basement for storage. They found in the top drawer of the dresser a
bag containing a substance which was identified as marijuana. On this evidence, the appellant
was indicted for possession of narcotics in violation of NRS 453.030.
[Headnote 1]
On appeal from a denial of pre-trial habeas the sole function of this court is to determine
whether all of the evidence received at the preliminary hearing, or by the grand jury,
establishes probable cause to believe that an offense has been committed and that the accused
committed it. State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970); Lamb v. Holsten, 85
Nev. 566, 459 P.2d 771 (1969). To enable us to accomplish that function it is necessary that
the transcript of the proceedings before the magistrate or the grand jury be made a part of the
record. Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966). Further review of the
record is not required, as probable cause or the lack of it will be disclosed by the transcript.
[Headnote 2]
At a preliminary examination or in proceedings before a grand jury, the issue of guilt or
innocence of the accused is not involved. Marcum v. Sheriff, 85 Nev. 175, 451 P.2d 845
(1969). The evidence need not be sufficient to support a conviction. Maskaly v. State, 85
Nev. 111, 450 P.2d 790 (1969). Nor must the State produce the quantum of proof required to
establish the guilt of the accused beyond a reasonable doubt. Robertson v. Sheriff, 85 Nev.
681, 462 P.2d 528 (1969). To commit an accused for trial, the State is not required to negate
all inferences which might explain his conduct, but only to present enough evidence to
support a reasonable inference that the accused committed the offense. Johnson v. State, 82
Nev. 338, 418 P.2d 495 (1966); Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963).
[Headnote 3]
In order to hold a person charged with the possession of narcotics, it is necessary to show
dominion and control by the accused over the narcotic substance and knowledge of its
narcotic character, but those elements may be shown by circumstantial evidence and
reasonably drawn inferences. Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967).
The case of State v. Haynes, 267 N.E.2d 787 (Ohio 1971), upon which the appellant relies
so heavily, is inapposite. There the question of probable cause to hold for trial was not
involved. The defendant had been convicted after a trial. On appeal it was contended that the
evidence was not sufficient to support the conviction. The proof at trial showed that, although
the premises where the narcotics were found were rented by the defendant, they had also
been occupied by the defendant's girl friend and three other persons for some time.
the defendant, they had also been occupied by the defendant's girl friend and three other
persons for some time. Moreover, it was uncontradicted that the defendant had left the
premises a week prior to the time the narcotics were found.
[Headnote 4]
Here, a review of the transcript of the evidence presented to the grand jury shows the
appellant to have been a registered guest at the motel. As such, he was the sole known
occupant of the motel room. That occupancy continued for more than a month. Upon
nonpayment of rent, the management locked the room. The testimony shows that no one else
could have gained entrance. Two days after the appellant's room was locked, marijuana was
found in one of the dresser drawers inside the room. The legality of the entrance to the room
by motel personnel is not in issue here.
Such evidence, and the inferences which reasonably may be drawn therefrom, constitutes
probable cause to believe that the crime of possession of narcotics has been committed, and
that the appellant committed it. Accordingly, the district court's order denying habeas corpus
is affirmed.
____________
87 Nev. 364, 364 (1971) Johnson v. State
MATT JOHNSON, Jr., Appellant, v. STATE
No. 6519
July 13, 1971 486 P.2d 493
Affirmed.
OPINION
Per Curiam:
A jury found Johnson guilty of robbery. NRS 200.380. The single issue on appeal is
whether the evidence is sufficient to support the jury verdict.
87 Nev. 364, 365 (1971) Johnson v. State
We have reviewed the record and find the evidence contained therein does support the
verdict. The judgment appealed from is affirmed.
____________
87 Nev. 365, 365 (1971) Thurston v. Thurston
ELIZABETH S. THURSTON, Appellant, v.
RAYMOND L. THURSTON, Respondent.
No. 6291
July 13, 1971 487 P.2d 342
Appeal from judgment and decree of divorce and from order denying motion for new trial;
Eighth Judicial District Court, Clark County; William P. Compton, Judge.
The district court granted divorce to husband, and wife appealed. The Supreme Court,
Zenoff, C. J., held that record showing that the over $300,000 in assets which wife received
in distribution of property constituted more than half of the property of the parties and was
capable of producing substantial yearly income, in absence of any attempted proof by wife to
show different value attributed to certain assets than that shown by her husband's proof,
however meager, supported finding that distribution was just and equitable.
Affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
George Rudiak, of Las Vegas, for Respondent.
1. Divorce.
Plaintiff husband who introduced testimony of neighbor who said he either saw or phoned plaintiff every
day during six-week period preceding divorce action adequately showed requisite six weeks' residency
within state to confer jurisdiction of divorce matter upon trial court. NRS 54.010, 125.020, subd. 1(e).
2. Divorce.
Record showing that the over $300,000 in assets which defendant wife received in distribution of
property ordered in divorce proceeding constituted more than half of the property of the parties and was
capable of producing substantial yearly income, in absence of any attempted proof by wife to show
different value attributed to certain assets than that shown by her husband's proof, however meager,
supported finding that distribution was just and equitable. NRS 125.150.
3. Divorce.
Finding of incompatibility, amply supported by testimony and documentary evidence, would not be
reversed on appeal.
4. Divorce.
Where defendant wife opposed husband's divorce action and at no time did she seek divorce, divorce was
properly granted to husband on finding of incompatability notwithstanding fact that he might have been
most at fault. NRS 125.120.
5. Divorce.
Denial of defendant wife's new trial motion, based on husband's failure to list about $7,000 worth of
stock, was not error in light of determination that failure was in good faith and resultant change in value of
distributed property did not make distribution, in which wife received over $300,000 in assets constituting
more than half the property of the parties, inequitable.
Assertions of error raised only in reply brief without citation of authority and with little argument would
not be considered by Supreme Court.
OPINION
This appeal involves a divorce action commenced May 23, 1969. The parties were both 57
years old and had been married 34 years at that time. The action was instituted by the
respondent and was opposed throughout by the appellant, though she did counterclaim for
separate maintenance two days before the trial.
The respondent based his plea for divorce on the assertion that he and Mrs. Thurston were
incompatible. Shortly before the trial he added the ground of one year's voluntary separation.
The appellant founded her counterclaim upon the asserted extreme cruelty of the respondent.
Part of the contentions on appeal involve the propriety of the lower court's granting the
divorce to Dr. Thurston in light of these assertions as they were proven at the trial.
Also contested at length on this appeal is the property distribution ordered by the court
below. Both the respondent's complaint and the appellant's cross-complaint sought
equitable division of the substantial property held by the parties. The lower court in its
findings of fact explicitly acknowledged that it was attempting to make an equitable
distribution. Appellant asserts here, however, that the distribution was not equitable.
[Headnote 1]
1. We first address the question of jurisdiction. Appellant contends that the respondent
did not adequately show the requisite six weeks' residency in Nevada.
contends that the respondent did not adequately show the requisite six weeks' residency in
Nevada. NRS 125.020(e). Her contention is that the corroboration requirement of NRS
54.010 was not satisfied.
The lower court found that the corroboration was satisfactory, however, and the record
supports this finding. Dr. Thurston introduced testimony of a neighbor who said he either saw
or phoned Dr. Thurston every day during the six weeks preceding May 23, 1969. Because the
record supports the finding of proper residency, we will not disturb that finding. NRCP 52(a).
[Headnote 2]
2. Similarly, the just and equitable nature of the distribution of property under NRS
125.150 is amply supported by the record. Though Mrs. Thurston complains of the value
attributed to certain assets by the court it is noteworthy that she attempted to prove no
different value than that shown by her husband's proof. Though that proof was, indeed,
meager it stood unimpeached at the trial and as such is adequate to support the evaluation and
distribution. The record shows that the over $300,000 in assets which Mrs. Thurston received
constituted more than half the property of the parties, and was capable of producing a
substantial yearly income. We cannot disagree with the lower court's finding that such a
distribution is just and equitable. Cf. Freeman v. Freeman, 79 Nev. 33, 378 P.2d 264
(1963).
3. Appellant maintained throughout this action that reconciliation was possible. She
opposed the divorce action and at no time did she seek divorce, though she did seek separate
maintenance. She now urges that the divorce was improperly granted Dr. Thurston, first,
because he failed to prove incompatibility, and second, because he was most at fault.
[Headnote 3]
Again, the record supports the finding of the lower court and for that reason we decline to
reverse. Ample testimony and documentary evidence supports the assertion of
incompatibility. Moreover, much of Mrs. Thurston's argument on this issue on appeal relies
on depositions and exhibits thereto which we have not considered because these depositions
were not employed or published at the trial.
[Headnote 4]
Further, we cannot agree with Mrs. Thurston's assertion that NRS 125.120 precludes the
result here.1 The language of the statute is clear; since Mrs.
NRS 125.120 precludes the result here.
1
The language of the statute is clear; since Mrs.
Thurston did not seek divorce, the court was empowered to grant a divorce to Dr. Thurston
even if it found him most at fault. Napolitani v. Napolitani, 78 Nev. 323, 372 P.2d 206
(1962).
[Headnote 5]
4. Appellant also argues that her motion for new trial was improperly denied. Much of the
basis for the motion consisted of factual arguments discussed above and need not be
discussed further. Also, part of the basis for the motion was the assertion that Dr. Thurston's
failure to list about $7,000 worth of stock required a new trial. The lower court felt this
failure was in good faith and did not feel the resultant change in the value of the distributed
property made the distribution inequitable. We cannot say the court erred in light of the
record.
[Headnote 6]
5. Other assertions of error are raised only in the reply brief without citation of authority
and with little argument. Because of this and because the errors asserted are not clearly
unmistakable and compelling, we do not address them. Ellison v. State, 87 Nev. 4, 479 P.2d
461 (1971); Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970); Nevada Ind. Comm'n v.
Bibb, 78 Nev. 377, 374 P.2d 531 (1962).
Affirmed.
Batjer, Mowbray, and Thompson, JJ., and Waters, D. J., concur.
____________________

1
NRS 125.120 Parties to whom court may grant divorce. 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, even if such party be the
party most at fault. (Emphasis added.)
____________
87 Nev. 369, 369 (1971) In re Raggio
In the Matter of WILLIAM J. RAGGIO, District
Attorney of Washoe County, Nevada.
No. 6142
July 13, 1971 487 P.2d 499
Review of recommendation of the Board of Governors of the State Bar of Nevada.
Disciplinary proceeding. The Supreme Court held that public statements of a district
attorney criticizing opinion of Supreme Court would warrant reprimand.
Recommendation approved.
Responsibility for ultimate enforcement of standards of propriety and honor applicable to attorneys
reposes in courts.
Government of the legal profession is a judicial function.
Right of free speech does not give a lawyer the right to openly denigrate the court in the eyes of the
public. Const. art. 1, 2.
Critical public statements made by district attorney concerning an opinion of the Supreme Court would
warrant reprimand. Const. art. 1, 2; SCR 73, 199, 204.
OPINION
Per Curiam:
The Board of Governors of the State Bar of Nevada has recommended that this court
reprimand William J. Raggio for public statements made by him as the District Attorney of
Washoe County, Nevada, concerning the opinion of this court in the celebrated case of Bean
v. State, 86 Nev. 80, 465 P.2d 133 (1970). That opinion, for the second time, sustained a jury
verdict finding Bean guilty of first degree murder. When the Bean case was first before this
Court, Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), we affirmed not only his conviction,
but the penalty of death which the jury had decreed. Upon the second appeal, the death
penalty thus imposed was set aside and the case remanded for another hearing limited to the
issue of penalty alone. This difference in the result of the two appeals was believed by a
majority of this court to be compelled by an intervening decision of the United States
Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968), since the doctrine of that
case was directed to be applied to death penalty convictions previously entered.
87 Nev. 369, 370 (1971) In re Raggio
The obligation of this court to follow and apply controlling decisions of the United States
Supreme Court is written in our Nevada Constitution Article 1, Section 2, and that obligation
must be discharged fearlessly and without regard to consequences.
1
Indeed, every citizen,
including the District Attorney, is similarly bound. Were it otherwise, ours would be a
government of men rather than a government of law. The controlling authority of law must be
recognized if we are to endure as a nation. The courts are the symbolic representatives of law
and must be allowed to do their duty.
[Headnotes 1, 2]
Every licensed attorney knows that he belongs to a profession with inherited standards of
propriety and honor which experience has shown necessary in a calling dedicated to the
accomplishment of justice. He who would follow that calling must conform to those
standards. The responsibility for the ultimate enforcement of those standards reposes in the
courts since the government of the legal profession is a judicial function. Among other
matters, these standards of propriety and honor require the lawyer to protect the rights of
litigants in pending cases (SCR 199) and to uphold the respect due courts of justice (SCR 73,
204). Aside from this, simple regard for efficient and economical operation of our judicial
system demands that all counsel refrain from needlessly creating possible impediments to
obtaining a fair trial, with resulting litigation that delays rather than furthers the purpose of
our courts. For this reason among others, Supreme Court Rule 199 prohibits all counsel, not
just prosecutors, from causing the publication of any material concerning a case on trial or
any pending or anticipated litigation, calculated or which might reasonably be expected to
interfere in any manner or to any degree with a fair trial in the courts or otherwise prejudice
the due administration of justice.
[Headnote 3]
One who is not a lawyer nor acquainted with the need for standards to govern members of
the legal profession may tend to view a prosecutor's remarks about a pending case and the
court's handling of that case to be an exercise of the right of free speech and, therefore, not
subject to sanction. However, this is not true. The freedom to express oneself does not carry
implications that nullify the guarantees of impartial trials.
____________________

1
Art. 1, 2: . . . But the Paramount Allegiance of every citizen is due to the Federal Government in the
exercise of all its constitutional powers as the same have been or may be defined by the Supreme Court of the
United States.
87 Nev. 369, 371 (1971) In re Raggio
implications that nullify the guarantees of impartial trials. The processing of a case by those
charged with the responsibility is not to be diverted from established protections and placed
in the primitive melee of passion and prejudice. Justice Frankfurter once wrote that free
speech is not so absolute or irrational a concept as to imply paralysis of the means for
effective protection of all freedoms secured by the Bill of Rights. Nor does free speech give
a lawyer the right to openly denigrate the court in the eyes of the public. In re Maestretti, 30
Nev. 187, 93 P. 1004 (1908). In re Breen, 30 Nev. 164, 93 P. 997 (1908). In the Breen case,
supra, the Supreme Court's opinion was characterized as reprehensible if the court knew
what it was doing, pitiful if it did not. He was found guilty of contempt.
[Headnote 4]
The remarks of the District Attorney in the matter before us were deemed by the Board of
Governors to warrant reprimand. He characterized this court's opinion as most shocking,
certainly to this office, and I'm sure to anyone who has dealt with similar problems.; [t]he
Witherspoon decision has clearly no application to the facts of this case, and the court in the
majority opinion has frankly gone to a great extent to do some semantical gymnastics to come
up with a situation which resembles the Witherspoon situation; and I feel very strongly as I sit
here today faced with the task ofalmost insurmountable task of reacquiring witnesses after
some six or seven years and retrying the case.
[2]
I feel that it's an example of judicial
legislation at its very worst.; [i]n my opinion this is the most shocking and outrageous
decision in the history of the Supreme Court of this State. It's unexplainable, and in my
opinion totally uncalled for. These statements were made by Mr. Raggio during a television
interview which he arranged upon learning of the court's opinion. At that time he was
prominently mentioned as a candidate for either governor or United States senator. Maximum
dissemination was given his views. His initial comments were frequently repeated in the press
and on television during the weeks and months to follow. The public was quick to respond.
This court became the center of controversy. Essential public confidence in our system of
administering justice may have been eroded.
The inner motivation which caused Mr. Raggio to speak out in such intemperate fashion is
unknown to us and we shall not indulge in presumptions or inferences adverse to him.
____________________

2
The penalty hearing has since been held. The witnesses were available. The new jury assessed the penalty of
death.
87 Nev. 369, 372 (1971) In re Raggio
indulge in presumptions or inferences adverse to him. We are never surprised when persons,
not intimately involved with the administration of justice, speak out in anger or frustration
about our work and the manner in which we perform it, and shall protect their right to so
express themselves. A member of the bar, however, stands in a different position by reason of
his oath of office and the standards of conduct which he is sworn to uphold. Conformity with
those standards has proven essential to the administration of justice in our courts. Mr. Raggio
offended them, and, as recommended by the Board of Governors, we reprimand him therefor.
____________
87 Nev. 372, 372 (1971) LoBue v. State ex rel. Dep't of Hwys.
MARY LoBUE, an Unmarried Woman, Owner as Sole and Separate Property, Appellant, v.
THE STATE OF NEVADA, on Relation of Its Department of Highways, Respondent.
No. 6377
July 14, 1971 487 P.2d 506
Appeal from summary judgment of Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Proceeding on grantor's amended counterclaim against State in condemnation proceedings,
after remand, 83 Nev. 221, 427 P.2d 639 (1967), to recover damages for county's failure to
construct roads on property which grantor had conveyed to county for such purpose but which
county had quitclaimed to the State. The district court entered summary judgment for State,
and grantor appealed. The Supreme Court, Mowbray, J., held that agreement between State
and grantor that grantor could assert, in condemnation proceedings against other parcels of
grantor's land, any claim she might have because of county's quitclaim of the property to State
without constructing the roads was merely obligation on part of State to defend whatever
claims grantor might present and such obligation was not a debt within constitutional
provision prohibiting State from assuming debts of any county; thus, grantor was not barred
from bringing counterclaim against State for damages arising out of county's failure to
construct the roads.
Reversed.
[Rehearing denied September 22, 1971] Foley Brothers, of Las Vegas and Cooper &
Nelsen, of Los Angeles, California, for Appellant.
Foley Brothers, of Las Vegas and Cooper & Nelsen, of Los Angeles, California, for
Appellant.
Robert List, Attorney General, and Melvin L. Beauchamp, Deputy Attorney General, of
Carson City, for Respondent.
1. States.
Agreement between State and grantor of property to county for construction of roads that grantor could
assert, in condemnation proceedings against other parcels of grantor's land, any claim she might have
because of county's quitclaim of the property to State without constructing the roads was merely obligation
on part of State to defend whatever claims grantor might present and such obligation was not a debt
within constitutional provision prohibiting State from assuming debts of any county; thus, grantor was not
barred from bringing counterclaim against State for damages arising out of county's failure to construct the
roads. Const. art. 9, 4.
2. States.
Debt is usually a liquidated, as distinguished from an unliquidated, sum and is ascertainable before suit is
commenced.
OPINION
The narrow issue presented for our consideration on this appeal is whether Article 9,
section 4, of the Nevada Constitution, which provides, The State shall never assume the
debts of any county, town, city or other corporation whatever, unless such debts have been
created to repel invasion[,] suppress insurrection or to provide for the public defense, bars
the appellant, Mary LoBue, as a matter of law, from proceeding to trial in the district court on
her amended counterclaim to recover damages from the respondent, The State of Nevada, for
the failure of Clark County to construct certain roads adjoining LoBue's property.
This is the second time that this case has been before this court on appeal. The factual
background leading to this litigation has been well set forth in the earlier case of State ex rel.
Dep't of Highways v. LoBue, 83 Nev. 221, 427 P.2d 639 (1967), and the facts need not be
fully repeated in this opinion. Suffice it to say that in 1957 LoBue conveyed to Clark County
3.80 acres of land, upon the representation of the county officials that the County would build
a road adjoining her remaining property, providing approximately 3,000 feet of additional
frontage. By and appropriate resolution, the County Commissioners accepted LoBue's deed
and had it recorded. The County never built the road.
never built the road. Rather, it quitclaimed the property to the State. Later, the State
commenced condemnation proceedings against two separate parcels of realty (5.19 acres)
owned by LoBue. LoBue counterclaimed and sought cancellation of her original deed to the
County covering the 3.80-acre parcel of land because Clark County had failed to build the
promised road. Before the trial of that condemnation proceeding, the State and LoBue
stipulated, among other things, that the ownership of the 3.80-acre parcel, to which the State
held record title adverse to LoBue's claim, could be determined by the district court in the
condemnation litigation. The district judge found in favor of LoBue and ordered the
appropriate deed canceled, thus reconveying title to the 3.80-acre parcel to LoBue. This court
reversed and ruled, 83 Nev. at 225, 226, 427 P.2d at 642:
We conclude that, in these circumstances, the grantor's (LoBue['s]) remedy for the failure
of Clark County to construct the roads is an action at law for damages; not a suit in equity to
cancel the deed. The reason for withholding equitable relief is the need for preserving the
finality of a deed and the integrity of title to real property. This can best be accomplished by
limiting the grantor to the remedy of damages. We express no opinion on the point of
damages. . . .
In accordance with this court's remand, LoBue then filed in the district court her amended
counterclaim for damages only. The State, before trial, sought summary judgment on the
grounds that the obligation, if any, the County owed LoBue was a debt and the State was
barred by the Nevada Constitution from assuming it. The district judge agreed and entered
judgment in favor of the State and against LoBue. Hence, this appeal.
1

Paragraph 4 of the LoBue-State stipulation filed in the district court on March 31, 1966,
provided:
4. The State of Nevada, by quitclaim deed, acquired the right, title and interest, if any, of
the County of Clark in and to that certain property which is the subject matter of this
litigation, the County of Clark having acquired its interest in said property by grant deed from
Mary LoBue and Vincent LoBue, grantors, as is more particularly evidenced by Document
No. 100604, recorded in Book 122 of Official Records of Clark County, Nevada, the deed
being dated March 4, 1957 and recorded March 5, 1957.
____________________

1
In the first appeal, the State was in court opposing LoBue's right to rescind, claiming her only remedy was in
damages, if any existed; but in this case the State contends the aforementioned constitutional proscription
eliminates the State as a party defendant. In other words, the State was willing to defend on the question of
rescission, but not on the question of damages.
County, Nevada, the deed being dated March 4, 1957 and recorded March 5, 1957. Plaintiff
herein [State] agrees that it will not raise any technical defense that the County of Clark is a
necessary or proper party to these proceedings and agrees that Defendant herein [LoBue], as
against Plaintiff herein, may assert any and all legal rights or remedies that Defendant may
have or may have had as against the County of Clark. (Emphasis added.)
[Headnotes 1, 2]
The State, by virtue of that stipulation, agreed that LoBue could assert in the condemnation
proceedings any claim LoBue, as grantor of the 3.80-acre parcel, might have because of that
conveyance and that the State would defend against such claims. We find such an agreement
merely an obligation on the part of the State to defend whatever claims LoBue might present.
Such an obligation is not a debt within the meaning of the constitutional provision. A debt is
usually a liquidated, as distinguished from an unliquidated, sum and is ascertainable before
the suit is commenced. United States v. Virgin, 230 F.2d 880, 882 (5th Cir. 1956); Hart v.
Evans, 71 N.E.2d 546, 551 (Ill.App. 1947); Wolfe v. Bellfair Hat Co., 47 N.Y.S.2d 908, 912
(N.Y.App. 1944); 26 C.J.S. Debt at 6 (1956). In this case, without a hearing there is no way
of determining whether LoBue has suffered any damages because the County failed to build
the roads adjoining her property. The State by virtue of the aforementioned stipulation has
become obligated to defend against LoBue's claims. The obligation no longer belongs to the
County. If LoBue is successful, then the State must stand back of the judgment. We, of
course, express no views regarding the possibility of such a contingency. As this court said in
State ex rel. Dep't of Highways v. LoBue, supra, 83 Nev. at 226, 427 P.2d at 642:
. . . Perhaps the highway construction by the State along the disputed parcel benefited
LoBue as much as the originally planned County roads; perhaps not. That question was not
presented to the trial court for decision.
We therefore conclude that the State's obligation in this case is not a debt within the
meaning of Article 9, section 4, of the Nevada Constitution. Hence, the summary judgment
was improvidently granted, and it must be reversed. It is so ordered.
____________
87 Nev. 376, 376 (1971) Gasser v. Jet Craft Ltd.
JOSEPH S. GASSER, Jr., Appellant, v. JET CRAFT
LTD., a Nevada Corporation, Respondent.
No. 6320
July 15, 1971 487 P.2d 346
Appeal from a judgment of the Eighth Judicial District Court, Clark County, denying relief
in an unlawful detainer action; William P. Compton, Judge.
The district court entered judgment from which lessor appealed. The Supreme Court,
Gunderson, J., held that where lessor's transferee, before instituting action, purportedly served
a notice to quit without specifying any supposed breaches or demanding that they be
corrected, insofar as action claimed restitution for default in payment of rent, error could not
be predicated upon lower court's supposed failure to make findings on issue as to rents due
and owing, because the court was without jurisdiction in the premises.
Affirmed.
L. Earl Hawley, of Las Vegas, for Appellant.
George E. Graziadei, of Las Vegas, for Respondent.
A notice to quit, served pursuant to requirements of unlawful detainer statute, does not demand rent,
either in alternative or at all. NRS 40.250, subd. 4, 40.360, subds. 1, 2.
Where lessor's transferee, before instituting unlawful detainer action, purportedly serving a notice to quit
without specifying any supposed breaches or demanding that they be corrected, insofar as action claimed
restitution for default in payment of rent, error could not be predicated upon lower court's supposed failure
to make findings on issue as to rents due and owing, because the court was without jurisdiction in the
premises. NRS 40.250, subds. 3, 4, 40.360, subds. 1, 2.
When lessor fails to prove an unlawful detainer, his claim for accrued rent is a mere incident of the
action, which fails when the main object fails. NRS 40.250, subd. 4, 40.360, subds. 1, 2.
Unless lessee was guilty of some unlawful detainer, lower court did not err in failing to determine amount
of rent owing by lessee. NRS 40.250, subd. 4, 40.360, subds. 1, 2.
When assignment or subletting is concerned, it may be contended that notice to quit, served pursuant to
requirements of unlawful detainer statute, need not be stated in alternative, because
such a breach cannot be cured.
unlawful detainer statute, need not be stated in alternative, because such a breach cannot be cured. NRS
40.250, subd. 4, 40.360, subds. 1, 2.
In unlawful detainer action against lessee whose lease prohibited him from assigning or subletting the
leased premises without written consent of lessor, evidence supported finding of no sufficient evidence of
subletting or assignment to contractor who occupied premises while performing according to a construction
contract with lessee.
Engaging in an intrinsically lawful business in a building not yet fully completed in accordance with
county's building code does not constitute an unlawful business or nuisance within meaning of statute
governing notices to quit when tenant has set up or carried on an unlawful business or permitted or
maintained a nuisance. NRS 40.250, subds. 4, 5.
If a lessee has agreed to keep demised premises free and harmless of and from all liability on account of
or in respect to any mechanics' lien or liens, and liens are established in some fashion the landlord believes
violates this covenant, then as a predicate to seeking forfeiture, the landlord must serve alternative notice
required by unlawful detainer statute. NRS 40.250, subd. 5.
In view of fact that subsequent to execution of lease lessor's predecessors agreed in writing to take
payment under different terms than those stated in lease and to permit lessee to remove existing house from
premises, it was doubtful that any issue relating to house could properly be litigated in action for unlawful
detainer; in any event, the obligation arising from destruction of house by lessee, concerning merely the
payment of money, could have been performed; thus, lower court had no jurisdiction of dispute in absence
of an alternative notice required by unlawful detainer statute. NRS 40.250, subd. 5.
Lessee, by allegedly suffering lessor to purchase its interests subject to redemption, did not in effect
assign or sublet the premises to lessor without lessor's consent, and thus all of lessee's rights were not
forfeited. NRS 21.190.
OPINION
Scotti leased to respondent premises near McCarran Airport at Las Vegas, for a 25-year
term, with an option to purchase the property for $82,500 after 10 years. At a cost of nearly
$600,000, respondent constructed an aircraft hangar, and began assembling aircraft with the
help of Flamingo Pools, which built the fuselages. By Spring of 1969, when Scotti transferred
his interests to appellant, the hangar was substantially completed, except for off-site
improvements, installation of fire hydrants, paving of parking areas, and the like.
his interests to appellant, the hangar was substantially completed, except for off-site
improvements, installation of fire hydrants, paving of parking areas, and the like.
Respondent's building permit has never been revoked; nor has Clark County proceeded
against respondent for any building violation. Some suppliers recorded liens against the
premises, two remaining of record when this action was tried. Two creditors obtained
judgments against respondent; one levied execution against the premises; whereupon,
appellant purchased respondent's interests at execution sale, subject to respondent's right of
redemption. Having attempted to tender some of the monies claimed in this action,
respondent deposited in escrow sums it deems owing to appellant or to Scotti.
Before instituting this action, appellant purportedly served a notice pursuant to the
requirements of the Nevada Revised Statutes, allowing respondent five (5) days to depart
from the premises, without specifying any supposed breaches or demanding they be
corrected. Appellant's Complaint, to which this notice was attached, was almost as cryptic.
It alleged that respondent had breached the said lease as to each of the following paragraphs:
(h), (i), (j), (k), and (1).
1
It further alleged: that respondent owed $3,000 as rent; that $5,000
was owing for the breach of section (h) of the said lease in that defendant has destroyed the
building referred to in said paragraph (h) and has paid only $5,000.00 under said agreement;
and that appellant had "been forced to pay for a judgment against defendant in the sum
of $14,10S.9S."
____________________

1
Under paragraph (h), Scotti retained the right to collect rents from a dwelling on the premises, until paid
$10,000; then, respondent was to acquire all rights in and to said dwelling.
By paragraph (i), respondent agreed to save and keep Scotti and the premises free and harmless of and
from all liability on account of or in respect to any mechanics' lien or liens in the nature thereof for work and
labor done or materials furnished at the instance and request of Corporation or nominee in, on, and about the
demised premises; however, respondent was to have the right to contest the claim of such lien, in which event
it was to furnish a bond.
Paragraph (j) required respondent to save and hold Scotti harmless from any and all claims of any kind
whatsoever arising out of this lease or use of the demised premises, and to defend suits involving the premises
brought against Scotti.
Paragraph (k) provided, among other things, that respondent may not assign or sublet the lease premises
without written consent, which Scotti agreed not to unreasonably withhold.
Paragraph (1) undertook to provide for such contingencies as insolvency, bankruptcy, and receivership; and
also declared, in the event any execution or attachment shall issue against Corporation or nominee or any of the
effects of Corporation or nominee and will remain in force for a period of more than thirty (30) days . . . Scotti
may at his option terminate this lease and the same shall become null and void and thereafter of no effect
whatsoever.
and that appellant had been forced to pay for a judgment against defendant in the sum of
$14,108.98. Referring to a recent letter by which the Clark County Planning Commission
had recited items to be adhered to before a certificate of occupancy can be granted and prior
to any business licenses being issued, the Complaint also alleged respondent's occupation
was in violation of County Ordinances.
As appellant invoked NRS 40.340, which gives priority to unlawful detainer actions, the
case was tried shortly after respondent's Answer was filed, apparently without any pre-trial
discovery. From the trial transcript, the parties' trial briefs, and briefs and arguments to this
court, we have attempted to glean their respective theories of the case. Most of the supposed
breaches for which appellant claimed a right of forfeiture are involved in his assignments of
error, which we treat in this Opinion. Respondent not only contended that no actionable
breach had occurred, and that forfeiture would in any event be inequitable, but that appellant's
purported notice to quit did not satisfy NRS 40.250. Having prevailed upon the merits,
respondent has not pressed the latter question on appeal; nonetheless, as it is jurisdictional,
we deem it the threshold issue as regards all appellant's assignments of error.
2

1. Under NRS 40.250(3), a tenant is guilty of an unlawful detainer [w]hen he continues
in possession in person or by subtenant, after default in the payment of any rent and after a
notice in writing, requiring in the alternative the payment of the rent or the surrender of the
detained premises, shall have remained uncomplied with for a period of 5 days after service
thereof. Although appellant served no such notice, he contends that [t]he court erred in
failing to find and rule on the issue as to rents due and owing.
[Headnotes 1, 2]
We held long ago that when forfeiture is claimed for failure to pay rent, a proper notice to
quit is a jurisdictional requisite, which the landlord must plead and prove. This demand is
indispensable; it is as necessary to be made before suit as it is that the relation of landlord and
tenant should exist. Paul v. Armstrong, 1 Nev. S2, 9S
____________________

2
At the time of oral argument before this court, appellant's counsel was asked what provisions of our law he
had relied on when preparing appellant's notice to quit. He was afforded an opportunity to state his position in
writing, and responded: Pursuant to the instructions of the Supreme Court, this is to advise you that the Section
of Nevada Revised Statute 40 relied upon with reference to the Notice to Vacate in the above-entitled matter was
NRS 40.250, subsection (4). Appellant also looked to NRS 40.250 subsection (5), which required no notice.
Armstrong, 1 Nev. 82, 98 (1865). It must be explicit and positive, fulfilling strictly the
requirements of the statute. Roberts v. District Court, 43 Nev. 332, 340, 185 P. 1067, 1069
(1920). Thus, many courts hold the notice must not only be in the alternative, demanding
payment of the rent or surrender of the premises, but also must correctly state the precise
amount of rent due.
3
Because our statute does not require the amount of rent to be specified
in the notice, we have held that a notice which simply demands the payment of rent or
surrender of possession would seem to satisfy our law. Volpert v. Papagna, 83 Nev. 429,
433, 433 P.2d 533, 535 (1967). Still, a notice that does not demand rent, either in the
alternative or at all, must be held deficient, else NRS 40.250(3) would have no real meaning
at all. Accordingly, insofar as this unlawful detainer action claimed restitution for default in
payment of rent, error may not be predicated upon the lower court's supposed failure to make
findings, because the court was without jurisdiction in the premises.
[Headnotes 3, 4]
It has been held that when the lessor fails to prove an unlawful detainer, his claim for
accrued rent is a mere incident of the action, which fails when the main object fails. Markham
v. Fralick, 39 P.2d 804 (Cal. 1934); Fontana Industries, Inc. v. Western Grain & Fer. Co., 334
P.2d 611 (Cal.App. 1959); cf. Arnold v. Krigbaum, 146 P. 423 (Cal. 1915). Our statutes
appear to require this result. Only if judgment for a plaintiff is entered pursuant to NRS
40.360(1), does it appear the court may assess damages, and claims for rent, under the
provisions of NRS 40.360(2).
4
(Indeed, NRS 40.360(2) arguably permits a judgment for
rent only when the "alleged unlawful detainer be after default in the payment of rent.")
____________________

3
See: Johnson v. Sanches, 132 P.2d 853 (Cal.App. 1942); Dertiman v. Almey, 207 P.2d 615 (Cal.App.
1949); Werner v. Sargeant, 264 P.2d 217 (Cal.App. 1954); J. B. Hill Co. v. Pinque, 178 P. 952 (Cal. 1919). On
the general question of the jurisdictional character of a notice to quit, see: Hall v. Haines, 51 P.2d 570 (Okl.
1935), holding that a plaintiff who did not join in giving a notice to quit may not maintain an action of unlawful
detainer based on such notice; Thisius v. Sealander, 175 P.2d 619 (Wash. 1946), holding that a demand which is
not sufficiently particular to enable a tenant to know precisely what is necessary to preserve his tenancy will not
support an action for unlawful detainer; and Little v. Catania, 297 P.2d 255 (Wash. 1956), holding that where an
appropriate notice to quit was neither pleaded nor proved in an unlawful detainer action, a judgment of unlawful
detainer could not properly be entered.

4
40.360 Judgment; damages; execution and enforcement.
1. Judgment. If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the finding of
the court, be in favor of
a judgment for rent only when the alleged unlawful detainer be after default in the payment
of rent.) Thus, unless respondent was guilty of some unlawful detainer, the lower court
clearly did not err in failing to determine the amount of rent owing by respondent.
2. Under NRS 40.250(4), a tenant is guilty of an unlawful detainer [w]hen he assigns or
sublets the leased premises contrary to the covenants of the lease, or commits or permits
waste thereon, or when he sets up or carries on therein or thereon any unlawful business, or
when he suffers, permits or maintains on or about the premises any nuisance, and remains in
possession after service upon him of 3 days' notice to quit. Appellant contends the lower
court erred in its finding of no sufficient evidence of subletting or assignment to Flamingo
Pools and as to no violation of Section k of the lease.
5

[Headnote 5]
When assignment or subletting is concerned, it may be contended that notice to quit need
not be stated in the alternative, because such a breach cannot be cured. Richard v. Degen &
Brody, Incorporated, 5 Cal.Rptr. 263 (Cal.App. 1960); cf. Salton Community Services
District v. Southard, 64 Cal.Rptr. 246 (Cal.App. 1967); cf. Hignell v. Gebala, 202 P.2d 378
{Cal.App.
____________________
the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises; and, if the
proceeding be for unlawful detainer after neglect or failure to perform any condition or covenant of the lease or
agreement under which the property is held, or after default in the payment of rent, the judgment shall also
declare the forfeiture of such lease or agreement.
2. Damages. The jury or the court, if the proceeding be tried without a jury, shall also assess the damages
occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, and any amount found
due the plaintiff by reason of waste of the premises by the defendant during the tenancy, alleged in the complaint
and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in
the payment of rent; and the judgment shall be rendered against the defendant guilty of the forcible entry, or
forcible or unlawful detainer, for the rent and for three times the amount of the damages thus assessed. * * *

5
This finding was as follows:
9. That (k) of the lease agreement between Scotti and Defendant reads in pertinent part:
[Defendant] may not assign or sublet the lease premises without written consent of Scotti.'
That Flamingo Pools did occupy the premises while performing according to a construction contract with
Defendant. That Flamingo Pools was paid by Defendant for work done. That Defendant received no rent from
Flamingo. That there is no sufficient evidence of an assignment by Defendant to Flamingo Pools.
(Cal.App. 1949). Hence, we will consider the merits of this assignment of error.
[Headnote 6]
An assignment has been defined as: A transfer or making over to another of the whole
of any property, real or personal, in possession or in action, or of any estate or right therein.
Black's Law Dictionary, p. 153 (4th Ed. 1957). A sublease has been defined: One [a lease]
executed by the lessee of an estate to a third person, conveying the same estate for a shorter
term than that for which the lessee holds it. Black's Law Dictionary, p. 1036 (4th Ed. 1957).
As usually understood, both terms comprehend some transfer of interest. Appellant has cited
no authority to establish that, as used in the lease's proscriptions, either term was intended to
prohibit respondent from using the premises in the manner recited in the lower court's
finding, which is supported by the evidence. Thus, this assignment of error is without merit.
3. NRS 40.250(4), quoted above, also governs notices when the tenant has set up or
carried on an unlawful business, or permitted or maintained a nuisance. Apparently
believing he has invoked the lower court's jurisdiction under this provision of our law,
appellant contends that [t]he court erred in failing to find and rule on the issue of violation
of the county ordinances by respondent, as presented by the complaint of appellant.
[Headnote 7]
If the court erred in not ruling on the issue, we deem the error harmless. NRCP 61.
Appellant having cited no authority to support his position, we are unwilling to hold that
engaging in an intrinsically lawful business, in a building not yet fully completed in
accordance with Clark County's building code, constitutes an unlawful business or
nuisance within the meaning of NRS 40.250(4). Authorities collected at pages 469 and 471
of 100 A.L.R.2d, to which appellant cited the trial court,
6
do not support him. Indeed, to a
limited degree, some would appear to support respondent.
4. Under NRS 40.250(5), a tenant is guilty of an unlawful detainer [w]hen he continues
in possession, in person or by subtenant, after a neglect or failure to perform any condition or
covenant of the lease or agreement . . . other than those hereinbefore mentioned, and after
notice in writing, requiring in the alternative the performance of such condition or
covenant or the surrender of the property . . . shall remain uncomplied with for 5 days."
____________________

6
In the absence of lease provisions or statute, illegal use of the property does not work a forfeiture of the
lease.
A statute authorizing that the lease shall be void for illegal use of the premises does not render the lease
void, unless the lessor elects
hereinbefore mentioned, and after notice in writing, requiring in the alternative the
performance of such condition or covenant or the surrender of the property . . . shall remain
uncomplied with for 5 days. The statute goes on to recite: Within 3 days after the service,
the tenant . . . may perform such condition or covenant and thereby save the lease from
forfeiture; but if the covenants and conditions of the lease, violated by the lessee, cannot
afterwards be performed, then no notice as last prescribed herein need be given.
[Headnote 8]
Apparently believing that an alternative notice was not required, because requisite
performance could no longer be made, appellant contends that [t]he court erred in failing to
find that numerous liens and judgments had been filed against respondents, and their effect,
and failed to rule on whether certain documents offered into evidence on liens and judgments
were admissible.
7
In a related argument, appellant contends the court erred in concluding
that the default judgments against respondent did not breach the lease. In our view, if a
lessee has agreed to keep demised premises free and harmless of and from all liability on
account of or in respect to any mechanics' lien or liens, and liens are established in some
fashion the landlord believes violates this covenant, then as a predicate to seeking forfeiture,
the landlord must serve the alternative notice required by NRS 40.250(5). Cf. Feder v.
Wreden Packing & Provision Co., 265 P. 386 (Cal.App. 1928).
8
Thus, again, error may not
be predicated upon the lower court's supposed misunderstanding of paragraph (i), because the
court was without jurisdiction in the premises.
____________________
to avoid such lease, otherwise the tenant may get rid of a burdensome lease by his own wrongful act.
32 Am Jur p.731, 864
What is illegal is a judicial determination under a statute on illegal use.
100 ALR2d 469
The illegal use must be of a continuing nature and includes code regulations.
100 ALR2d 471
100 ALR2d 469

7
Indeed, appellant seems to suggest that no notice whatever is required, when a breach cannot be corrected.
This is a questionable interpretation of NRS 40.250(5). See: Schnittger v. Rose, 73 P. 449 (Cal. 1903);
Horton-Howard v. Payton, 186 P. 167 (Cal.App. 1919).

8
If it be contended that respondent's alleged violations of Clark County's building code are within the ambit
of NRS 40.250(5), we would view them in the same light.
5. Apparently believing he has invoked the lower court's jurisdiction under NRS
40.250(5), appellant contends that [t]he court was in error as to its findings on the $5,000.00
owing to appellant as and for the final payment on the house destroyed by respondent and
covered by the lease under section h' and a judgment for said sum should have been entered
thereon.
[Headnote 9]
Subsequent to execution of the lease, appellant's predecessors agreed in writing to take
payment under different terms than those stated in the lease, and to permit respondent to
remove the existing house from the premises.
9
It is therefore doubtful that any issue relating
to the house could properly be litigated in an action for unlawful detainer. See: Little v.
Catania, 297 P.2d 255 (Wash. 1956). In any event, the obligation, concerning merely the
payment of money, could have been performed; thus, the lower court had no jurisdiction of
the dispute in the absence of an alternative notice.
6. Apparently believing he has invoked the lower court's jurisdiction under 40.250(5),
appellant further contends that [t]he Court's interpretation of Section 1' of the Lease is in
error. (The lower court construed paragraph (1) to apply only when the action filed relates
to the leased property itself.) Again, our first concern is whether the covenant in question
could still be performed. We have decided it could be because, for all practical purposes, the
levy of a writ of attachment or execution may be removed at any time, whenever the landlord
chooses to demand this be done. Thus, again, in the absence of an alternative demand, the
lower court had no jurisdiction in the premises.
____________________

9
AGREEMENT

_____________

This agreement made this 26 day of October 1968.
We agree to take $2,500.00 cash down payment on the one bed-room house on property leased to Jet Craft,
Ltd., 241 Reno Avenue, Las Vegas, Nevada.
Enclosed is $2,500.00 check, dated October 26, 1968; $2,500.00 check, dated December 15, 1968;
$5,000.00 check, dated March 1, 1969 and hereby grant Jet Craft Ltd. permission to remove said house from the
plant property.
Signed Joseph J. Scotti

_____________

Guy C. Scotti

____________

Witness Doris Y. Grose.

___________
[Headnote 10]

[Headnote 10]
7. Appellant apparently contends he was forced to purchase respondent's interests at
execution sale; that, by suffering appellant to purchase its interests subject to redemption
under NRS 21.190, respondent in effect assigned or sublet the premises to appellant,
without appellant's consent; and that, therefore, all respondent's rights were forfeited. We
reject this argument.
Because the record establishes no unlawful detainer, we need not consider contentions
concerning claims incident to the main object of the action, or contentions regarding the
lower court's determination that forfeiture would be inequitable.
____________
87 Nev. 385, 385 (1971) Holloway v. Barrett
H. H. HOLLOWAY, Petitioner, v. THE HONORABLE JOHN W. BARRETT, District Judge
of the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, Department 2, Thereof, Respondent.
No. 6497
July 23, 1971 487 P.2d 501
Original proceeding in mandamus.
Creditor sought writ of mandamus to test denial of his motion for summary judgment in
amount of difference between indebtedness at time of trustee's sale of real property pursuant
to terms of deed of trust and proceeds of the sale. The Supreme Court, Batjer, J., held that
statute requiring trial court to ascertain fair and reasonable market value of encumbered
premises at date of sale and to deduct said sum from amount due on deficiency in order to
ascertain correct amount of deficiency judgment was applicable to a deficiency occurring as a
result of a trustee's sale held after effective date of the statute even though note and deed of
trust were executed prior to the effective date of the statute; statute did not impair obligation
of the note and deed of trust.
Writ of mandamus denied.
Maurice J. Sullivan, of Reno, for Petitioner.
Gray, Horton and Hill; Fry and Fry, of Reno, for Respondent.
1. Courts.
Courts are only justified in overruling former decisions where they are deemed to be clearly erroneous.
2. Mandamus.
Mandamus could be used to test denial of motion for summary judgment.
3. Statutes.
Generally, a statute affecting rights and liabilities should not be so construed so as to act upon those
already existing; to give it that effect, statutes should in express terms declare such to be the intention of
the legislature.
4. Statutes.
Statutes are presumed to operate prospectively and shall not apply retrospectively unless they are so
strong, clear and imperative that they can have no other meaning or unless intent of legislature cannot be
otherwise satisfied.
5. Constitutional Law; Mortgages.
Statute requiring trial court to ascertain fair and reasonable market value of encumbered premises at date
of foreclosure of trustee's sale and to deduct said sum from amount due on deficiency in order to ascertain
correct amount of deficiency judgment was applicable to deficiency occurring as a result of a trustee's sale
held after the effective date of the statute even though note and deed of trust were executed prior to
effective date of statute; statute did not impair obligation of the note and deed of trust. NRS 40.457,
subd. 2, 40.459; Stats. Nev. 1969, ch. 327; Const. art. 1, 15; U.S.C.A.Const. art. 1, 10.
6. Courts.
Question of the retrospective application of a statute is a state court problem.
OPINION
The original action was filed in the district court to recover a judgment for a deficiency
remaining upon a promissory note after a trustee's sale of real property pursuant to the terms
of a deed of trust.
The petitioner, the plaintiff in the court below, moved for summary judgment in the
amount of the difference between the indebtedness at the time of sale and the proceeds of
sale.
The defendants below opposed the motion and moved, pursuant to NRS 40.457(2)
(Chapter 327, 1969 Statutes of Nevada),1 for the appointment of an appraiser, for the
purpose of limiting the amount of the default judgment as provided in NRS 40.459.
Nevada),
1
for the appointment of an appraiser, for the purpose of limiting the amount of the
default judgment as provided in NRS 40.459.
The respondent district judge denied petitioner's motion for summary judgment and
granted the defendant's motion for the appointment of an appraiser pursuant to the present
law. He construed NRS 40.457(2) to apply to a promissory note secured by a deed of trust
and executed before July 1, 1969,
____________________

1
(Note: Matter within brackets has been repealed. Italic print denotes newly enacted legislation.)
Section 1. NRS 40.430 is hereby amended to read as follows:
40.430 1. Except as provided in chapter 104 of NRS, there shall be but one action for the recovery of any
debt, or for the enforcement of any right secured by mortgage or lien upon real estate, which action shall be in
accordance with the provisions of this section, sections 3 to 7, inclusive, of this act and NRS 40.440 and 40.450.
In such action, the judgment shall be rendered for the amount found due the plaintiff, the effective date of
Chapter 327and the court shall have power, by its decree or judgment, to direct a sale of the encumbered
property, or such part thereof as shall be necessary, and apply the proceeds of the sale to the payment of the
costs and the expenses of the sale, the costs of the suit, and the amount due to the plaintiff. [If the land
mortgaged consists of a single parcel, or two or more contiguous parcels, situated in two or more counties, the
court may, in its judgment, direct the whole thereof to be sold in one of such counties by the sheriff, and upon
such proceedings, and with like effect, as if the whole of the property were situated in that county. If it shall
appear from the sheriff's return that there is a deficiency of such proceeds and balance still due to the plaintiff,
the judgment shall then be docketed for such balance against the defendant or defendants personally liable for
the debts, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and
an execution may thereupon be issued by the clerk of the court, in like manner and form as upon other
judgments, to collect such balance or deficiency from the property of the judgment debtor.]
2. A sale directed by the court pursuant to subsection 1 shall be conducted by the sheriff of the county in
which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court
shall direct the sale to be conducted in one of such counties by the sheriff of that county with like proceedings
and effect as if the whole of the encumbered land were situated in that county.
Sec. 2. Chapter 40 of NRS is hereby amended by adding thereto the provisions set forth as sections 3 to 7,
inclusive, of this act.
Sec. 3. As used in sections 4 to 7, inclusive, of this act, indebtness' means the principal balance of the
obligation secured by a mortgage or deed of trust, together with all interest accrued and unpaid prior to the
time of sale, all costs and fees of such foreclosure sale, all advances made with respect to the property by the
beneficiary, and all other amounts secured by the mortgage or deed of trust or which constitute a lien on the
real property in favor of the person seeking the deficiency judgment. Such amount constituting a lien is limited
to the amount of the consideration paid by the lienholder.
Sec. 4. It is hereby declared by the legislature to be against public
the effective date of Chapter 327, 1969 Statutes of Nevada, and that the legislation was not
subject to the presumption limiting statutes to prospective application.
Chapter 327, 1969 Statutes of Nevada, does not contain any specific language to indicate
that the legislature intended it to apply to any document relating to the sale of real property
entered into prior to July 1, 1969, or that it was intended to receive retroactive application.
____________________
policy for any document relating to the sale of real property to contain any provision waiving the rights of any
party which are secured by the laws of this state.
2. No court shall enforce any such provision.
Sec. 5. Upon application of the judgment creditor of the trustee within 3 months from the date of the
foreclosure sale or the trustee's sale held pursuant to NRS 107.080, respectively, and after the hearing
conducted under section 6 of this act, the court may award a deficiency judgment to the judgment creditor or
trustee if it appears from the sheriff's return or the recital of consideration in the trustee's deed that there is a
deficiency of sale proceeds and a balance remaining due to the judgment creditor or the trustee, respectively.
Sec. 6. 1. Before awarding a deficiency judgment under section 5 of this act, the court shall hold a
hearing and shall take evidence presented by either party concerning the fair market value of the property sold
as of the date of foreclosure sale or trustee's sale. Notice of such hearing shall be served upon all defendants
who have appeared in the action and against whom a deficiency judgment is sought, or upon their attorneys of
record, at least 15 days before the date set for hearing.
2. Upon application of any party made at least 10 days before the date set for the hearing the court shall,
or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the date of
foreclosure sale or trustee's sale. Such appraiser shall file with the clerk his appraisal, which is admissible in
evidence. The appraiser shall take an oath that he has truly, honestly and impartially appraised the property to
the best of his knowledge and ability. Any appraiser so appointed may be called and examined as a witness by
any party or by the court. The court shall fix a reasonable compensation for the appraiser, but his fee shall not
exceed similar fees for similar services in the county where the encumbered land is situated.
Sec. 7. After the hearing under section 6 of this act, the court may award a money judgment against the
defendant or defendants personally liable for the debt. The court shall not render judgment for more than the
amount which the amount of indebtedness which was secured by the mortgage, deed of trust or other lien at the
time of the foreclosure sale or trustee's sale, as the case may be, exceeding the fair market value of the property
sold at the time of such sale, with interest from the date of such sale. In no event shall the court award such
judgment, exclusive of interest after the date of such sale, in an amount exceeding the difference between the
amount for which the property was actually sold at the foreclosure sale or trustee's sale and the amount of
indebtedness which was secured by the mortgage, deed of trust or other lien at the time of such sale.
The petitioner, claiming no plain, speedy or adequate remedy in the ordinary course of
law, and relying upon Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), has filed his
petition for mandamus. Both parties agree that an order denying summary judgment is
interlocutory and not a final judgment, and is not appealable.
The respondent, citing substantial authority [Greater Arizona Savings & Loan Ass'n v.
Tang, 400 P.2d 121 (Ariz. 1965); Overmeyer v. Walinski, 222 N.E.2d 312 (Ohio 1966); and
the dicta in Chappell & Co. v. Frankel, 367 F.2d 197 (CA 2, 1966)] contends at the outset,
that mandamus may not be used to test a denial of a motion for summary judgment and
requests us to summarily overrule Dzack v. Marshall, supra. This we decline to do.
In Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947), this court said: While courts will
indeed depart from the doctrine of stare decisis where such departure is necessary to avoid the
perpetuation of error' (14 Am.Jur. 341), the observance of the doctrine has long been
considered indispensable to the due administration of justice, that a question once deliberately
examined and decided should be considered as settled.
In Jensen v. Labor Council, 68 Nev. 269, 229 P.2d 908 (1951), this court quoted with
approval from In re Burtt's Estate, 353 Pa. 217, 44 A.2d 670, 677, 162 A.L.R. 1053, 1062:
Otherwise the law would become the mere football of the successively changing personnel
of the court, and the knowne certaintie of the law,' which Lord Coke so wisely said is the
safetie of all,' would be utterly destroyed.
[Headnote 1]
Courts are only justified in overruling former decisions where they are deemed to be
clearly erroneous. Ex parte Woodburn, 32 Nev. 136, 104 P. 245 (1909).
[Headnote 2]
Although it is apparently a minority view, the rule announced in Dzack v. Marshall, supra,
that mandamus will lie when from the record it appears that it is the duty of the district court
to enter summary judgment, has been, since 1964 the considered law of this state. It has a
useful place in the scheme of justice by requiring careful consideration of motions for
summary judgment. We find nothing in the arguments of counsel, nor in the cases cited by
the respondent, to dissuade us. See Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964). See
also Lippman v. Hunt, 227 N.W. 668 (Mich. 1929); Bank of America National T.
Bank of America National T. & S. Ass'n v. Superior Court, 4 Cal.App.3d 435, 84 Cal.Rptr.
421 (1970).
We now turn to consider whether, in the absence of legislative direction, Chapter 327,
1969 Statutes of Nevada, may be given application to a document relating to the sale of land
executed prior to the effective date of that statute.
[Headnote 3]
Early in the history of this court it wrestled with the problems inherent in the retrospective
application of laws. In Milliken v. Sloat, 1 Nev. 481 (1865), this court noted: Retrospective
laws have been regarded from remote antiquity as odious and tyrannical, and they have been
almost uniformly discountenanced by the courts of Great Britain and the United States.
Quoted Lord Bacon, It is in general true that no statute is to have a retrospect beyond the
time of its commencement. Then went on to hold: We are of the opinion that when a statute
is silent as to past time and events, courts are bound to apply it only prospectively. (Citations
omitted.) It may be further observed as a general rule, that a statute affecting rights and
liabilities, should not be so construed as to act upon those already existing. To give it that
effect the statute should in express terms declare such to be the intention.
[Headnote 4]
It has continued to be the law of this state that statutes are presumed to operate
prospectively and shall not apply retrospectively unless they are so strong, clear and
imperative that they can have no other meaning or unless the intent of the legislature cannot
be otherwise satisfied.
Before the enactment of Chapter 327, 1969 Statutes of Nevada, it was proper and
appropriate to take a deficiency judgment for the difference between the amount of the
judgment and the price bid, but from and after the effective date of that legislation, it became
obligatory upon the court to ascertain the fair and reasonable market value of the encumbered
premises at the date of sale and to deduct said sum from the amount due on the deficiency in
order to ascertain the correct amount of the deficiency judgment.
[Headnote 5]
The question to be decided is whether this change in the law constituted an impairment of
the obligation of the promissory note and deed of trust. Here the argument about retrospective
and prospective application of Chapter 327, 1969 Statutes of Nevada is purely academic.
There is no attempt upon the part of the trial court to give Chapter 327, 1969 Statutes of
Nevada retrospective effect.
upon the part of the trial court to give Chapter 327, 1969 Statutes of Nevada retrospective
effect. It is being applied to a deficiency occurring as a result of a trustee's sale held after the
effective date of the statute. The only retrospective aspect arises from the fact that the
promissory note and the deed of trust were executed prior to the effective date of the statute
and may for that reason affect rights already in existence. Although the petitioner contends
otherwise, the only real question is whether the statute violates the contract clauses of the
Federal Constitution
2
and the Nevada Constitution.
3

This question was squarely presented to the United States Supreme Court in Gelfert v.
National City Bank, 313 U.S. 221 (1941). Justice Douglas, delivering the opinion of the
court, traced the history of the control of judicial sales of realty by the courts of equity and by
legislatures, and the High Court went on to say: The formula which a legislature may adopt
for determining the amount of a deficiency judgment is not fixed and invariable. That which
exists at the date of the execution of the mortgage does not become so embedded in the
contract between the parties that it cannot be constitutionally altered. As this Court said in
Home Bldg. & L. Ass'n v. Blaisdell, 290 US 398, 435 L ed 413, 427, 54 S Ct 231, 88 ALR
1481, Not only are existing laws read into contracts in order to fix obligations as between the
parties, but the reservation of essential attributes of sovereign power is also read into
contracts as a postulate of the legal order.' (Citations omitted.) It is that reserved legislative
power with which we are here concerned. Mortgagees are constitutionally entitled to no more
than payment in full. Honeyman v. Jacobs, 306 US 539, 83 L ed 972, 59 S Ct 702. They
cannot be heard to complain on constitutional grounds if the legislature takes steps to see to it
that they get no more than that. As we have seen, equity will intervene in individual cases
where it is palpably apparent that gross unfairness is imminent. . . . But there is no
constitutional reason why in lieu of the more restricted control by the court of equity the
legislature cannot substitute a uniform comprehensive rule designed to reduce or to avoid in
the run of cases the chance that the mortgagee will be paid more than once.
The petitioner relies upon a line of California cases and in particular Ware v. Heller, 148
P.2d 410 (Cal.App. 1944), to support his position that we should only be concerned with
the question of the prospective and retrospective application of Chapter 327, 1969
Statutes of Nevada, and should ignore the question of the constitutionality of the
legislation.
____________________

2
The Constitution of the United States provides that No State shall . . . pass any . . . Law impairing the
Obligation of Contracts. Article 1, Sec. 10.

3
The Nevada Constitution, in Section 15 of Article 1, provides that no law impairing the obligation of
contracts, shall ever be passed.
support his position that we should only be concerned with the question of the prospective
and retrospective application of Chapter 327, 1969 Statutes of Nevada, and should ignore the
question of the constitutionality of the legislation.
In Ware v. Heller, supra, that court said: . . . In spite of the fact that the two points are
frequently confused into one, the question of the constitutionality of retroactive legislation
and the question of the intention of the legislature to make a statute retroactive are distinct
questions. The latter question is not a federal one, but one of interpretation of a state statute,
on which the decisions of the state courts are controlling. So it is that those cases which hold
that the legislature revealed no intention of making section 580a retroactive, and therefore it
has no application to actions on notes which are dated prior to 1933, retain their authority,
whatever may be said of the controlling authority of the Gelfert case on the constitutional
question.
[Headnote 6]
Although we agree that the question of retrospective application of a statute is a state court
problem and that the court deciding Ware v. Heller, supra, was obligated to follow the
precedent in that jurisdiction, we do not choose to take such a narrow view.
The case of Gelfert v. National City Bank, supra, is directly in point, and we choose to
follow it. To the same general effect see Richmond Corp. v. Wachovia Bank, 300 U.S. 124
(1937). See Alliance Trust Co. v. Hill, 164 P.2d 984 (Okla. 1945).
The wording of the Nevada Constitution and that of the Federal Constitution are
substantially the same. We therefore conclude that Chapter 327, 1969 Statutes of Nevada,
does not impair the obligation of the promissory note and deed of trust under either the State
or Federal Constitution in the case of a foreclosure occurring after the effective date of the
statute.
The application for a writ of mandate is denied.
4

____________________

4
We are here concerned solely with the application of Chapter 327, 1969 Statutes of Nevada, to a situation
where the beneficiary under a deed of trust purchases the property at a trustee's sale held after July 1, 1969. We
intimate no opinion on its constitutionality as applied to a case where the beneficiary is not the purchaser, nor to
foreclosure and trustee's sales completed prior to the effective date of the statutes.
____________
87 Nev. 393, 393 (1971) Kotecki v. Augusztiny
FLORENCE KOTECKI, Appellant, v. ARPAD
PETER AUGUSZTINY, Respondent.
No. 6325
August 3, 1971 487 P.2d 925
Appeal from an order dismissing petition for letters of general administration, Eighth
Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Nominee of creditors petitioned for letters of general administration of decedent's estate.
The district court dismissed the petition and the nominee appealed. The Supreme Court,
Thompson, J., held that failure to notify creditors under decedent's professional name as well
as under her married name was the equivalent of an affirmative act of fraud and effectively
denied creditors who knew decedent under her professional name of opportunity to present
their claim; thus, nominee was entitled to letters of general administration even though first
administration of estate had already been closed and administrator discharged.
Reversed.
[Rehearing denied September 1, 1971]
R. Paul Sorenson, of Las Vegas, for Appellant.
Cromer & Barker, and Kent W. Michaelson, of Las Vegas, for Respondent.
Notice of estate proceeding under decedent's married name did not constitute notice to those who knew
decedent under name which she assumed for professional purposes. NRS 139.100, subd. 1, 147.130,
subd. 1, 155.010, subd. 4.
Failure to notify creditors under decedent's professional name as well as under her married name of estate
proceeding was the equivalent of an affirmative act of fraud and deprived creditors who knew decedent
under her professional name of the opportunity to present their claims; thus, nominee of creditors who
knew decedent under her professional name was entitled to letters of general administration of decedent's
estate even though first administration of estate had already been closed and administrator discharged.
NRS 139.100, subd. 1, 147.130, subd. 1, 155.010, subd. 4, 155.190, subds. 1, 13.
Request of nominee of creditors for letters of general administration of decedent's estate following
discharge of first administration of estate and of administrator did not constitute a collateral attack on
order discharging first administrator where creditor's wrongful death claims against
decedent were allegedly covered by liability policy which was not in issue in original
proceeding and was not exhausted by any claims made against it.
attack on order discharging first administrator where creditor's wrongful death claims against decedent
were allegedly covered by liability policy which was not in issue in original proceeding and was not
exhausted by any claims made against it. NRS 151.240.
Appointment of an administratrix de bonis non cannot be attacked collaterally. NRS 151.240.
OPINION
This appeal is from an order of the district court dismissing the petition of Florence
Kotecki, nominee of creditors of the estate of Doris M. Parker (also known as Doris M.
Augusztiny), for letters of general administration.
1
The object of the petition was to secure a
defendant upon whom process could be served in a wrongful death action previously filed by
the creditors, and to whom proper claims could be presented. Bodine v. Stinson, 85 Nev. 657,
461 P.2d 868 (1969). Dismissal of the petition was entered for the reason that the
administration of the Estate had already been closed and the administrator discharged.
The wrongful death action was commenced on January 31, 1966, by the heirs of Clarence
A. Hodges to recover damages alleged to have resulted from his death, and to have been
caused by the malpractice of several joined defendants, including a nurse anesthetist known
professionally as Doris M. Parker. Doris M. Parker had died several months before the action
was commenced, and the administration of her estate under her married name of Augusztiny
was promptly instituted and was completed by January 28, 1966, when the administrator was
discharged. Her married name was used throughout the estate proceeding, and all papers,
including the notice to creditors, were in the Matter of the Estate of Doris M. Augusztiny,
deceased, without reference at any time to her professional name of Doris M. Parker by
which she was commonly known to persons in need of her professional attention. It is for this
reason that the creditors, that is, the wrongful death claimants, did not present their claims to
the administrator of the Augusztiny Estate. Upon learning that Parker and Augusztiny were
one and the same person, the claimants attempted to pursue the procedural course
outlined in Bodine, supra, but were denied relief, since administration of the estate had
been completed.
____________________

1
NRS 155.190(1)(13) provides for an appeal from an order granting or revoking letters of administration or
from an order refusing to do so where the amount in controversy equals or exceeds $1,000, exclusive of costs.
one and the same person, the claimants attempted to pursue the procedural course outlined in
Bodine, supra, but were denied relief, since administration of the estate had been completed.
The district court apparently believed that because the notice to creditors given in the name of
Augusztiny complied with NRS 139.100(1), it was conclusive upon all persons, NRS
155.010(4), including creditors who knew the deceased only as Parker, and that therefore
their claims were forever barred, NRS 147.130(1). We do not share that view, and reverse.
[Headnote 1]
1. The problem essentially is one of due process. [W]hen notice is a person's due,
process which is a mere gesture is not due process. The means employed must be such as one
desirous of actually informing the absentee might reasonably adopt to accomplish it. Cf.
Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865,
874 (1950); cf. Schroeder v. New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962). In
short, the purpose of notice is to give notice. Thus, the Supreme Court of Utah has ruled that
notice published in an assumed name wholly different from the true name of the decedent
was not notice to those who knew the decedent by his true name, and allowed an independent
action upon the statutory administrator's bond after the estate had been closed. Weyant v.
Utah Savings & Trust Co., 182 P. 189, 9 A.L.R. 1119 (Utah 1919). The same reasoning
applies with equal force to the instant matter. Notice given in the decedent's married name is
not notice to those who knew her under an assumed name commonly used, and it is no
answer to say that notice was given in the form allowed by statute. The following expression
from Weyant is on point.
In this connection counsel for appellant insist that the statutory notice was in fact
published in due form and for the time required by statute. As a matter of form that statement
is undoubtedly correct. So far as the creditors of Weyant's estate were concerned, who dealt
with him and knew him only by the name of Fuller, the notice referred to may be said to have
been duly given. Can that, however, also, truthfully be said with regard to the respondents?
Was notice published in the name of Harvey W. Fuller notice to them? Would it not have had
the same effect in law if the notice had been published in the name of Brown, or Jones, or
Smith? Must it not be conceded, therefore, that, so far as respondents are concerned, the
matter stands as though no notice was given? 9 A.L.R., at 1129-1130.
[Headnote 2]
Although no claim is made that actual fraud was perpetrated upon the creditors who knew
the deceased only as Parker, the consequences are the same. The failure to notify the creditors
of Parker as well as the creditors of Augusztiny was the equivalent of an affirmative act of
fraud, cf. Villalon v. Bowen, 70 Nev. 456, 470, 273 P.2d 409, 414 (1954), and effectively
deprived them of the opportunity to present their claims.
[Headnote 3]
2. Contrary to respondent's contentions, appellant's request for letters of administration
would not constitute a collateral attack on the order discharging the first administrator, even
had persons with claims against Doris M. Parker been given due notice in the original
estate proceedings. As in most states, our law provides for subsequent administration, as
follows: The final settlement of an estate shall not prevent a subsequent issuance of letters
testamentary or letters of administration should other property of the estate be discovered, or
should it become necessary or proper, from any cause, that letters should again be issued.
NRS 151.240. Under such a statute, the court may issue further letters when there is property
not fully disposed of or some act to be done which only an administrator can do. Bancroft's
Probate Practice, 1188, at 516 (2nd Ed. 1950).
Had proper notice to creditors been given in the original proceedings, in any subsequent
administration, claims could not be satisfied out of property administered and distributed in
the first. Here, however, there remains property that may properly be made the subject of
subsequent administration. In Bodine v. Stinson, supra, we said: It is well established that a
deceased insured's potential right of exoneration under an insurance policy is a sufficient
estate to justify a grant of administration, and we think, satisfies the requirement of In re
Dickerson's Estate, 51 Nev. 69, 268 P. 769, that an estate exist before administration is
justified. 85 Nev., at 659. In Bodine, we held that a special administratrix could not properly
be appointed to defend an action against a deceased tortfeasor, noting that [a] general
administrator would have authority to act upon wrongful death claims. NRS 147.110. 85
Nev., at 660. And we said: The procedure to be followed is the same in every case without
regard to the issue of insurance. 85 Nev., at 661.
[Headnote 4]
In Bodine, of course, we were not concerned with subsequent administration under NRS
151.240, premised on the proposition that there remained a policy of insurance not part of
the estate disposed of in the original proceeding.
proposition that there remained a policy of insurance not part of the estate disposed of in the
original proceeding. Here, appellant not only has averred that an insurance policy remained
subject to administration, but the counsel retained by respondent's insurance carrier to resist
administration acknowledged during oral argument that the policy was not in issue or
distributed in the original proceeding, and was not exhausted by any claims being made
against it. Under NRS 151.240, the lower court's jurisdiction to appoint an administratrix de
bonis non is clear and, where a court has jurisdiction to appoint an administratrix, her
appointment cannot be attacked collaterally. Cf. Forrester v. S. P. Co., 36 Nev. 247, 134 P.
753 (1923). Thus, properly viewed, we think the tactics employed in respondent's name savor
more of a collateral attack than do appellant's proceedings.
Because of our views as expressed herein, we find it unnecessary to treat other contentions
made by the parties.
Reversed.
____________
87 Nev. 397, 397 (1971) Abbott v. Sheriff
RICHARD EUGENE ABBOTT, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 6564
LARRY PRICKETT, Jr., Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 6565
August 10, 1971 487 P.2d 1067
Appeals from orders dismissing petitions for pre-trial habeas corpus. The First Judicial
District Court, Carson City; Richard L. Waters, Jr., Judge.
The Supreme Court held that evidence at preliminary examination was sufficient to
constitute probable cause to hold petitioners for trial on charges of possession of narcotic
drugs and unlawful possession of dangerous drugs without prescription.
Affirmed.
Peter I. Breen, of Carson City, for Appellant Richard Eugene Abbott.
Daniel R. Walsh, of Carson City, for Appellant Larry Prickett, Jr.
Robert List, Attorney General, of Carson City; and Michael Fondi, District Attorney, of
Carson City, for Respondents.
1. Criminal Law.
Evidence at preliminary examination was sufficient to constitute probable cause to hold petitioners for
trial on charges of possession of narcotic drugs and unlawful possession of dangerous drugs without
prescription. NRS 453.030, 454.395.
2. Criminal Law.
In order to hold for trial person accused of possession of narcotics, it is not necessary to prove actual
physical possession.
3. Criminal Law.
Although, in order to hold for trial person accused of possession of narcotics, it is necessary to show both
dominion and control over the substance, and knowledge of its narcotic character, such elements may be
shown by circumstantial evidence and reasonably drawn inferences.
4. Criminal Law.
At preliminary examination, state need not produce quantum of proof necessary to establish guilt of the
accused beyond reasonable doubt and it is not required that the evidence adduced be sufficient to support
conviction.
5. Criminal Law.
Issue of guilt or innocence is not involved at preliminary examination.
6. Criminal Law.
To bind over accused for trial, state is required only to present enough evidence to support reasonable
inference that accused committed the offense charged.
OPINION
Per Curiam:
These appeals have been consolidated for disposition because they arise out of the same
facts and circumstances.
On December 28, 1970, the Carson City Sheriff's Department obtained a warrant to search
an apartment occupied by the appellant, Larry Prickett, and another individual who is not a
party to these appeals, for unlawful possession of marijuana and hallucinogenic drugs. The
officers found the subject premises to be unoccupied when they first attempted to serve the
search warrant. They returned at approximately 1:48 a.m. on December 29, 1970. On that
occasion the premises were found to be occupied.
When an officer knocked, one of the persons inside came to the door and looked out
through a window.
the door and looked out through a window. The officer identified himself as a deputy sheriff
and informed the occupant that he had a search warrant. Upon observing sudden movement
inside the apartment the officers broke open the door and entered. There were only two
persons on the premises. They were the appellants, both of whom were standing in the
kitchen. The apartment was the residence of Larry Prickett. Richard Eugene Abbott was a
visitor.
Richard Eugene Abbott was observed to have in his hand two cigarette boxes, which he
was placing on the drainboard near the kitchen sink. In one of the boxes was a substance
which proved to be marijuana. In the other box were seven LSD tablets, nine seconal
capsules, and two bags containing a number of amphetamine tablets. Both of the appellants
were placed under arrest.
The subsequent search of the apartment found a hypodermic device and a substance which
proved to be LSD, and a quantity of amphetamine powder, inside a dresser drawer in the
bedroom. Also recovered was a smoking pipe with marijuana residue in the bowl. The
officers then searched Larry Prickett's automobile, where another tablet which proved to be
LSD was found.
1

After a preliminary examination both of the appellants were bound over to the district
court on charges of possession of narcotic drugs in violation of NRS 453.030, and unlawful
possession of dangerous drugs without a prescription in violation of NRS 454.395. They both
petitioned for a writ of habeas corpus on the grounds that there was not sufficient evidence to
constitute probable cause to hold them for trial. Their writ applications were both denied, and
these appeals followed.
[Headnote 1]
The record of the testimony presented at the preliminary examination can be read to show
that Richard Eugene Abbott was in actual physical possession of marijuana, seconal and
amphetamine. The officer who was the first to enter the premises testified that he saw
Richard Eugene Abbott with his hand on the two cigarette boxes containing those items, in
the process of placing them on the drainboard in the kitchen, near
____________________

1
Whether or not the authority of the search warrant extended to the automobile of Larry Prickett is not in
issue, because he expressly consented to the search of the vehicle. The sole issue presented by these pre-trial
habeas proceedings is the existence of probable cause to hold the appellants for trial. Cook v. State, 85 Nev.
692, 462 P.2d 523 (1969).
the sink. His own testimony at the preliminary examination was a denial that he had
possession of the cigarette boxes, but the magistrate resolved the conflict against Richard
Eugene Abbott, which he is permitted to do [Bryant v. Sheriff, 86 Nev. 622, 472 P.2d 345
(1970)], and he ordered that the accused be held for trial. We agree.
We likewise find the evidence sufficient to warrant binding Larry Prickett over to the
district court for trial. While he was not found to be in actual possession of the marijuana or
drugs, he was standing in the kitchen with Richard Eugene Abbott, in close proximity to him;
the record of the preliminary examination showed him to have been in residence at the
apartment; some of the material was found inside a dresser drawer in the bedroom; and one of
the LSD tablets was found in his automobile. Such evidence, and the inferences which
reasonably may be drawn therefrom, show Larry Prickett to have had such dominion and
control over the substances, and knowledge of its character, as to satisfy the minimum proof
requirement to constitute probable cause. Hall v. Sheriff, 86 Nev. 456, 470 P.2d 422 (1970);
Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971).
[Headnotes 2-6]
In order to hold a person accused of possession of narcotics it is not necessary to prove
actual physical possession. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969). It is
necessary to show both dominion and control over the substance, and knowledge of its
narcotic character, but those elements may be shown by circumstantial evidence and
reasonably drawn inferences. Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967). At the
preliminary examination the state need not produce the quantum of proof necessary to
establish the guilt of the accused beyond a reasonable doubt. Robertson v. Sheriff, 85 Nev.
681, 462 P.2d 528 (1969). Neither is it required that the evidence adduced there be sufficient
to support a conviction. Maskaly v. State, supra. The issue of guilt or innocence is not
involved at the preliminary examination. Marcum v. Sheriff, 85 Nev. 175, 451 P.2d 845
(1969). To bind over an accused for trial the state is required only to present enough evidence
to support a reasonable inference that the accused committed the offense charged. Johnson v.
State, 82 Nev. 338, 418 P.2d 495 (1966); Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963).
Upon the evidence presented in these cases the state has met its burden of proof to show
probable cause to hold both of the appellants, and the orders of the district court
dismissing their petitions for habeas corpus are affirmed.
appellants, and the orders of the district court dismissing their petitions for habeas corpus are
affirmed.
Remittitur shall issue immediately, and the orders entered by this court on March 10, 1971,
staying the trial of these cases are vacated and set aside.
____________
87 Nev. 401, 401 (1971) Cowgill v. Dodd
PAUL COWGILL, as Administrator of the Estate of JOSEPH M. PABIS; H. H. PORTER, as
Administrator of the Estate of HERBERT E. KIMMEL, Appellants, v. KATE N. DODD,
Individually, and KATE N. DODD, as Guardian of the Estate of RICHARD RYLAND
DODD, Incompetent, Respondents.
No. 6417
September 1, 1971 488 P.2d 353
Appeal from order of district court denying motion for leave to file supplemental
counterclaim; Second Judicial District Court, Washoe County; Emile J. Gezelin, Judge.
The Supreme Court held that case was terminated as to all issues settled by judgment when
remittitur was issued from the Supreme Court on prior appeal and prevailing party was not
entitled to reopen the case for the purpose of assessing attorneys' fees incurred in successfully
defending the post-judgment appeal; and that order denying motion for leave to file
supplemental counterclaim seeking award of such fees was not appealable order.
Appeal dismissed.
Streeter, Sala & McAuliffe, of Reno, for Appellants.
Oliver C. Custer; Vargas, Bartlett & Dixon and Frederic R. Starich, of Reno, for
Respondents.
Case was terminated as to all issues settled by judgment when remittitur was issued from the Supreme
Court, and prevailing party was not entitled to reopen the case for purpose of assessing attorneys' fees
incurred in successfully defending the post-judgment appeal.
Order denying motion, made after judgment was satisfied, whereby prevailing party requested
leave to file supplemental counterclaim seeking additional award of attorneys' fees
for services rendered in successfully defending appeal was not appealable order.
87 Nev. 401, 402 (1971) Cowgill v. Dodd
whereby prevailing party requested leave to file supplemental counterclaim seeking additional award of
attorneys' fees for services rendered in successfully defending appeal was not appealable order.
OPINION
Per Curiam:
In Dodd v. Cowgill, 85 Nev. 705, 463 P.2d 482 (1969), we affirmed a district court
judgment for the lessees upon their counterclaim, including an award of attorneys fees. The
lease agreement provided for such fees to the prevailing party. After remittitur from this
Court the unsuccessful lessor paid the judgment and a satisfaction of judgment was filed.
About one month later counsel for lessees requested leave from the district court to file a
supplemental counterclaim in that case seeking an additional award of attorneys fees for
services rendered in successfully defending the lessor's appeal from the judgment. The district
court denied that motion and this appeal followed.
[Headnotes 1, 2]
Dodd v. Cowgill, supra, was terminated as to all issues settled by the judgment when
remittitur was issued. Cf. Misty Management v. District Ct., 83 Nev. 180, 426 P.2d 728
(1967). Provision is not made to re-open the case for the purpose of assessing attorneys fees
incurred in successfully defending the post-judgment appeal, nor is the order from which this
appeal is taken stated to be an appealable order. We intimate no opinion concerning the
propriety of an independent action to recover such fees, Riemer v. Riemer, 72 Nev. 257, 302
P.2d 483 (1956); Riemer v. Riemer, 73 Nev. 197, 314 P.2d 381 (1957), nor as to the validity
of possible defenses thereto.
Appeal dismissed.
____________
87 Nev. 402, 402 (1971) Lum v. Stinnett
JAMES LUM, M.D., Appellant, v. WILLIAM
STINNETT, Respondent.
No. 6220
September 3, 1971 488 P.2d 347
Appeal from judgment of the Eighth Judicial District Court, Clark County, and from order
denying motion for judgment n.o.v. or new trial; Taylor H. Wines, Judge.
Malpractice action by patient against three physicians alleging that they negligently failed
to detect and treat compression fracture in his spine. The district court granted motions for
dismissal of two insured defendants but denied third defendant's motion for dismissal and
entered judgment on jury verdict against such third defendant, and he appealed. The Supreme
Court, Gunderson, J., held that agreements, by which insurance carriers for the two dismissed
defendants accepted plaintiff's proposal that carriers pay sum necessary to bring recovery up
to $20,000 if jury awarded less than $20,000 in return for plaintiff's not executing against
insured defendants if verdict exceeded $20,000 and not opposing motion for directed verdict
in their favor on condition that plaintiff in addition agree to prosecute his action against third
defendant and not settle, without consent, for less than $20,000, were contrary to law and
public policy, and that action on remand would be reinstated against the two dismissed
defendants as well as third defendant.
Reversed and remanded; respondent's action reinstated against appellant's
co-defendants.
Austin & Thorndal, of Las Vegas, for Appellant.
Singleton, Beckley, DeLanoy, Jemison & Reid, Chartered, of Las Vegas, for Respondent.
1. Champerty and Maintenance.
Maintaining suit of another is unlawful unless maintaining person has some interest in subject of the suit
or is connected with such other person by ties of consanguinity or affinity.
2. Champerty and Maintenance; Contracts.
Agreements, by which insurance carriers accepted proposal of plaintiff patient, who was suing two
insured physicians and third physician for malpractice, that carriers pay sum necessary to bring recovery up
to $20,000 if jury awarded less than $20,000 in return for plaintiff's not executing against the insured
physicians if verdict exceeded $20,000 and not opposing motion for directed verdict in their favor on
condition that plaintiff in addition agree to prosecute his action against third physician and not settle,
without consent, for less than $20,000, were contrary to law and public policy.
A champertous agreement between a plaintiff and carriers insuring less than all defendants calls for
improper conduct on part of all attorneys concerned and contravenes policy expressed in rules of
professional conduct. SCR 163 et seq.
4. Dismissal and Nonsuit.
In absence of expressed determination that there was no just reason for delay, judgment of dismissal as to
two of three physician-defendants in malpractice action was not final. NRCP 54(b).
Where patient's agreement with carriers insuring two of three defendant physicians in malpractice action,
in which he agreed to not oppose motion for directed verdict in favor of the two insured physicians and to
prosecute his action against third physician and not settle, without consent, for less than $20,000 if carriers
would pay sum necessary to bring recovery up to $20,000 should jury award less than $20,000, was void,
and trial court granted dismissal of the two insured physicians while denying third physician's motion for
dismissal, action on remand would be reinstated against the two insured physicians as well as the third
physician.
OPINION
This appeal arises from a malpractice action commenced by respondent against three
physicians: Dr. Greene, who attended respondent at a hospital emergency room; Dr. Romeo,
respondent's family doctor, who consulted with Greene by telephone, directed that
respondent be X-rayed, and thereafter attended him; and appellant Lum, who read the
X-rays. Respondent's theory was that defendants negligently failed to detect and treat a
compression fracture in respondent's spine. Issues dispositive of this appeal concern the
propriety and effect of an agreement by which respondent and insurance carriers for Greene
and Romeo settled their disputes, throwing all responsibility for a $50,000 verdict on
appellant Lum.
All parties announced ready for trial on October 29, 1969, and jury selection continued
through the morning of October 30; counsel for Greene and Romeo took a major part in
choosing the jury, jurors being selected whom appellant's counsel might well have rejected
had he known his apparent allies were then negotiating a settlement with respondent. By a
letter hand-delivered to counsel for Greene and Romeo on October 29, respondent's counsel,
with some self-serving recitals, proposed: (1) if the jury awarded nothing or less than
$20,000, the insurance carriers for Greene and Romeo were to pay the sum necessary to bring
recovery to $20,000; (2) if the verdict exceeded $20,000, respondent would not execute
against Greene and Romeo; and (3) respondent would not oppose a motion for directed
verdict in favor of Greene and Romeo.
1
On October 30, when jury selection was
completed, counsel for Greene and Romeo told appellant's counsel something of this
proposal, and that they had decided to accept it.
____________________

1
Melded into the proposal were at least these self-serving recitals: (a) appellant's insurance carrier had taken
an irresponsible position; (b) this was why respondent would deal separately concerning Greene and Romeo;
(c) respondent's counsel believed Greene and Romeo negligent;
On October 30, when jury selection was completed, counsel for Greene and Romeo told
appellant's counsel something of this proposal, and that they had decided to accept it. By
letter of October 31, counsel for Greene and Romeo did advise respondent's counsel they
accepted the proposal, if respondent's counsel agreed not to oppose a motion made pursuant
to N. R. C. P. 41(b) or N. R. C. P. 50(a) at the close of plaintiff's case, to press forth
actively against Dr. Lum, not to settle with him for less than $20,000 without their written
consent, and to urge a jury verdict in excess of $20,000. Respondent's counsel approved and
signed this counter-proposal.
On November 3, when court reconvened to begin trial, appellant's counsel moved to
withdraw and asked a continuance because he could not agree with appellant's insurance
carrier on how to meet problems the settlement posed to his defense. The motion being
denied, a trial ensued, noteworthy aspects of which were as follows.
First, while Romeo seemed the prime target of respondent's Complaint, respondent's
counsel focused on appellant in his opening statement to the jury, displaying apparent candor
regarding Greene and Romeo.
2
Greene's counsel then announced he would reserve his
opening statement; thus, appellant's counsel could do the same, or hazard being left no way to
meet opening statements made later by counsel for the co-defendants.
Thereafter, though now furthering the interests of Greene, Romeo, and their insurance
carriers, respondent's counsel called Greene as an adverse party, and then opposed full
cross-examination by appellant's counsel on the ground his own interrogation was
cross-examination; he defeated an objection that he was leading Romeo by contending
Romeo was an adverse witness, and led him at will. When respondent's counsel omitted to
ask respondent's former employer if respondent had received "tips" as well as wages,
Greene's counsel went into this item of special damage on cross-examination," in a
notable departure from his usual nonchalance.
____________________
(d) nonetheless, they recognize[d] that the greater share of responsibility is upon Dr. Lum, and believed him
80% to blame; (e) respondent's damages were approximately $100,000; (f) accordingly, respondent was willing
to settle concerning Greene and Romeo for $20,000; (g) a smaller verdict was no more than a remote
possibility.

2
Now, defendant Romeo is a general practitioner and he will testify that he relied upon the x-rays, or the
x-ray report of Dr. Lum.
Now, picture, if you will, we have defendant Greene, who was in here under a limited license, treating
people only in the emergency room under the direction of Dr. Romeo. We have Dr. Romeo, who is a general
practitioner, who, in turn, is relying on the person who is the expert on radiographic study, Dr. Lum.
respondent had received tips as well as wages, Greene's counsel went into this item of
special damage on cross-examination, in a notable departure from his usual nonchalance. In
contrast to the placid role played by counsel for appellant's co-defendants, his own
counsel's efforts must have suggested only appellant had cause for concern. This inference
can only have been strengthened when, at the close of respondent's case, the court granted
41(b) motions for dismissal of Greene and Romeo, without opposition by respondent's
counsel, but over appellant's objection that he would be prejudiced if not similarly dismissed.
Appellant's 41(b) motion for dismissal was denied.
Appellant's counsel then moved for a mistrial, on grounds that the dismissal of Greene and
Romeo would prejudice Defendant Lum in the eyes of the jury, that the jury would infer
they were free from negligence while he was not, and that the overall prejudicial effect of
these circumstances cannot be overcome by any instructions or admonitions to the jury.
Respondent's counsel countered, saying: if this court desires and if he desires to put the
agreement in before the jury, I think that that would probably be all right. If he desire to put in
the agreement, the written agreement into the jury. After further colloquy, the court required
copies of the agreement for the court and appellant's counsel; then, it denied the motion for
mistrial, without determining whether, or how, the jury might be informed of the agreement.
3

By this time, having already called Greene and Romeo as adverse witnesses, respondent
had the benefit of their testimony without being bound by it. By logical extension of the trial
court's rulings, if appellant recalled them now, they would be his witnesses, particularly since
they now were not parties. Appellant's counsel tried another approach.
Uncontroverted testimony supporting appellant's motion for a new trial shows before
closing his case, appellant's counsel asked that counsel approach the bench. He was, he told
the court, prepared to call a witness to prove the terms of the agreement, and inquired how the
problem was to be handled. (Perhaps recognizing dangers inherent in calling Greene or
Romeo, he testified he had decided to call respondent's counsel, or counsel for Greene or
Romeo.) The court told him the matter would be handled by jury instructions," and it
does not appear respondent's counsel manifested opposition to this.
____________________

3
Testimony at the hearing of appellant's Motion for New Trial is conflicting on whether appellant's counsel
had seen any part of the agreement before. Counsel for the co-defendants say they showed him respondent's
original proposal of October 29, after jury selection ended October 30; appellant's trial counsel says they only
told him about it, and the record suggests he did not know all its terms.
matter would be handled by jury instructions, and it does not appear respondent's counsel
manifested opposition to this.
However, the record reflects when appellant's counsel submitted an instruction on the
subject, and reminded the court it had said the matter would be handled by instructions,
respondent's counsel said, it is our position that if he desired to show that there was an
agreement in existence that the best evidence would be the agreement itself. Without
indicating what instruction it had intended to give, the court refused the one offered by
appellant, saying Greene and Romeo were dismissed by the court pursuant to Rule 41(b).
Naturally, since Greene and Romeo had been thus dismissed, no verdict forms regarding them
were provided the jury, nor could any special instructions regarding their possible liability be
expected. The jury was, in effect, asked to decide if appellant was negligent, or no one was.
On final argument to the jury, respondent's counsel did not suggest that Greene or Romeo
were in the least negligent, although counsel's letter of October 29 recited the belief this was
so. Nor did counsel suggest the verdict be diminished 20 percent, or any amount, so appellant
would not have to pay for the negligence of Greene and Romeo. Of them he said, they both
are no longer in the case, and proceeded to rely on their testimony. He even suggested
Romeo's apparent respect for one of respondent's other witnesses was reason to credit the
latter.
4

The jury returned a verdict for $50,000; judgment was entered for the amount of the
verdict plus costs; appellant moved for judgment notwithstanding the verdict or alternatively
for a new trial; the court denied this motion; hence, this appeal.
1. First, we perceive that strangers to the action, insurance carriers for Greene and Romeo
(themselves strangers to claims against appellant), promised to pay $20,000 if respondent
would prosecute his action against appellant, and not settle without consent for less than
$20,000. Such an agreement is the very definition of the common law offense of
maintenance. "Maintenance exists when a person without interest in a suit officiously
intermeddles therein by assisting either party with money or otherwise to prosecute or
defend it."
____________________

4
In regard to this, counsel said:
Now it's interesting to note that Dr. Romeo, one of the general practitioners in this area, an active one, I
might say, thought enough of Dr. Waters and his reputation and ability as an orthopedic surgeon to send William
Stinnett to him.
He also said:
Ithe reason I say this was such a hard case, we had to rely on my ability to ferret out the truth on
cross-examination of the witnesses for the defense; and I don't know whether I've done my job adequately or not,
ladies and gentlemen of the jury.
the very definition of the common law offense of maintenance. Maintenance exists when a
person without interest in a suit officiously intermeddles therein by assisting either party with
money or otherwise to prosecute or defend it. 14 C.J.S., Champerty and Maintenance, l(b).
In addition, the insurance carriers were to profit from any recovery against appellant; for
while they settled their liability at $20,000, any verdict against appellant was to reduce their
obligation. Champerty is maintenance with the additional feature of an agreement for the
payment of compensation or personal profit from the subject matter of the suit. 14 C.J.S.,
Champerty and Maintenance, 2.
[Headnote 1]
Our own decisions establish: To maintain the suit of another is now, and always has been,
held to be unlawful, unless the person maintaining has some interest in the subject of the suit,
or unless he is connected with the assignor by ties of consanguinity or affinity. Cf. Gruber v.
Baker, 20 Nev. 453, 469, 23 P. 858, 862 (1890). If insurance companies may contend, and
they do, that they have so little relationship to actions against their insureds that the policies
they issue are not discoverable even by vitally concerned plaintiffs, cf. Washoe Co. Bd. Sch.
Tr. v. Pirhala, 84 Nev. 1, 435 P.2d 756 (1968), then surely no one will contend a carrier has
such relationship to a plaintiff's action as justifies fostering it, for profit, against defendants
with whom the carrier and its insureds have no relationship whatever.
Next, we perceive the insurance companies were to become the parties truly interested in
the action, to the extent of $20,000, with right to refuse its being settled for less. This brings
attention to a variant of the consideration first mentioned. Under a rule like our NRCP 17(a),
discussing a somewhat similar settlement agreement, another court has said:
F. R. C. P. 17(a) states that [e]very action shall be prosecuted in the name of the real
party in interest.' This has been defined as the person who by the substantive law has the
right to be enforced.' 3 Moore's Federal Practice, par. 17.02 at page 1305 (2nd ed. 1964). The
purpose behind this requirement is to protect individuals from the harassment of suits by
persons who do not have the power to make final and binding decisions concerning
prosecution, compromise and settlement. . . . Under Pennsylvania law, the attempted
assignment from Kenrich to Jerome Kline is void as champertous and against public policy,
and vested no rights in Kline sufficient to maintain this cause of action."
public policy, and vested no rights in Kline sufficient to maintain this cause of action.
Kenrich Corporation v. Miller, 256 F.Supp. 15, 17-18 (E.D. Penn. 1966).
[Headnote 2]
We deem agreements whereby insurance carriers agree to any pay consideration to foster
litigation in which they are not interested, in order to avoid their own liabilities, contrary to
law and public policy.
5

2. Considering propriety of certain settlement agreements calling for defense counsel to
participate in litigation when they were actually interested in furthering the plaintiff's
cause, the Arizona State Bar Committee on Rules of Professional Conduct concluded the
same contravened policy of Canons of Professional Conduct concerned with representing
conflicting interests, candor and fairness, taking technical advantage of opposing counsel,
and unjustifiable litigation.6
____________________

5
Klotz v. Lee, 114 A.2d 746 (N.J. Super. 1955), one of two decisions upon which respondent relies, is no
authority to the contrary, because that case involved an essentially different type of agreement. A comparison to
the one before us is instructive.
. . . The arrangement was, in substance, that if the jury returned a verdict, and regardless of its form, the
company would pay plaintiff and the latter would accept the sum of $12,500 in full settlement and satisfaction of
his claim against Lee [settling defendant], subject to the understanding that if the verdict was against both Lee
and Breish [co-defendant] plaintiff would not exact more than 50% of the verdict from Breish or his insurance
carrier. Nothing was paid pursuant to this agreement until after the trial. Thereupon Lee's insurance company did
pay plaintiff $12,500 and the trial court consequently reduced the $35,000 verdict returned in favor of plaintiff
and against the Breishes by that amount. Id., at 749.
Lee had a cross claim against the Breishes for personal injuries and damage to his car; the Breishes had a
cross claim against Lee for damages to the Breish car; thus, if Lee did so, Lee had a legitimate interest in
advocating Breish was negligent.
It is apparent neither Lee nor his insurance carrier received any right to benefit from a judgment by the
plaintiff against Breish, save an equitable one that Lee should pay no more than half of any judgment against
both Lee and Breish.
It is equally apparent that, because Lee might be compelled to pay half of a judgment against both (subject to
a limitation of $12,500), he remained somewhat interested in holding the amount of such a judgment below
$25,000. For example, if the jury had returned a judgment of $20,000 against both, Lee would only have paid
$10,000, rather than $12,500.
Breish, not Lee's insurance carrier, benefited when the jury returned a verdict only against Breish; for the
carrier paid plaintiff $12,500 under the agreement, and the court consequently reduced the $35,000 verdict
against Breish by that amount.
Manifestly, the agreement was neither champertous, nor did it tend, under the circumstances of the case, to
encourage sham litigation. The case was appealed to the New Jersey Supreme Court, Klotz v. Lee, 121 A.2d 369
(N.J. 1956), and that court pointed out Lee retained an adversary position, which he presented with no
diminution in the vigor. Id., at 372.
when they were actually interested in furthering the plaintiff's cause, the Arizona State Bar
Committee on Rules of Professional Conduct concluded the same contravened policy of
Canons of Professional Conduct concerned with representing conflicting interests, candor and
fairness, taking technical advantage of opposing counsel, and unjustifiable litigation.
6

The Committee said:
Drinker's text on Legal Ethics,' at page 75, cites New York and other judicial and ethical
rulings in support of his statements that:
A lawyer may not, in order to get decided a question of law in which he is interested, foist
a fictitious controversy on the court;' and, again: He may not * * * ostensibly appear for a
stooge client when he really represents others.'
These statements are not direct parallels, but they express a clear intent, with respect to
the canons cited, that trials and legal proceedings shall be honest, shall call forth the best
possible legal abilities of the lawyer on behalf of his client, and shall be directed to the
achievement of justice. Op. No. 70-18, Ariz. State Bar Committee on Rules of Prof. Conduct
(1970); emphasis is in original.
[Headnote 3]
Manifestly, in view of these considerations, the champertous agreement between
respondent and the insurance carriers for Greene and Romeo called for improper conduct on
the part of all attorneys concerned; and while we recognize they became involved only out of
devotion to their clients, the agreement nonetheless contravened policy expressed in the
Rules of Professional Conduct, SCR 163 et seq.7
____________________

6
The agreements under consideration were:
A. An agreement in the nature of a covenant not to execute whereby the insurance company for A and B would
pay plaintiff $10,000.00 prior to trial, and plaintiff would agree not to execute on any assets of A and B for any
judgment against A and B in excess of $10,000.00[.] Counsel would also agree that these defendants would
participate actively in the trial. The jury would not be informed of the agreement and the court and other defense
counsel may not be informed thereof prior to verdict; or
B. An agreement that A and B would participate fully in the trial and, in the event of a judgment against all
defendants, execution would be levied only against the officer and his employer, execution not being issued
against A and B's insurance company, or against A and B's private property, unless the insurance limitation for
the other defendants should fail to satisfy the judgment. The other defendants and the court may not be advised
of such agreement.
nonetheless contravened policy expressed in the Rules of Professional Conduct, SCR 163 et
seq.
7

Respondent's counsel contend everything they did was open and aboveboard, and we are
sure they did not perceive the essential impropriety of the agreement. Yet they cannot, we
think, suggest they did not bargain for and utilize its inherent advantages, which we find
inimical to true adversary process. If they wanted no more than a fair trial against appellant
Lum, why was the agreement framed to retain Greene and Romeo as sham adverse parties
in the case? It is no answer to say appellant was not stabbed in the back. If his hands were
tied, it matters little that he could see the blow coming.
Respondent suggests appellant was free to bring the agreement into the open, e.g. through
examination of Greene and Romeo. On interrogation by this court during oral argument,
respondent's counsel acknowledged the agreement itself might prejudice the jury, since it
contains references to respondent's damages, and to appellant's liability, his insurance, and his
insurance carrier's irresponsible position. Counsel met this dilemma by telling us appellant
might have asked the trial court to excise these prejudicial portions of the agreement; yet
counsel conceded this request would have been met by an objection based on the best
evidence rule, as was appellant's attempt to obtain an instruction on the subject. Back to his
dilemma, counsel suggested to us a best evidence objection to use of an edited copy of such
an agreement probably is unsound. Thus, we think, the sum of counsel's argument is that
nimbler opposing counsel and an alert trial judge might have defeated his plan.
With this we are not concerned; nor are we at all sure it is so. If appellant's counsel had
undertaken to examine Greene and Romeo on an edited text of the agreement, could he be
sure its prejudicial aspects would not be revealed to the jury by their answers?
____________________

7
Ponderosa Timber & Clearing Co. v. Emrich, 86 Nev. 625, 472 P.2d 358 (1970), the other case on which
respondent relies, is not authority to the contrary. There we expressly pointed out that the validity of the
agreement was not before us, because the lower court had set it aside on other grounds, and that court order had
not been challenged. See: n. 1, 86 Nev., at 627; 472 P.2d, at 360. Furthermore, a judgment had been entered
against the co-defendants, as well as the appellants; the lower court ordered a new trial, unless the plaintiff filed
a disclaimer for half the judgment, and the disclaimer was filed; thus, any intention to throw the entire liability of
the judgment on appellants had been defeated when this court reviewed the case. On the record before it, a
majority of this court decided the appellants were not prejudiced by a judgment for the balance.
sure its prejudicial aspects would not be revealed to the jury by their answers? Further, had its
bare terms been laid before the jury, how would this have affected their treatment of
appellant? Might they not then be more casual about awarding at least some recovery against
appellant, knowing Greene and Romeo must pay the difference up to $20,000? Might they
not infer, even from the agreement's bare terms, that the others considered appellant the
intransigent wrongdoer, and let this affect their verdict against him? Might knowledge a
minimum value of $20,000 had been placed on respondent's injuries affect their
deliberations? We do not know; we know only that appellant had the right to litigate his case
without hazarding the prospect that such considerations might affect the jury's verdict.
Respondent contends no prejudice is shown because the co-defendants testified
substantially as in their depositions; appellant suggests there were material differences. If
respondent be correct, we still could not determine the trial testimony would not have been
different absent the agreement, or its impact different if not supposedly elicited from adverse
parties. Further, if we could make these determinations, this still would not meet appellant's
basic contention that, by other irregularities proceeding from the agreement, the trial was
deprived its proper adversary character.
It is sufficient to see from the record, as we do, that such irregularities so warped
presentation of the case as to deny a fair trial, that the record contains nothing amounting to a
waiver, and that the question has been preserved for our review. As mentioned, appellant's
counsel repeatedly sought the trial court's protection, showing no disposition to gamble on the
verdict and later complain. Most of these attempts are involved in appellant's assignments of
error, but we need not consider the specifics of all of them. We see no waiver; the gravamen
of the problem was lucidly presented by appellant's motion for new trial; the court erred in
denying that motion.
[Headnotes 4, 5]
Because the lower court made no express determination that there was no just reason for
delay, its dismissal as to Greene and Romeo was perhaps erroneous for this reason alone,
and certainly not final. NRCP 54(b); Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d 956
(1967); Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963). Because respondent's
agreement with the carriers for Greene and Romeo is void, in order to place all parties in their
original position as nearly as may be, we order that on remand the action shall stand
reinstated against Greene and Romeo, as well as appellant.
we order that on remand the action shall stand reinstated against Greene and Romeo, as well
as appellant.
We withhold determination of other issues relating to the sufficiency of the evidence and
propriety of instructions, first, because some might affect Greene and Romeo who are not
before us, and second, upon a proper new trial, the issues and evidence might well be
different.
The cause is reversed and remanded.
____________
87 Nev. 413, 413 (1971) Casey v. State
JOHN JAY CASEY, Jr., Appellant, v. THE STATE
No. 6366
September 8, 1971 488 P.2d 546
Appeal from judgment of conviction and sentence of the Fifth Judicial District Court, Nye
Defendant was convicted of grand larceny of livestock, and he appealed. The Supreme
Court, Gunderson, J., held that Fourth Amendment right to privacy of defendant was not
invaded when state cattle inspectors conducted surveillance and search of open field in which
defendant slaughtered cattle in question, notwithstanding field was inside fences of
defendant's uncle's ranch but separated by another fence from ranch dwelling some 500 to
700 yards away.
Affirmed.
Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Appellant.
Robert List, Attorney General, of Carson City, and William P. Beko, District Attorney, Nye
County, for Respondent.
Fourth Amendment right to privacy of defendant who was convicted of grand larceny of livestock was
not invaded when state cattle inspectors conducted surveillance and search of open field in which defendant
slaughtered cattle in question, notwithstanding field was inside fences of defendant's uncle's ranch but
separated by another fence from ranch dwelling some 500 to 700 yards away. NRS 205.225;
U.S.C.A.Const. Amend. 4.
87 Nev. 413, 414 (1971) Casey v. State
2. Witnesses.
Where state cattle inspectors testified for state in prosecution for grand larceny of livestock and were
cross-examined, allowing further cross-examination relative to prior testimony and limiting impeachment
of inspectors, who defendant sought to recall as adverse witnesses for impeachment by reference to
affidavit executed to obtain a search warrant, to matters the court deemed material and not collateral was
not abuse of discretion. NRS 205.225.
OPINION
Convicted of Grand Larceny of Livestock in violation of NRS 205.225, appellant
contends inter alia: (1) that his Fourth Amendment right to privacy was invaded when state
cattle inspectors surreptitiously conducted surveillance and search of the place appellant
slaughtered the cattle in question, inside fences of his uncle's ranch, but separated by another
fence from the ranch dwelling some 500 to 700 yards away; and (2) that the court erroneously
limited impeachment of the state cattle inspectors.
[Headnote 1]
1. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), decided
evidence obtained through unauthorized entry upon open land is admissible. As to that, it is
enough to say that, apart from the justification, the special protection accorded by the Fourth
Amendment to the people in their persons, houses, papers, and effects,' is not extended to the
open fields. The distinction between the latter and the house is as old as the common law. 4
Bl. Comm. 223, 225, 226. 265 U.S., at 59. Since Hester, the courts have quite consistently
held the Fourth Amendment's protection of privacy does not extend to open land, at least
when the curtilage of a home is not breached or invaded in some way.
1
This rule has been
applied even though the land was fenced, Stark v. United States, 44 F.2d 946 (8th Cir. 1930),
Janney v. United States, 206 F.2d 601 (4th Cir. 1953); even though the land was posted with
no trespassing signs, McDowell v. United States, 383 F.2d 599 (8th Cir. 1967); and even
though the evidence discovered was not in plain view, Care v. United States, 231 F.2d 22
{10th Cir.
____________________

1
A singular exception appears to be the Supreme Court of Mississippi. See: Davidson v. State, 240 So.2d
463 (Miss. 1970), which was grounded upon Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct.
182, 64 L.Ed. 319 (1920), a case not concerned with open fields.
87 Nev. 413, 415 (1971) Casey v. State
evidence discovered was not in plain view, Care v. United States, 231 F.2d 22 (10th Cir.
1956). See also: Dulek v. United States, 16 F.2d 275 (6th Cir. 1926); Edwards v. United
States, 206 F.2d 855 (10th Cir. 1953); Constitutional LawConstitutionally Protected
AreasSearch and Seizure, 18 Mercer L.Rev. 447 (1967).
As appellant contends, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967), may require us to accord some search issues different analysis than in the past;
however, we find nothing in Katz signaling demise of the principle that an individual
ordinarily has no constitutionally protected right to expect privacy in open fields.
2
Post-Katz
cases involving open field situations continue to apply the historic rule. Fullbright v. United
States, 392 F.2d 432 (10th Cir. 1968); State v. Brown, 461 P.2d 836 (Ore.App. 1969); cf.
United States v. Capps, 435 F.2d 637 (9th Cir. 1970). Post-Katz cases upon which appellant
relies do not involve open field situations.
3
The burden of establishing an unconstitutional
search was, of course, on the appellant, cf. Fullbright v. United States and Care v. United
States, supra; and we cannot hold the lower court erred in deciding this burden was not met,
when the record justifies a determination that the area in question was not shown to be more
than an open field.
[Headnote 2]
2. Regarding appellant's contention that the trial court deprived defendant of a fair trial
by refusing to allow impeachment of state witnesses on a matter in issue, the record shows
the witnesses in question testified for the state, and were cross-examined. Later, during his
own case, appellant sought to recall them as adverse witnesses for impeachment by
reference to an affidavit executed to obtain a search warrant. The prosecuting attorney
pointed out this procedure was inappropriate; however, the trial court offered and did
permit defense counsel to "call him for a little additional cross-examination," specifying
"it will have to relate to prior testimony."
____________________

2
We note in passing that Katz is not necessarily the face of the future. See: Chambers v. Maroney: New
Dimensions in the Law of Search and Seizure, 46 Indiana L.J. 257 (Winter 1971).

3
Appellant cites: State of Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968), in which the investigating officer
not only committed a trespass, but invaded the privacy of a home, by peering through a curtained window;
Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968), in which government agents searched the backyard
of defendant's abode no more than 35 feet from the building; United States v. Davis, 423 F.2d 974 (5th Cir.
1970), decided on the rationale that the curtilage of the home had been invaded; and Cohen v. Superior Court,
85 Cal.Rptr. 354 (Cal.App. 1970), which held that whether defendant occupants of a fourth floor apartment
could reasonably anticipate they were free from uninvited inspection through a window opening onto a fire
escape presented a fact question.
87 Nev. 413, 416 (1971) Casey v. State
prosecuting attorney pointed out this procedure was inappropriate; however, the trial court
offered and did permit defense counsel to call him for a little additional cross-examination,
specifying it will have to relate to prior testimony. The court limited impeachment to
matters it deemed material, and not collateral.
We need not decide whether such limitations on cross-examination would have been error,
if imposed when the witnesses first testified. An accused may be permitted to recall a
witness for cross-examination after the state has closed its case. . . . It is, however, for the
discretion of the court to disallow such recross-examination when the party seeking it has had
abundant opportunity to draw out his case. 3 Wharton's Crim. Ev., 900 (12th Ed. 1955).
On the record in this case, we could not find that the lower court abused its discretion, even
had it refused any additional cross-examination whatever.
Appellant's other assignments of error have been considered, and we perceive no
prejudicial error.
4

Affirmed.
Zenoff, C. J., Batjer and Mowbray, JJ., and Compton, D. J., concur.
____________________

4
Appellant's present counsel did not represent him at trial in court below.
____________
87 Nev. 416, 416 (1971) Fox v. Fox
ABE FOX, Appellant, v. ELLENA FOX, Respondent.
No. 6048
September 10, 1971 488 P.2d 548
Appeal from decree of the Eighth Judicial District Court, Clark County, in a divorce
proceeding; Howard W. Babcock, Judge.
Divorce action. After two remands, 81 Nev. 186, 401 P.2d 53 (1965), and 84 Nev. 368,
441 P.2d 678 (1968), the district court entered decree from which husband appealed. The
Supreme Court held that where at first hearing of divorce action husband could have
presented evidence to explain source of the theretofore unexplained deposits used in
increasing good will value of business for purpose of computing wife's share, equity did not
require that, on remand for purpose of hearing objections to special master's report without
taking any new evidence, husband be permitted to proffer explanatory matter.
Affirmed.
87 Nev. 416, 417 (1971) Fox v. Fox
Morton Galane, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
1. Judgment.
Courts have power to correct prior judgments and decrees in some circumstances involving fraud.
2. Divorce.
Where at first hearing of divorce action husband could have presented evidence to explain source of the
theretofore unexplained deposits used in increasing good will value of business for purpose of computing
wife's share, equity did not require that, on remand for purpose of hearing objections to special master's
report, without taking any new evidence, husband be permitted to proffer explanatory matter. NRCP
54(b).
OPINION
Per Curiam:
In this divorce action there have been two prior appeals, concerning the need to consider
$123,706.37 in unidentified deposits when computing the good will of the family
business. Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965), and Fox v. Fox, 84 Nev. 368, 441
P.2d 678 (1968). In making the second remand, we specifically determined our first opinion
did not intend that any new evidence be taken, saying: The lower court shall hear the
objections to the special master's report and enter its second amended decree of divorce,
consistent with Fox v. Fox, supra, and with this opinion. In all other respects the original
decree of divorce is affirmed. 84 Nev., at 371. No petition for rehearing was filed.
The husband now appeals from a decree substantially like that concerned in the second
Fox appeal, awarding the wife an additional $86,300 for increased good will value,
recomputed upon consideration of the unidentified deposits as business income. Although
this was consistent with our earlier mandates, the husband contends the lower court erred in
not allowing additional evidence to explain the so-called unidentified deposits of Foxy's
Restaurant (Mission Enterprises, Inc.) in the sum of $123,706.37.
1

[Headnotes 1, 2]
While the lower court was, of course, constrained to obey our mandates, the husband asks
us to correct our prior rulings, i.e. to require the lower court to allow him another
opportunity to explain the source of the heretofore "unexplained deposits."
____________________

1
Appellant cites: NRCP 54(b), providing that a decision is subject to revision at any time before entry of a
judgment adjudicating all the claims and the right and liabilities of all the parties; Alamo Irrigation Co. v. U.S.,
81 Nev. 390, 404 P.2d 5 (1965), concerning correction of
87 Nev. 416, 418 (1971) Fox v. Fox
i.e. to require the lower court to allow him another opportunity to explain the source of the
heretofore unexplained deposits. Acknowledging that courts have power to correct prior
judgments and decrees in some circumstances (e.g. Villalon v. Bowen, 70 Nev. 456, 273 P.2d
409 (1954), involving fraud, and Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397 (1960),
involving mistake), equity does not require a remand to permit appellant to proffer
explanatory matter he should have adduced at the first hearing of this cause. Cf. Drespel v.
Drespel, 56 Nev. 368, 45 P.2d 792 (1935); cf. Pinschower v. Hanks, 18 Nev. 99, 1 P. 454
(1883).
Other assignments of error are equally without merit.
Affirmed.
____________________
a clerical error; Lane v. Matthews, 251 P.2d 303 (Ariz. 1952), involving the inherent power of an appellate court
to entertain a second rehearing; Restatement of Judgments, 118, 119 and 128, discussing equitable relief from
judgments; and Am.Jur.2d, Appeal and Error, 972, reciting that a case may be remanded to permit the taking
of further evidence, if the interests of justice require.
____________
87 Nev. 418, 418 (1971) Anderson v. Warden
JOHN H. ANDERSON, Appellant, v. WARDEN,
No. 6409
September 10, 1971 488 P.2d 149
Appeal from order by Eighth Judicial District Court, Clark County, denying motion for
post-conviction relief; William P. Compton, Judge.
Affirmed.
Robert List, Attorney General, Carson City; and Roy A. Woofter, District Attorney, and
Raymond D. Jeffers, Chief Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
Having given full consideration to the briefs and the record on appeal, we find that there is
substantial competent evidence in the record to support the order below and that appellant
has failed to demonstrate reversible error.
87 Nev. 418, 419 (1971) Anderson v. Warden
in the record to support the order below and that appellant has failed to demonstrate
reversible error.
The order denying appellant's petition for post-conviction relief is affirmed.
____________
87 Nev. 419, 419 (1971) Grouse Cr. Ranches v. Budget Financial Corp.
GROUSE CREEK RANCHES, Appellant and Cross-Respondent, v. BUDGET FINANCIAL
CORPORATION and NEVADA TITLE GUARANTY COMPANY, Respondents and
Cross-Appellants.
No. 6225
September 13, 1971 488 P.2d 917
Appeal from order of the Fourth Judicial District Court, Elko County, granting
post-judgment motions to amend the pleadings to conform to the evidence and to alter, amend
and modify the findings of fact, conclusions of law and judgment; John E. Gabrielli, Judge.
Cross-appeal from decision of the Fourth Judicial District Court, Elko County, refusing to
alter and amend judgment; John E. Gabrielli, Judge.
Appeal and cross-appeal from order of the district court granting post-judgment motions,
in garnishment proceeding. The Supreme Court, Zenoff, C. J., held, inter alia, that assuming
defendant's motion to alter, amend and modify findings of fact, conclusions of law and
judgment was insufficient for failing to specify exact manner in which it sought to have
judgment amended, garnishor which failed to object and argued at hearing in such a manner
as to evidence its knowledge of relief sought waived such error.
Affirmed, remanded for the further proceedings consistent with opinion.
Wilson and Wilson, of Elko, and Keith Williams, of Santa Ana, California, for Appellant
and Cross-Respondent.
McCune & Williams, and Virgil D. Dutt, of Reno, for Respondent and Cross-Appellant
Budget Financial Corporation.
Emerson Wilson, of Reno, for Respondent and Cross-Appellant Nevada Title Guaranty
Company.
1. Judgment.
Where plaintiff failed to object to defendant's motion to alter, amend and modify findings of fact,
conclusions of law and judgment, on basis of asserted defect that motion failed to specify with sufficient
particularity grounds upon which relief was sought, and in fact engaged in lengthy
argument at hearing relative to defendant's grounds for motion, asserted defect was
waived.
sufficient particularity grounds upon which relief was sought, and in fact engaged in lengthy argument at
hearing relative to defendant's grounds for motion, asserted defect was waived. NRCP 7(b).
2. Judgment.
Assuming defendant's motion to alter, amend and modify findings of fact, conclusions of law and
judgment was insufficient for failing to specify exact manner in which it sought to have judgment amended,
plaintiff which failed to object and argued at hearing in such a manner as to evidence its knowledge of
relief sought waived such error.
3. Judgment.
Under rules requiring service of motion to amend or modify findings of fact, conclusions of law and
judgment within ten days of service of notice of entry of judgment and requiring that such motion, as well
as notice of hearing of such motion, be served at least five days before hearing, service of notice of hearing
was not required within ten days of service of notice of entry of judgment. NRCP 6(d), 52(b).
4. Judgment.
Where it was clear from record that issue of respective lien rights of garnishor and pledgee was raised
and tried, in that garnishor itself prayed that court establish priority between garnishor and pledgee as to
debtor's property, court was empowered to grant pledgee's primary lien claim notwithstanding pledgee,
claiming absolute title, did not move to amend its pleadings to conform to evidence, so as to assert such a
claim, until three months after judgment in garnishment action. NRS 31.350, NRCP 54(c).
5. Garnishment.
As to rights to debtor's assets in garnishment action garnishor stood in no better position in relation to
pledgee than did debtor.
6. Estoppel.
Where record supported finding that there was no bad faith on pledgee's part in improperly asserting
absolute ownership of debtor's pledged property, pledgee was not estopped to assert its pledge lien claim
after judgment notwithstanding prior election to assert only absolute title.
Where parties as well as court regarded garnishment action as contest between garnishor and pledgee of
debtor's assets and judgment decreeing that creditor have joint and several judgment against garnishee
against any and all garnished property remaining in possession or custody of garnishee was not therefore
separable, fact that garnishee did not join in pledgee's post-judgment motion to alter, amend or modify
judgment and its role as an appellant in cross-appeal to garnishment action was limited did not mean that
judgment against garnishee would be sustained without regard to disposition of appeal relative to pledgee's
third-party claim to debtor's property. NRS 31.240, 31.300, 31.350.
Where it could be inferred from notice of appeal and designation of record that appeal was from
judgment itself and it could not be said that cross-respondent was misled by notice, fact that notice was
defective in stating that appeal was from decision and not from judgment itself did
not necessitate dismissal of appeal.
notice was defective in stating that appeal was from decision and not from judgment itself did not
necessitate dismissal of appeal.
9. Garnishment.
Where creditor's garnishment writ, served in August 1963, commanded garnishee to retain possession and
control of all personal property, effects and choses in action of debtor, existence of December 1962 pledge
agreement, under which garnishee was holder of pledged security of debtor, did not mean that debtor no
longer owned any garnishable interest in pledged property at time of garnishment, and garnishor was
entitled to such property as remained after satisfaction of pledge lien. NRS 31.260.
10. Garnishment.
Where garnishee's answers to garnishment did not deny that it was indebted to debtor or held any
property belonging to debtor but in fact acknowledged it held property of debtor pursuant to agreement
between debtor and pledgee, although it did not know debtor's interest in property, there remained triable
question of debtor's interest in property even in absence of a traverse of garnishee's answers by garnishor,
and garnishor's failure to traverse garnishee's answers did not constitute an admission that garnishee had no
property belonging to debtor. NRS 31.330.
OPINION
Condensed to its simplest form the theme of this litigation finds Budget Financial
Corporation (hereinafter Budget) as a pledgee, the holder of instruments as security for
monies loaned by it to Pacific Westates Land Development Corporation (hereinafter
Westates). Grouse Creek Ranches (hereinafter Grouse Creek), also a creditor of
Westates, seeks collection of its claim against Westates by garnishment of Nevada Title
Guaranty Company (hereinafter Nevada Title) who held the security owned by Budget.
Budget foreclosed and retained all of the value represented by its security but Grouse Creek
claims at least the excess of that security over and above Budget's total claim, unless,
however, we hold as a prior result that Budget may not claim any of it because of certain
procedural deficiencies. Budget and Grouse Creek, as creditors of Westates, want to satisfy
their judgments obtained against Westates, but Budget claims all of the security, refuses to
disclose the amount realized from the security, and asserts in any event at least a prior lien
claim to the security as against anyone else.
Therefore, the lawsuit, which had its inception in 1963, is a dispute between creditors. The
debtor, Westates, was a real estate development enterprise which bought large parcels of
land from Grouse Creek in 1959.
estate development enterprise which bought large parcels of land from Grouse Creek in 1959.
Originally, the time-payment sale agreement was secured by a second deed of trust but
between 1959 and 1963 several parcels were released from this deed of trust and in place of
this security Grouse Creek was assigned certain land sales contracts under which Westates
was seller and third persons were buyers. By and after 1963, however, numerous buyers
defaulted on these contracts, so Grouse Creek was left with contracts of little value, and
therefore, insufficient security for the amount owed. Thus, in 1963, Grouse Creek sued
Westates, inter alia, to recover title to other lands which had been released from the deed of
trust but which were not the subject of land sales contracts assigned to it and for a money
judgment.
Budget entered the picture in 1961 when it began making a series of loans to Westates.
These loans were secured by pledges of groups of land sales contracts other than those
described above. As the financial condition of Westates further deteriorated in 1962, Budget,
Westates and Nevada Title entered into an agreement whereunder all land sales contracts and
trust deeds still held by Westates, whether previously pledged or not, were deposited with
Nevada Title and trust deeds to the realty were conveyed to them and recorded.
Approximately six months after this December 1962 transfer of the remaining land sales
contracts, Grouse Creek garnished Westates' property in the hands of Nevada Title, the
garnishee. In answering the interrogatories annexed to the writ of garnishment, Nevada Title
denied being indebted to Westates, but admitted it held $9,537.54 which it had received as
payments on the land sales contracts pursuant to the above-described December 1962
agreement. It also stated it did not know the extent of the interest of Westates in the contracts.
The $9,537.54 held by Nevada Title was levied upon by the sheriff but apparently nothing
further was done relative to subsequent payments received by Nevada Title.
In October 1963 Budget served Nevada Title with notice of default and election to sell the
property represented by the December 1962 trust deed. The December 1962 agreement
empowered Budget and Nevada Title to conduct a nonjudicial public sale in the event of
certain defaults by Westates. Shortly after it served this notice Budget entered into an
indemnity agreement with Nevada Title whereunder Budget would hold Nevada Title
harmless from the effect of the writ of garnishment. Thereafter, Nevada Title released to
Budget a total of about $529,000 it collected on the land sales contracts.
Grouse Creek moved to interplead Budget in November 1963 as garnishee defendant and
the motion was granted a month later. Subsequently, in February 1964, the default sale was
held. Budget was the purchaser of the deeds. In early June of that year it conveyed this
property to a third party. Shortly thereafter Nevada Title, as trustee, also sold all land sales
contracts and trust deeds in its possession to Budget. Subsequently, later in June, Budget
answered the motion to interplead it as garnishee defendant by denying it held any property
belonging to Westates or that Grouse Creek had any claim to property in its hands. It asserted
absolute title to all property held. Grouse Creek responded to this answer by asserting, inter
alia, that Budget had no special right to the contested property by virtue of either law or the
contracts with Westates.
In March 1966 Grouse Creek obtained a default judgment against Westates on the
principal action in the approximate amount of $283,000. Similarly, in December 1966 Budget
obtained a substantial default judgment against Westates.
The garnishment action was subsequently tried and a decision filed in November 1968.
Judgment was entered January 21, 1969. The court denied Budget's assertion of third-party
rights in the property and ordered that Grouse Creek have a joint and several judgment of
$338,610.05 against Nevada Title and any garnished property, payments thereon or proceeds
thereof remaining in Nevada Title's possession.
On February 3, 1969 Budget moved, inter alia, to alter, amend and modify the findings of
fact, conclusions of law and judgment. A hearing was held in May 1969 and Budget moved to
amend its pleadings to conform to the evidencei.e., that under the facts shown it was
entitled to a lien against the collateral in the form of the land sales contracts. The various
motions were taken under advisement and in December 1969 the court held a second hearing
on the merits. In February 1970 the court ruled, granting Budget's motion to amend the
pleadings. Though it reaffirmed its denial of Budget's claim to absolute title, the court held
that Budget was entitled to a lien upon the property because of its pledge status. The findings
of fact, conclusions of law and judgment were ordered amended accordingly.
From this order Grouse Creek appeals and Budget and Nevada Title cross-appeal. Further
facts will be elicited as pertinent to discussion of the issue addressed.
Basically, what Grouse Creek seeks in the principal appeal is reinstatement of the original
judgment ordered in the lower court which entitled it to recovery of $2S3,716.69 {the
amount of its judgment against Westates) plus interest from Nevada Title.
court which entitled it to recovery of $283,716.69 (the amount of its judgment against
Westates) plus interest from Nevada Title. The basis of this judgment was the court's holding
that Budget was not entitled to receive absolute title to the property held by Nevada Title.
What Budget seeks in its cross-appeal is the relief given in neither the original nor amended
judgment, namely, absolute title to the property held by Nevada Title after 1963 and sold in
1964 pursuant to the December 1962 agreement.
The issues presented in the principal appeal are as follows:
I. Whether the lower court erred in granting Budget's motion to alter, amend and modify
the findings of fact, conclusions of law and judgment because:
A. The motion failed to state with sufficient particularity the grounds upon which it was
based;
B. The motion was merely a generalized attack on the findings and failed to specify the
relief or order sought;
C. The notice of hearing of the motion was not served within ten days after service of
notice of entry of judgment;
D. The issue of Budget's lien was not tried and the motion to amend the pleadings was
untimely; and
E. Budget had elected by its pleadings to assert only absolute title and it was estopped
from later asserting a lesser interest.
II. Whether the judgment of January 21, 1969 against Nevada Title must be sustained
unless Nevada Title prevails on issue III in the cross-appeal, irrespective of the outcome of
the rest of the cross-appeal and appeal.
The issues presented in the cross-appeal are as follows:
I. Whether the cross-appeal of Budget and Nevada Title should be dismissed because the
notice of appeal does not refer to an appealable final judgment or order.
II. Whether Nevada Title, at the time of garnishment, held any property of Westates in
which there was a garnishable interest.
III. Whether Grouse Creek's failure to traverse Nevada Title's answers to the garnishment
requires that it be deemed to admit the answer as true, and therefore Grouse Creek admitted
Nevada Title had no property belonging to Westates.
PRINCIPAL APPEAL
I. Whether the lower court erred in granting Budget's motion to alter, amend and modify
the findings of fact, conclusions of law and judgment because: A.
A. The motion failed to state with sufficient particularity the grounds upon which it was
based;
B. The motion was merely a generalized attack on the findings and failed to specify the
relief or order sought;
C. The notice of hearing of the motion was not served within ten days after service of
notice of entry of judgment;
D. The issue of Budget's lien was not tried and the motion to amend the pleadings was
untimely; and
E. Budget had elected by its pleadings to assert only absolute title and it was estopped
from later asserting a lesser interest.
[Headnote 1]
I. A. Grouse Creek argues that the February 3, 1969 motion to alter, amend and modify the
findings of fact, conclusions of law and judgment failed to specify with sufficient
particularity the grounds upon which relief was sought. Grouse Creek urges that the
post-judgment proceedings were defective from the outset because of this asserted failure to
meet the requirements of NRCP 7(b). United Pac. Ins. Co. v. St. Denis, 81 Nev. 103, 399
P.2d 135 (1965). Yet, Grouse Creek failed to object to the motion on the basis of this asserted
defect and, indeed, engaged in lengthy argument at the May 9, 1969 hearing relative to
Budget's grounds for the motion. Thus, it waived the objection. King v. Mordowanec, 46
F.R.D. 474, 477 (D.R.I. 1969); cf. Schy v. Susquehanna Corporation, 419 F.2d 1112 (7th Cir.
1970).
[Headnote 2]
I. B. The record itself refutes Grouse Creek's assertion that the motion failed to do more
than generally attack the findings. Unlike the movants in Heikkila v. Barber, 164 F. Supp. 587
(D. Cal. 1958) (cited by Grouse Creek), Budget sought more than the mere amendment of the
findings of fact; it also asked for amendment of the conclusions of law.
Though it did not specify the exact manner in which it sought to have the judgment
amended, the motion did indicate such an objective. Moreover, even assuming that to be an
insufficient prayer, Grouse Creek waived such error by failing to object and by arguing at the
May 9, 1969 hearing in such a way as to evidence their knowledge of the relief sought.
Indeed, counsel for Grouse Creek, in argument before the lower court on May 9, 1969
recognized that Budget was asking the court to modify its decision herein and accordingly
modify its judgment.
[Headnote 3]
I. C. The motion to alter, amend or modify the January 21, 1969 findings of fact,
conclusions of law and judgment was filed February 3, 1969 within the NRCP 52(b) time
period. On March 20, 1969 the court ordered a hearing on this motion for May 9, 1969.
Grouse Creek now seeks construction of NRCP 6(d)
1
and NRCP 52(b)
2
so as to require
service of notice of hearing within ten days of service of notice of entry of judgment. Under
such a construction, it is argued, the order for hearing was too late, so the hearing was
improper.
The suggested construction is patently unreasonable. NRCP 52(b) refers only to service of
the motion to amend and requires service within ten days of service of notice of entry of
judgment. NRCP 6(d) simply adds the requirement that such a motion, as well as the notice
of hearing of such motion, be served at least five days before the hearing. There is not such an
overlapping as would require service of both the motion and notice of hearing thereof within
ten days of service of notice of entry of judgment. Cf. Howard v. Howard, 356 P.2d 275
(Utah 1969).
[Headnote 4]
I. D. In answering to the NRS 31.350 motion and order to interplead it as a defendant in
the garnishment action, Budget claimed total and absolute right to any and all money and
property coming into the possession of Nevada Title. Neither at that stage nor in its
post-judgment motion to alter, amend and modify did it assert the primary pledge lien interest
which it was ultimately awarded below.
____________________

1
NRCP 6(d) For MotionsAffidavits. A written motion, other than one which may be heard ex parte, and
notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless
a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on
ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and,
except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the
hearing, unless the court permits them to be served at some other time.

2
NRCP 52(b) Amendment. Upon motion of a party made not later than 10 days after service of written notice
of entry of judgment the court may amend its findings or make additional findings and may amend the judgment
accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact
are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support
the findings may thereafter be raised whether or not the party raising the question has made in the district court
an objection to such findings or has made a motion to amend them or a motion for judgment.
it was ultimately awarded below. Only three months after the January 21, 1969 judgment did
it move to amend its pleadings to conform to the evidence, so as to assert such a claim.
Grouse Creek asserts this amendment was too late and should have been denied, and hence,
the primary lien claim should not have been granted.
We cannot agree that the asserted untimeliness of the motion to amend the pleadings to
conform to the evidence makes improper the granting of a primary lien. Without passing on
the timeliness of this motion, we need only point out that the record is abundantly clear in
revealing that the issue of the respective lien rights of Grouse Creek and Budget was raised
and tried. Grouse Creek itself prayed that the court establish the priority between plaintiff
[itself] and garnishee-defendant [Budget] as to the garnished property. . . .
Because this issue was raised and tried, the court was empowered by NRCP 54(c) to grant
the relief granted, if such relief was legally warranted. Longley v. Heers Bros., Inc., 86 Nev.
599, 472 P.2d 350 (1970); Checker, Inc. v. Zeman, 86 Nev. 216, 467 P.2d 100 (1970).
[Headnotes 5, 6]
I. E. Grouse Creek argues that this relief was not legally warranted, however, because
Budget elected to assert only absolute title, thereby becoming estopped from later asserting a
lesser interest. Numerous cases hold, however, that though a pledgee improperly asserts
absolute title to the pledged property, even going so far as selling the property improperly, it
does not lose the favored position afforded by its pledge lien. Hubbard v. Tod, 171 U.S. 474
(1898); First Nat'l. Bank v. Rush, 85 Fed. 539 (8th Cir. 1898); Faivret v. First National Bank
in Richmond, 62 F.Supp. 1012 (N.D. Cal. 1945); Cushing v. Building Ass'n., Soc., New or
Prac. Psychology, 134 P. 324 (Cal. 1913); Brittan v. Oakland Bank of Savings, 57 P. 84 (Cal.
1899).
As a creditor contesting with a pledgee (Budget) the rights to Westates' assets, Grouse
Creek stood in no better position as to the pledgee (Budget) than did Westates. In re Bennett's
Estate, 90 P.2d 84 (Cal. 1939); Briley v. Madrid Improvement Company, 122 N.W.2d 824
(Ia. 1963).
Grouse Creek asserts there was bad faith on Budget's part in improperly asserting absolute
ownership of the pledged property, but the lower court found no such bad faith. Because that
finding is supported in the record we, too, are disinclined to estop Budget from asserting its
lien claim, though we agree Budget was incorrect in asserting a right to such absolute
ownership. Cf. Wilkins v. Redding, 97 N.W. 23S {Neb.
Budget was incorrect in asserting a right to such absolute ownership. Cf. Wilkins v. Redding,
97 N.W. 238 (Neb. 1903).
In sum, we find unpersuasive Grouse Creek's objections to the motion to alter, amend or
modify the findings of fact, conclusions of law and judgment. Moreover, we find that the
issue of Budget's pledge lien was properly presented and the lower court did not err in
upholding Budget's lien as primary to Grouse Creek's interest.
[Headnote 7]
The January 21, 1969 judgment decreed that Grouse Creek have joint and several
judgment for the sum of $338,610.05 against the garnishee Nevada Title Guaranty Company
generally and individually, and against any and all of the garnished property . . . remaining in
the possession or custody of said Nevada Title Guaranty Company. . . . The post-judgment
motion to alter, amend or modify was made only by Budget. Nevada Title made no motion
relative to the judgment until June 23, 1969 when it made an NRCP 60(b)(4) motion to
correct the judgment. This motion was denied on February 10, 1970 when the lower court
rendered its decision ordering the January 21, 1969 judgment amended. The court did state,
however, that [T]he judgment herein against Nevada Title should be limited to the value of
the property held by Nevada Title as that value may ultimately be determined under the
holding of this decision and subject to Budget's superior lien position as hereinafter
determined. (Emphasis added.)
Grouse Creek now argues that since Nevada Title did not join in the post-judgment motion
to alter, amend or modify and since its role as an appellant in the cross-appeal is limited to
challenging the ruling below on one specific basis (see discussion of issue III in cross-appeal,
infra), if it fails in that challenge the several judgment against it must be sustained regardless
of the disposition of the appeal relative to Budget's third-party claim to the property.
We cannot agree. We find inapposite the numerous cases cited by Grouse Creek for the
proposition that a separable judgment not attacked by one judgment debtor remains even if
successfully attached by other of the judgment debtors. More than a superficial analysis
reveals that the judgment, viewed in light of the law and the facts of the case, was not
separable. Cf. Ormachea v. Ormachea, 67 Nev. 273, 291, 217 P.2d 355 (1950). Throughout
the trial the parties as well as the court regarded this action as a contest between Grouse
Creek and Budget.
regarded this action as a contest between Grouse Creek and Budget. This view is seen
articulated in the above-quoted portion of the February 1970 decision.
Indeed, under the applicable statutes, such treatment seems proper. NRS 31.240 speaks of
attaching property and NRS 31.300 allows judgment against the garnishee (Nevada Title)
only if it is shown the garnishee has property belonging to the defendant (Westates). By the
entry of Budget as a third-party claimant under NRS 31.350 a question mark was thrown over
the requisite determination (right to the property) for a judgment under the foregoing statutes.
Though it is true NRS 31.300 allows judgment against the garnishee, such judgment is proper
where a third-party claimant is interpleaded only after that third-party claimant's rights are
adjudicated. Until that time, the garnisher, in a situation such as this, is only a stakeholder.
Only as Grouse Creek's rights to the property as against Budget are determined may there be a
judgment against Nevada Title.
We find uncompelling the assertions of error urged in the principal appeal.
CROSS-APPEAL
[Headnote 8]
I. Whether the cross-appeal of Budget and Nevada Title should be dismissed because the
notice of appeal does not refer to an appealable final judgment or order.
The notice of appeal in the cross-appeal states Budget and Nevada Title do hereby appeal
. . . from the decision . . . in which the court refused to alter and amend its judgment. . . . As
such, it is noticeably defective in that the appeal is from a decision of a final order or
judgment, not from the judgment itself. Casino Operations v. Graham, 86 Nev. 764, 476 P.2d
953 (1970).
As in Casino Operations, however, we conclude it may be inferred from the notice of
appeal and designation of the record that the appeal is from the judgment itself and it may not
be said Grouse Creek was misled by the notice. See also Foman v. Davis, 371 U.S. 178
(1962), and Jones v. Chaney & James Construction Co., 399 F.2d 84 (5th Cir. 1968).
[Headnote 9]
In their December 1962 agreement, Budget, Nevada Title and Westates agreed that in the
event of certain failures by Westates, Budget might declare a default and cause Nevada
Title to sell at a private foreclosure sale Westates' interest in the pledged property.
Westates, Budget might declare a default and cause Nevada Title to sell at a private
foreclosure sale Westates' interest in the pledged property. In October 1963 Budget served
such a notice of default and in February 1964 Budget purchased the pledged property at a
private foreclosure sale.
Budget devotes much of its briefs to the argument that Westates' actions constituted
defaults under the contracts, thereby allowing Budget to foreclose and take sole and absolute
title to the pledged property. Because we hold Grouse Creek's rights were established from
the time of garnishment in August 1963 we do not reach questions of interpretation of the
contracts. We cannot agree with Budget's contention that because of the December 1962
pledge agreement Westates no longer owned any garnishable interest in the pledged property.
The garnishment writ, in the form of NRS 31.260 commanded Nevada Title to retain
possession and control of all personal property, effects and choses in action of Pacific
Westates. . . . It is well-established that even though property may be subject to a pledge
agreement it may be reached by timely garnishment. Weir v. Galbraith, 376 P.2d 396 (Ariz.
1962); Axe v. Commercial Credit Corporation, 38 Cal.Rptr. 558 (Cal.App. 1964); Raffo v.
Foltz, 288 P. 884 (Cal.App. 1930); Deering v. Richardson-Kimball Co., 41 P. 801 (Cal.
1895); Petition of Upper Peninsula Development Bureau, 110 N.W.2d 709 (Mich. 1961);
Kiel Wooden Ware Co. v. Raeder, 7 N.W.2d 414 (Wis. 1943); Annot. 83 A.L.R. 1383
(1933). To rule otherwise in a case such as this would be to allow a creditor to circumvent a
lawful garnishment action and possibly recover more than is due, to the detriment of a
garnishing creditor.
[Headnote 10]
III. Whether Grouse Creek's failure to traverse Nevada Title's answers to the garnishment
requires that it be deemed to admit the answer as true, and therefore Grouse Creek admitted
Nevada Title had no property belonging to Westates.
NRS 31.330 requires that the plaintiff-garnishor traverse the answer of the garnishee or be
deemed to accept that answer as true. Grouse Creek did not traverse Nevada Title's answer,
and for that reason, it is asserted, no issue was joined. Had Nevada Title's answer been merely
a denial that it was indebted to Westates or held any property belonging to it, this assertion
might be meritorious, but that is not the case here. In its answer Nevada Title acknowledged
holding property pursuant to the December 1962 agreement with Budget and Westates, but
stated it did not know Westates' interest in the property.
Thus, even in the absence of a traverse by Grouse Creek there remained the triable question
of Westates' interest in the property. Grouse Creek took the further necessary steps to
ascertain that interest by interpleading Budget under NRS 31.350.
The judgment of the lower court properly determined that as of the date of the garnishment
Westates continued to have a garnishable interest in the pledged property. As the garnishor,
Grouse Creek became entitled to such part of that property as remained after satisfaction of
Budget's prior pledge lien, in satisfaction of its garnishment claim. The accounting which the
lower court declined to order pending this appeal should proceed.
The order of the trial court allowing amendments to the findings, conclusions and
judgment on the motion of Budget is affirmed; the cross-appeal of Budget requires affirmance
and remand to ascertain the amount due and owing from Westates to Budget directly or
through Nevada Title, the circumstances and details of the sale including the amount realized
therefrom, disposition of the proceeds and security after sale, and such other and further
proceedings as deemed warranted by the trial court.
Affirmed, remanded for the further proceedings consistent with opinion.
____________
87 Nev. 431, 431 (1971) Perry v. Byrd
PETE PERRY, Appellant, v. IRIS O. BYRD,
Respondent.
No. 6294
September 13, 1971 488 P.2d 550
Appeal from judgment of the First Judicial District Court, Lyon County; Frank B. Gregory,
Judge.
Replevin action to recover possession of house trailer from purchaser who possessed the
trailer and claimed ownership by reason of bill of sale from plaintiff's former husband. The
district court denied defendant's motions for summary judgment and new trial and entered
judgment for plaintiff. Defendant appealed. The Supreme Court, Batjer, J., held that where
wife, during course of marriage, executed document in which she disclaimed any ownership
interest in trailer house owned by husband, subsequently purchased trailer from him and
obtained bank loan to pay purchase price, relinquished possession of the trailer to
husband at time of divorce upon oral agreement that he pay amount owing on bank loan,
but later completed payment on the loan, after he failed to make agreed payments and
disappeared, and received certificate of ownership, and where purchaser from former
husband was made aware of wife's interest in the trailer house, purchaser did not
purchase in good faith for value, and his physical possession supported by his bill of sale
from former husband could not defeat wife's untainted certificate of ownership.
87 Nev. 431, 432 (1971) Perry v. Byrd
by husband, subsequently purchased trailer from him and obtained bank loan to pay purchase
price, relinquished possession of the trailer to husband at time of divorce upon oral agreement
that he pay amount owing on bank loan, but later completed payment on the loan, after he
failed to make agreed payments and disappeared, and received certificate of ownership, and
where purchaser from former husband was made aware of wife's interest in the trailer house,
purchaser did not purchase in good faith for value, and his physical possession supported by
his bill of sale from former husband could not defeat wife's untainted certificate of ownership.
Affirmed.
Samuel B. Frankovich, of Reno, for Appellant.
Jack Christensen, of Yerington, for Respondent.
1. Judgment.
Summary judgment is not shortcut to resolution of facts material to determination of legal rights of
parties involved.
2. Judgment.
In replevin action to recover possession of trailer house from purchaser claiming ownership by reason of
bill of sale from plaintiff's former husband, question of fact existed as to whether plaintiff acquired title to
the trailer after execution of document in which she disclaimed any ownership interest in such trailer house,
precluding summary judgment.
Where evidence was conflicting and sufficient to support judgment, order denying new trial would not be
reversed on appeal.
4. Sales.
Evidence, in replevin action to recover possession of house trailer from purchaser who had possession of
it and claimed ownership by reason of bill of sale from plaintiff's former husband, was sufficient to support
judgment for plaintiff.
5. Sales.
Where wife, during course of marriage, executed document in which she disclaimed any ownership
interest in trailer house owned by husband, subsequently purchased trailer from him and obtained bank
loan to pay purchase price, relinquished possession of the trailer to husband at time of divorce upon oral
agreement that he pay amount owing on bank loan, but later completed payment on the loan, when he failed
to make agreed payments and disappeared, and received certificate of ownership, and where purchaser
from former husband was made aware of wife's interest in the trailer house, purchaser did not purchase in
good faith for value, and his physical possession supported by bill of sale from former husband could not
defeat wife's untainted certificate of ownership. NRS 52.070, subds. 10, 11, 104.2403, subds. 2, 3,
482.240, subd. 3, 482.400.
87 Nev. 431, 433 (1971) Perry v. Byrd
6. Automobiles.
Purpose of licensing and registration provisions of motor vehicle code is to provide speedy and simple
way to determine ownership and to prevent fraud and theft. NRS 482.240, subd. 3, 482.400.
7. Estoppel.
Where wife, in apparent attempt to keep respective property separate, executed document in which she
disclaimed any ownership interest in trailer house owned by her husband but subsequently purchased such
trailer from him and obtained bank loan to pay purchase price, wife's disclaimer was abrogated by
subsequent purchase.
OPINION
This is a replevin action to recover the possession of a used 1954 Airstream trailer. It was
commenced by the respondent, who alleged to be the lawful owner, against the appellant,
who possessed the trailer and claimed ownership by reason of a bill of sale from H. G.
Slingsby, the former husband of the respondent.
Testimony and other evidence introduced at trial revealed the following facts: The
respondent and Slingsby were married in November of 1964. During the course of the
marriage, in an apparent attempt to keep their respective properties separate, the respondent
executed a document in which she disclaimed any ownership interest in a 1954 Airstream
trailer house owned by Slingsby. However, on April 4, 1966, she purchased the trailer from
Slingsby, and obtained a loan at the Bank of America, Salton Sea, California branch, to pay
the purchase price.
In December of 1966, the respondent and Slingsby were divorced and she relinquished
possession of the trailer to him upon an oral agreement that he would pay the amount owing
on the bank loan and reimburse her for payments she had made on the trailer. Slingsby failed
to make any of the payments as agreed and disappeared. The respondent completed the
payments on the loan. In May of 1968, the bank delivered to her the certificate of ownership.
She registered the trailer in the State of California and at the time of trial she possessed the
certificate of ownership. After the disappearance of Slingsby, the respondent began searching
for him and the trailer. Although she was unable to locate Slingsby, she did determine that the
trailer was registered in the State of Nevada to the appellant.
87 Nev. 431, 434 (1971) Perry v. Byrd
During the pendency of the litigation in this case, the appellant moved for summary
judgment. That motion was denied. Following an adverse judgment, after a trial upon the
merits, the appellant filed a motion for a new trial. That request was also denied. It is from the
denial of those two motions, as well as from the judgment, that this appeal is taken. At the
hearing on the motion for summary judgment the appellant relied primarily upon the
disclaimer document, while the respondent presented her current certificate of ownership to
the trailer.
[Headnotes 1, 2]
Upon the authority of Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964) and Smith v.
Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964), wherein this court directed the trial court to
enter summary judgment, the appellant urges that he be similarly treated. The facts of this
case do not even remotely bring it within the rule of Dzack or Smith. It is well established that
summary judgment is not a shortcut to the resolution of facts material to the determination of
the legal rights of the parties involved. Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979
(1963); Brewer v. Annett, 86 Nev. 700, 475 P.2d 607 (1970); Old West Enterprises v. Reno
Escrow Co., 86 Nev. 727, 476 P.2d 1 (1970). Here the documents admitted into evidence at
the hearing on the motion for summary judgment raised the question whether the respondent
acquired title to the trailer after execution of the disclaimer. That was a factual question
which remained unresolved. The trial court properly denied the motion for summary
judgment.
[Headnote 3]
The appellant also asserts that the trial court improperly denied his motion for a new trial.
The testimony and evidence presented at the trial upon the merits was clearly conflicting. The
appellant contended that the respondent had disclaimed any interest in the trailer, while the
respondent testified that she had, subsequent to the execution of the disclaimer, purchased the
trailer from Slingsby. An order denying a new trial will not be reversed on appeal where there
is a material conflict in the evidence and there is some substantial evidence to support the
determination. Nevada R. & S. Co. v. Grich, 59 Nev. 345, 93 P.2d 513 (1939). Here the
evidence is conflicting and sufficient to support the judgment and warrant denial of the
motion for a new trial.
[Headnote 4]
Appellant's final contention is that the judgment of the lower court is not supported by
the weight of the evidence and is contrary to law.
87 Nev. 431, 435 (1971) Perry v. Byrd
court is not supported by the weight of the evidence and is contrary to law. No argument or
authority is presented in support of this issue. Because of that oversight, we could refuse to
consider this contention. Riverside Casino v. J. W. Brewer Co., 80 Nev. 153, 390 P.2d 232
(1964). However, we have reviewed the record and find the judgment amply supported by
sufficient evidence.
[Headnote 5]
Is the judgment contrary to law? Here we are not confronted with the problem found in
Godfrey v. Gilsdorf, 86 Nev. 714, 476 P.2d 3 (1970), where it was necessary to choose
between our motor vehicle licensing and registration law and the entrustment provisions of
the Uniform Commercial Code. Slingsby was not a merchant dealing in cars within the
meaning of NRS 104.2403(2)(3). He was not given the power to transfer all the rights of the
entruster, Iris O. Byrd, to a buyer in the ordinary course of business. Furthermore, there was
believable testimony, before the trial court, that the appellant was made aware of the
respondent's interest. The trial court was entitled to regard the appellant as one who had not
purchased in good faith for value and one who had notice of the respondent's interest.
[Headnote 6]
We are not concerned with the propriety of applying an estoppel against the respondent to
achieve the purpose of 104.2403(2)(3), but are only concerned with the effect of the licensing
and registration provisions of the motor vehicle code upon the judgment in this case. At the
beginning of the trial the appellant was favored by two disputable presumptions, NRS
52.070(10) and NRS 52.070(11).
1
However, the record does not indicate that he relied upon
them to establish his claim of ownership, but if we could so infer, those presumptions are
overcome by the statutory provisions of the motor vehicle licensing and registration laws.
NRS 482.240(3) provides in part: . . . [A] certificate of ownership shall be valid until
canceled by the department upon the transfer of interest therein. NRS 482.400 requires the
legal owner and the transferee to write their signatures with pen and ink upon the certificate
of ownership issued for such vehicle, together with the residence address of the transferee
in the appropriate places provided upon the reverse side of the certificate."
____________________

1
NRS 52.070(10): That things which a person possesses are owned by him.
NRS 52.070(11): That a person is the owner of property from exercising acts of ownership over it, or from
common reputation of his ownership.
87 Nev. 431, 436 (1971) Perry v. Byrd
the residence address of the transferee in the appropriate places provided upon the reverse
side of the certificate. Thereafter, one of them must deliver the certificate of title to the
department of motor vehicles. The purpose of the statute is to provide a speedy and simple
way to determine ownership and to prevent fraud and theft. In Godfrey v. Gilsdorf, supra, at
716, we said: The licensing and registration provisions of the vehicle code are essentially
police regulations and strict compliance with them appears to be the prevailing view. State v.
Glenn, 423 S.W.2d 770 (Mo. 1968). The underlying policy and purpose of that regulatory
scheme are best promoted by such a view.
[Headnote 7]
The evidence supports the conclusion that the respondent's disclaimer was abrogated by
her subsequent purchase of the trailer from Slingsby and that the appellant's physical
possession supported by his bill of sale from Slingsby could not go to defeat her untainted
certificate of ownership.
The orders and judgment of the district court are each affirmed.
Zenoff, C. J., Mowbray and Gunderson, JJ., and Compton, D. J., concur.
____________
87 Nev. 436, 436 (1971) Collins v. State
VARNER RAY COLLINS, Appellant, v. THE STATE
No. 6457
September 14, 1971 488 P.2d 544
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court, Mowbray, J., held that evidence that individual, later identified in court as defendant,
wearing green slacks and shirt, sunglasses and purple shoes had entered cocktail lounge and
then left, and that individual who eyewitnesses testified was wearing green outfit and purple
shoes returned in 15 or 20 minutes and committed holdup was sufficient to support guilty
verdict as to defendant, who was still wearing purple shoes at time of his arrest later in
evening on date of robbery.
Affirmed.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
1. Criminal Law.
Statements of district attorney that, from evidence presented, he felt that defendant committed a robbery
were permissible and unobjectionable.
2. Criminal Law.
State's witness who had completed a home study course in fingerprint identification, had minimum of 24
months of in-service tutelage under supervisory personnel of sheriff's office and made over 1,000
fingerprint comparisons had sufficient experience to testify as an expert regarding his finding and opinion
regarding fingerprints on phone in robbed cocktail lounge.
3. Criminal Law.
Fact that State's expert fingerprint witness testified regarding length of time latent fingerprints remain on
different objects and manner in which they may be destroyed by overlapping of other fingerprints did not
amount to expression of opinion regarding period defendant's prints had been on wallphone in robbed
cocktail lounge, so as to be inadmissible absent a control test.
OPINION
The appellant, Varner Ray Collins, was convicted by a jury of the crime of robbery, and he
was sentenced by the district judge to serve 7 years in the State Penitentiary. Collins has
appealed from his judgment of conviction, asserting several assignments of error, all of which
we reject as meritless, and we affirm the verdict of the jury.
1. The Facts.
The robbery took place at the Nut Hut Cocktail Lounge in Las Vegas. The Nut Hut is
owned and operated by Frank Imperato, who was in the bar on the afternoon the robbery
occurred. Imperato, who made an in-court identification of Collins, testified that Collins had
entered the Nut Hut earlier in the afternoon wearing green slacks and shirt, fancy
sunglasses, and purple shoes. He ordered a beer and a sandwich, left the Nut Hut, and
returned in about 15 minutes. Upon his reentry, Collins brandished a pistol and shouted,
Everybody on the floor! All present responded as requested, except Imperato, who
kneeled behind the bar and witnessed Collins perpetrate the crime.
Imperato, who kneeled behind the bar and witnessed Collins perpetrate the crime.
A patron, Theodore L. Hubert, testified at the trial that a man wearing loud green slacks
and purple shoes had visited the bar, returned in about 20 minutes, flashed a pistol, and
ordered everyone to the floor. Hubert fell to the floor and observed the robber's purple shoes.
He could not, however, identify Collins at the trial.
Alfred Heim, the bartender on duty, who was the victim of the robbery, could not
positively identify Collins at the trial, although he did testify that the robber wore a green
shirt and trousers and sunglasses. He also testified that the same person, when he first visited
the premises, had made a phone call from the public phone located in the bar.
Another patron, Neil Patrick Gray, testifying that Collins sat next to him at the bar,
described his green outfit and purple shoes. Gray made an in-court identification of Collins.
A deputy sheriff lifted a fingerprint from the handpiece of a wall telephone located in the
bar. Another deputy, William J. Dunn, identified the print as being that of one of Collins's
fingers.
Finally, another deputy sheriff testified that he and his partner arrested Collins later in the
evening on the date of the robbery. Collins, at the time of his arrest, was wearing a red shirt
and slacks, but he still had on the purple shoes.
Collins took the stand and denied even being in the Nut Hut. He mentioned two alibi
witnesses, but failed to produce them as witnesses.
2. The Sufficiency of the Evidence.
Collins claims that there was insufficient evidence adduced at the trial to support the guilty
verdict. The contention is meritless. Where there is substantial evidence in the record to
support the verdict of the jury, the verdict shall not be overturned on appeal. Pinana v. State,
76 Nev. 274, 352 P.2d 824 (1960); Tellis v. State, 85 Nev. 679, 462 P.2d 526 (1969);
McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970). The evidence supporting the guilty
verdict is most substantial in this case.
3. The Closing Argument of the Prosecutor.
[Headnote 1]
Collins complains that prejudicial error was committed by the deputy district attorney in
his closing argument to the jury, when the deputy made the following remarks:
I feel there is no question from the evidence presented that the crime of robbery was
committed on this day at The Nut Hut Bar.
the crime of robbery was committed on this day at The Nut Hut Bar.
. . .
So, as far as the proof of the crime of robbery, I think there is absolutely no question that
it did occur on the date as alleged and the property was taken from Mr. Heim belonging to
Mr. Imperato.
. . .
Ladies and Gentlemen, I feel that the State feels that it is clear from the evidence
presented before you that the State has more than proved its case beyond a reasonable doubt
as defined in the law that the defendant did, in fact, commit this particular crime.
. . .
I submit, Ladies and Gentlemen, that the evidence is unquestionably clear and beyond
not any reasonable doubt but all reasonable doubt that the robbery was committed, that this
defendant did in fact on this day unquestionably go into the bar at gunpoint and rob the place
of $992.00, . . . (Emphasis added.)
Collins argues that the references to his guilt were unfair comment and entitle him to a
new trial. Not so.
. . . [S]tatements by the prosecutor, in argument, indicative of his opinion, belief, or
knowledge as to the guilt of the accused, when made as a deduction or conclusion from the
evidence introduced in the trial, are permissible and unobjectionable. (Footnote omitted.) 5
Wharton Cr. Law & Proc. 2084 (1957) at 246. See also Dotson v. State, 80 Nev. 42, 389
P.2d 77 (1964), and Ellison v. State, 87 Nev. 4, 479 P.2d 461 (1971). The record in this case
substantiates the conclusions of the prosecutor.
4. The Testimony of the Fingerprint Expert.
A. Qualifications of the Fingerprint expert.
[Headnote 2]
Collins argues that William J. Dunn, who made the fingerprint comparison, should not
have been permitted to testify regarding his findings and opinion because he was not a
qualified fingerprint expert. Dunn had been employed by the Clark County Sheriff's office
since 1964. He commenced studying fingerprints in 1965. In 1966, Dunn completed a home
study course in fingerprint identification sponsored by the Institute of Applied Sciences. He
had a minimum of 24 months of in-service tutelage under the supervisory personnel of the
Sheriff's office assigned to the identification bureau of that office.
office. He had made over 1,000 fingerprint comparisons. He had, as the district judge ruled,
sufficient experience to testify as an expert in this field. As the court said in Hardison v.
State, 84 Nev. 125, 128, 437 P.2d 868, 870 (1968):
. . . The question whether a particular witness is qualified as an expert and should be
permitted to give opinion evidence is to be determined by the trial court in its discretion. The
weight of his testimony is, of course, a question for the jury. . . .
The district judge ruled properly in permitting Dunn to testify, and he correctly instructed
the jury regarding the jury's role in weighing the testimony of such an expert.
B. Testimony regarding Collins's fingerprints on the phone.
[Headnote 3]
Collins also asserts that reversible error was committed in that Dunn was permitted to
testify regarding the length of time Collins's print had been on the phone receiver. Relying
heavily on Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965), Collins urges that such
testimony is not admissible absent a control test as described in Beasley. This is true.
However, Dunn never expressed an opinion as to the length of time the print had been on the
phone. He did testify regarding the length of time latent fingerprints remain on different
objects and the manner in which they may be destroyed by the overlapping of other
fingerprints. He did not, however, express an opinion regarding the period Collins's prints had
been on the bar phone, which would have necessitated the Beasley control test.
1

Since all assignments of error are without merit, the appeal is denied, and the judgment of
conviction is affirmed.
____________________

1
The testimony to which Collins now objects was elicited by his then counsel of record at the trial.
____________
87 Nev. 441, 441 (1971) Britz v. Consolidated Casinos Corp.
ALFRED H. BRITZ and LOUIS MARDER, Appellants, v. CONSOLIDATED CASINOS
CORP., a Nevada Corporation, Respondent.
No. 6349
September 15, 1971 488 P.2d 911
Appeal from an order denying a motion to set aside a default judgment, Eighth Judicial
Action to collect a debt as well as for compensatory and punitive damages, charging a
conspiracy by defendants to defraud plaintiff. The district court entered judgment from which
defendants appealed. The Supreme Court, Batjer, J., held that a case submitted for judgment
under rule relating to entry of default judgment by the court is not tried upon the facts
within meaning of rule providing that in all actions tried upon the facts without a jury, the
court shall find facts specially and state separately its conclusions of law thereon.
Affirmed.
Calvin C. Magleby, of Las Vegas, for Appellants.
Lionel Sawyer Collins and Wartman, and Steve Morris, of Las Vegas, for Respondent.
When there is a substantial conflict in evidence and sufficient evidence to support a finding for either
party, decision of trial court must be sustained on appeal.
2. Judgment.
Although defendant claimed that he had a conversation with plaintiff's attorney and at that time he
advised the attorney that an arrangement was made for settlement and that he was advised by plaintiff's
attorney that he need not answer complaint or be concerned about being present for taking of his deposition
and that in event any problems arose the attorney would notify him before any action was taken, in view of
fact that such evidence was directly controverted by testimony of plaintiff's attorney, trial court was
justified in deciding that defendants had failed to make a showing of mistake, inadvertence, surprise or
excusable neglect and were not entitled to have default judgment set aside. NRCP 60(b)(1).
3. Judgment.
Admission of proposed stipulation, which had been signed by plaintiff's attorney and mailed to an
attorney who had been in communication with defendants regarding litigation, and which merely expressed
terms upon which plaintiff's attorney would be willing to extend time for taking deposition of one of
defendants and for defendants to file an answer, was not error in proceeding to set
aside a default judgment.
and for defendants to file an answer, was not error in proceeding to set aside a default judgment.
4. Judgment.
Trial judge is free to judiciously and reasonably exercise discretion in determining whether a default
judgment should be set aside. NRCP 60(b)(1).
A point not urged in trial court, unless it goes to jurisdiction of that court, is deemed to have been waived
and will not be considered on appeal.
Claims that complaint was defective on its face because alleged fraud was not stated with sufficient
particularity, that trial court failed to make separate findings of fact and conclusions of law, and that
evidence was incompetent and immaterial and did not support judgment did not go to jurisdiction of trial
court, and thus these claims, which were not urged in motion to set aside default judgment and were not
presented to trial court, would be deemed waived and would not be considered on appeal. NRCP 9(b),
52(a).
Defendants' failure to timely raise issue whether complaint was defective on its face because alleged
fraud was not stated with sufficient particularity as required by rule waived the requirement. NRCP 9(b).
8. Pleading.
Failure of a plaintiff to comply with rule providing that in all averments of fraud or mistake the
circumstances constituting fraud or mistake shall be stated with particularity does not ipso facto divest a
trial court of jurisdiction, but only subjects the complaint to a motion for a more definite statement, or at
the very worst to dismissal with leave to amend. NRCP 9(b).
9. Trial.
Requirements that trial court make separate findings of fact and conclusions of law apply only to those
actions tried upon the facts. NRCP 52(a).
10. Trial.
A case submitted for judgment under rule relating to entry of default judgment by the court is not tried
upon the facts within meaning of rule providing that in all actions tried upon the facts without a jury, the
court shall find facts specially and state separately its conclusions of law thereon. NRCP 52(a), 55(b)(2).
11. Trial.
Where at time judgment was entered facts were not in issue, no finding of fact and conclusion of law was
required. NRCP 52(a), 55(b)(2).
OPINION
Action was commenced in the district court by the respondent to collect a debt of
$100,000, as well as for compensatory and punitive damages against the appellants in the
amount of $350,000, charging a conspiracy by the appellants to defraud the respondent.
and punitive damages against the appellants in the amount of $350,000, charging a conspiracy
by the appellants to defraud the respondent.
On December 23, 1969, the trial court found a conspiracy on the part of the appellants and
entered a default judgment awarding the respondent compensatory damages in the sum of
$100,000, and punitive damages in the amount of $30,000.
On January 7, 1970, seeking relief within NRCP 60(b), the appellants filed a motion
asking the trial court to set aside the default judgment on grounds of mistake, inadvertence,
surprise or excusable neglect. Along with this motion they filed a proposed answer and an
affidavit by the appellant, Alfred H. Britz. A hearing was held and the motion was denied.
From that denial this appeal is taken.
The litigation arose after two checks, each in the amount of $50,000, signed by the
appellants as officers of Westward Investment Corporation, were cashed at the respondent's
Sahara Hotel in Las Vegas, Nevada. Payment was stopped on one check and the other was
returned to the respondent because of insufficient funds.
The check dated June 27, 1969, was made payable to James Morse. Testimony at the
hearing on the motion indicated that Morse was to retain the check until such time as he had
purchased stock in Delta Corporation, that stock had been resold, and sufficient funds had
been placed in the Westward Investment Corporation account to cover the check. Instead of
holding the check, Morse took it to the Sahara Hotel and cashed it at the cashier's window.
The appellant Britz claimed that the Delta stock purchased by Mr. Morse was not transferable
and payment on the check was stopped.
The other check, dated July 29, 1969, was made payable to cash. The legend on the check
read Shield Industries. Upon the request of appellants, the check was taken to the Sahara
Hotel and cashed by a Mr. Topel, who was deceased at the time of the hearing on the motion.
The appellants had made prior arrangements with the casino cashier to cash checks in large
amounts. The funds from this check were taken to California and invested in stock of Shield
Industries. At the time this second check was cashed there were insufficient funds in the
Westward Investment Corporation account to cover it. No effort to redeem these checks was
ever made. As a result of this $50,000 investment, Westward Investment Corporation gained
58 percent ownership of Shield Industries.
In a reverse merger, Westward Investment Corporation (along with the 58 percent
interest in Shield Industries) merged with Spectrum, Limited, and each appellant received
stock in Spectrum.
with Spectrum, Limited, and each appellant received stock in Spectrum. Westward
Investment Corporation is now in dissolution and its assets have been transferred to
Spectrum, Limited.
The appellants contend that the district court abused its discretion when it denied their
motion to set aside the default judgment because they had demonstrated mistake,
inadvertence, surprise or excusable neglect as well as a meritorious defense to the
respondent's complaint. They further contend that the judgment is void and that the district
court erroneously admitted into evidence unsigned self-serving documents.
The appellants in their motion only claimed that the default judgment was taken against
them through their mistake, inadvertence, surprise or excusable neglect. In Hotel Last
Frontier v. Frontier Prop., 79 Nev. 150, 154, 380 P.2d 293, 295 (1963), this court considered
the preexisting case law on the question of setting aside default judgments and set forth
certain requirements which must be met before such a judgment may be set aside: (1) The
showing required by NRCP 60(b)(1), formerly NCL 8640, of mistake, inadvertence, surprise,
or excusable neglect, singly, or in combination, must, of course, be made[,] and (2) The
showing required by case precedent that a meritorious defense' exist to the claim for relief
asserted, also must be made. The appellants contend that through the affidavit and testimony
of the appellant, Alfred H. Britz, they showed mistake, inadvertence, surprise and excusable
neglect. Britz testified that he had a conversation on December 20, 1969, with the
respondent's attorney, Stephen L. Morris, and at that time he advised Morris that an
arrangement was made for settlement with Westward Investment Corporation and that in fact
$30,500 had been paid to the respondent in part settlement. Britz also claimed that he was
advised by Morris that he need not answer the complaint or be concerned about being present
for the taking of his deposition which had previously been noticed and that in the event any
problems arose Morris would notify him before any action was taken. The affidavit and
testimony of Britz was directly controverted by the testimony of Morris. The trial judge chose
to believe Morris.
[Headnotes 1, 2]
An examination of the testimony of Morris and the exhibits in evidence shows that the
appellants were not entitled to relief under NRCP 60(b)(1). The trial court had the witnesses
directly before it and was able to consider not only their testimony, but also their demeanor.
When there is substantial conflict in evidence, and sufficient evidence to support a finding for
either party, the decision of the trial court must be sustained on appeal.
appeal. Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747 (1944); Nevada Bank of Commerce v.
Esquire Real Estate, Inc., 86 Nev. 238, 468 P.2d 22 (1970); Lazovich and Lazovich, Inc. v.
Harding, 86 Nev. 434, 470 P.2d 125 (1970).
During the course of the hearing the trial judge became concerned that respondent's
counsel was asking questions on cross-examination beyond the realm of materiality and
requested a statement from him explaining what bearing his line of questioning had on the
motion. Respondent's counsel, in his statement, touched upon the merits of the case and it
was to some extent conclusory. The appellants claim that the statement was highly improper,
decidedly prejudicial, scandalous and that it unquestionably influenced the court. They have
cited no authority to support their claim of error. We find their contention to be without merit.
Riverside Casino v. J. W. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964).
[Headnote 3]
The appellants also contend that they were unduly prejudiced when the trial court admitted
into evidence a proposed stipulation which had been signed by Stephen L. Morris and mailed
to George E. Graziadei, an attorney who was the resident agent for Westward Investment
Corporation and who had been in communication with the appellants regarding this litigation.
Because it was only signed by the sender, Stephen L. Morris, it merely expressed the terms
upon which he would be willing to extend time for taking the deposition of Alfred H. Britz
and for the defendants to file an answer. The contents of the proposed stipulation as evidence
was in the same category as a letter. It expressed the intent of the sender and became notice to
the recipient. At most the proposed stipulation was cumulative evidence. Again the appellants
have cited no authority to support their contention that the trial court erred when it received
the proposed stipulation into evidence. We also find this contention to be without merit.
Riverside Casino v. J. W. Brewer Co., supra.
[Headnote 4]
Having concluded that the trial court was justified in deciding that the appellants had
failed to make a showing of mistake, inadvertence, surprise or excusable neglect, we need not
consider whether they had a meritorious defense.
Although we favor adjudication of cases upon their merits, the trial judge is free to
judiciously and reasonably exercise discretion in determining whether a default judgment
should be set aside. A court has wide discretion in determining what neglect is excusable
and what is inexcusable."
neglect is excusable and what is inexcusable. Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360
P.2d 839, 841 (1961). In Minton v. Roliff, 86 Nev. 478, 480, 471 P.2d 209, 210 (1970), this
court said: We have repeatedly held that a trial court's exercise of discretion in granting or
denying a motion to set aside a default judgment will not be disturbed on appeal absent an
abuse of discretion. E.g., Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); Hotel Last
Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963); Blakeney v.
Fremont Hotel, Inc., 77 Nev. 191, 360 P.2d 1039 (1961).
In Lentz v. Boles, supra, at 200, it was said: We wish not to be understood, however, that
this judicial tendency to grant relief from a default judgment implies that the trial court
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, may very well warrant a denial of
the motion for relief from the judgment.
Here the appellants have failed to carry their burden of showing mistake, inadvertence,
surprise, or excusable neglect, either singly or in combination. The burden of proof on such
a motion is on the moving party who must establish his position by a preponderance of the
evidence. Luz v. Lopes, 358 P.2d 289, 294 (Cal. 1960).
[Headnotes 5, 6]
The appellants also urge on appeal that the default judgment as entered is void for the
reasons that: (1) the second claim in the complaint is defective on its face because the alleged
fraud was not stated with sufficient particularity as required by NRCP 9(b);
1
(2) the trial
court failed to make separate findings of fact and conclusions of law as required by NRCP
52(a);
2
and (3) the evidence was incompetent and immaterial and did not support the
judgment. These contentions were not urged in their motion to set aside the default judgment
nor were they ever presented to the trial court.
____________________

1
NRCP 9(b): Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of
mind of a person may be averred generally.

2
NRCP 52(a): Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court
shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the
appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the
findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not
necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard
shall be
nor were they ever presented to the trial court. A point not urged in the trial court, unless it
goes to the jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal. Parks Et Al. v. Garrison, 57 Nev. 480, 67 P.2d 314 (1937); Agricultural
Ins. Co. v. Biltz, 57 Nev. 370, 64 P.2d 1042 (1937); Harper v. Lichtenberger, 59 Nev. 495, 92
P.2d 719 (1939). None of the appellants' claims go to the jurisdiction of the trial court.
[Headnotes 7-11]
Even if the respondent did not strictly comply with NRCP 9(b), the appellants' failure to
timely raise the issue waives the requirement. See Poe v. La Metropolitana Co., 76 Nev. 306,
353 P.2d 454 (1960); cf. Southern Pac. Co. v. Libbey, 199 F.2d 341 (9th Cir. 1952). In any
event, failure of a plaintiff to comply with NRCP 9(b) does not ipso facto divest a trial court
of jurisdiction, but only subjects the complaint to a motion for a more definite statement, or at
the very worst to dismissal with leave to amend. Sax v. Sax, 294 F.2d 133 (5th Cir. 1961). As
for the appellants' contention that the trial court failed to make separate findings of fact and
conclusions of law in compliance with NRCP 52(a) before entry of judgment, it is obvious
that they have overlooked the fact that these requirements apply only to those actions tried
upon the facts. A case submitted for judgment under NRCP 55(b)(2) is not tried upon the
facts within the meaning of NRCP 52(a). Here, at the time judgment was entered, the facts
were not in issue and no finding of fact and conclusion of law was required. Cf. Somers Coal
Co. v. United States, 2 F.R.D. 532 (N.D. Ohio 1942). The appellants' other contention that the
judgment was void because the evidence supporting it was incompetent and immaterial is
entirely without merit.
Finding no abuse of discretion, the order of the district court is affirmed.
Zenoff, C. J., Thompson and Gunderson, JJ., and Young, D. J., concur.
____________________
given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, to
the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or
memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law specifically
appear as such therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion.
____________
87 Nev. 448, 448 (1971) Monsour v. Haddad
JOSEPH S. MONSOUR, MARY M. MONSOUR, and MILO MUSLIN,
Appellants, v. MIKE HADDAD, Respondent.
No. 6478
September 16, 1971 488 P.2d 916
Appeal from order of dismissal and order denying rehearing entered by Eighth Judicial
District Court, Clark County; William R. Morse, Judge.
Plaintiffs brought action against husband and wife to set aside deed, wherein wife
quitclaimed her interest in property to husband, on ground that it was a fraudulent
conveyance. The district court granted husband's motion to dismiss and the plaintiffs
appealed. The Supreme Court held that where trial court did not make an express
determination that there was no just reason for delay at time it entered order of dismissal as to
husband, order of dismissal was not final.
Appeal dismissed.
Stanley W. Pierce, of Las Vegas, for Appellants.
Hilbrecht, Jones & Schreck, of Las Vegas, for Respondent.
Appeal and Error.
Where trial court made no express determination that there was no just reason for delay at time it ordered
entry of judgment in favor of husband in action brought against husband and wife to set aside deed of real
estate wherein wife had quitclaimed her interest to husband, order of dismissal as to husband was not final
and appeal from that order would be dismissed. NRCP 54(b).
OPINION
Per Curiam:
The appellants commenced this action in the district court against respondent Mike
Haddad and his wife Adele, seeking to set aside, on the ground that it was a fraudulent
conveyance, a certain deed of real property wherein Adele quitclaimed her interest therein to
Mike. The court below granted Mike's motion to dismiss the complaint, and the appellants
have appealed from that order of dismissal, failing, however, to comply properly with Rule
54(b) of the Nevada Rules of Civil Procedure, which provides in part that when more than
one claim for relief is presented in an action, the court may direct the entry of a final
judgment upon one or more but less than all of the claims "only upon an express
determination that there is no just reason for delay and upon an express direction for the
entry of judgment.
87 Nev. 448, 449 (1971) Monsour v. Haddad
all of the claims only upon an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment. In the absence of such determination and
direction, any order or other form of decision, however designated, which adjudicates fewer
than all the claims . . . shall not terminate the action as to any of the claims . . . , and the order
or other form of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims . . .
The lower court, in ordering entry of judgment in favor of Mike on July 14, 1970, did not
make at that time an express determination that there is no just reason for delay, as
provided by NRCP 54(b); consequently, the order of dismissal was not final. Wilmurth v.
State, 79 Nev. 490, 387 P.2d 251 (1963). Therefore, this appeal is dismissed.
____________
87 Nev. 449, 449 (1971) Ahlswede v. Schoneveld
A. C. AHLSWEDE, Appellant, v. ED SCHONEVELD, WANDA SCHONEVELD, and
TONY SCHONEVELD, dba SCHONEVELD MILL, Respondents.
No. 6385
September 17, 1971 488 P.2d 908
Appeal from a judgment of the First Judicial District Court, Lyon County; Richard L.
Waters, Jr., Judge.
Claim and delivery action to regain possession of cattle which were allegedly purchased by
plaintiffs from defendant's former employer and which were being held by defendant. The
district court entered judgment for plaintiffs, and defendant appealed. The Supreme Court,
Batjer, J., held that although manager of employer's ranch acquired agister's lien for pasturage
and other feed furnished to his employer's cattle while they were actually pastured by the
manager on his own ranch, such lien was lost when he took or allowed the cattle to be taken
back to his employer's ranch and his actions in retaking the cattle after some of them had been
sold to plaintiffs were wrongful and did not revive his lien.
Affirmed.
Herbert F. Ahlswede, of Reno, for Appellant.
Diehl, Recanzone & Evans, of Fallon, for Respondents.
1. Animals.
Usually a person does not acquire an agister's lien by furnishing feed which is fed to animals elsewhere
than on the furnisher's premises because he does not have the requisite possession to establish his lien.
NRS 108.540, subd. 2.
2. Animals.
Servant for hire is not ordinarily entitled to benefit of an agister's lien. NRS 108.540, subd. 2.
3. Stipulations.
Parties may stipulate to facts but they may not stipulate to the law.
4. Liens.
Possession is essential to creation and preservation of liens under the common law.
5. Animals.
Agister's lien attaches only while animals remain in possession of the lienholder. NRS 108.540, subd.
2.
6. Animals.
Although manager of employer's ranch acquired agister's lien for pasturage and other feed furnished to
his employer's cattle while they were actually pastured by the manager on his own ranch, such lien was lost
when he took or allowed the cattle to be taken back to his employer's ranch and his actions in retaking the
cattle after some of them had been sold to plaintiffs were wrongful and did not revive his lien. NRS
108.540-108.570.
OPINION
On April 2, 1969, the respondents commenced a claim and delivery action, in district
court, to regain possession of 62 head of cattle which they allege to have purchased from
William D. Colburn, and which were being wrongfully held by the appellant.
The matter was tried before the district court without a jury. The trial court found that the
appellant wrongfully took possession of the 62 head of cattle belonging to the respondents
under an alleged agister's lien when no such lien existed; ordered the undertaking
1
which had
been filed on the claim and delivery of the cattle exonerated, and granted judgment in favor of
the respondents in the sum of $3,812.56, plus costs.
During the year 1967, the appellant was hired as the manager of the Colburn Ranch owned
by William D. Colburn, and located near Yerington, Nevada. On January 17, 1969, Colburn
sold certain cattle to S & S Cattle Company, a family partnership formed by the
respondents.
____________________

1
On May 23, 1969, the respondents filed an undertaking on claim and delivery of personal property in the
amount of $40,000, and the cattle were released to them.
partnership formed by the respondents. Those cattle eventually became the subject of this
litigation. Three days after he sold the cattle, Colburn leased the ranch to Tony Schoneveld,
one of the respondents. The cattle purchased by the respondents remained on the leased
premises along with between 250 to 300 head of cattle still owned by Colburn.
The appellant's employment as manager of the ranch was terminated on the 1st day of
February, 1969; thereafter, on February 8, 1969, he reentered the Colburn Ranch premises
and removed 62 head of cattle, claiming an agister's lien.
2
In taking the cattle, the appellant
asserted that Colburn owed him money for pasturage provided on the appellant's ranch and
feed provided from the appellant's ranch and taken to the Colburn Ranch where it was fed to
the cattle.
The appellant asserted at trial and again upon this appeal that he held a valid agister's lien,
and asks this court to reverse the adverse judgment of the lower court.
At common law, agisters had no lien for the care and feeding of animals bailed to them.
This was because they did not impart any new or added value to them. Furthermore they were
not within the scope of the rule which confers a lien upon an innkeeper because agisters are
not required to receive all animals that may be brought to them for keeping, but they could
refuse service and impose their own terms. NRS 108.540
3
abrogates the common law rule
denying a lien to agisters. The trial court correctly found that the appellant had no agister's
lien when he retook the respondents' cattle.
[Headnote 1]
Usually a person does not acquire an agister's lien by furnishing feed which is fed to
animals elsewhere than on the furnisher's premises because he does not have the requisite
possession to establish his lien. Cf. Roswell Trading Co. v. Long, 192 P. 482 (N.M. 1920).
[Headnote 2]
Likewise, a servant for hire is not ordinarily entitled to the benefit of an agister's lien.
McKee Live Stock Co. v. Menzel, 201 P.
____________________

2
An agister is a particular kind of bailment under which a person takes in animals for care and pasturing, for
a consideration. Bramlette v. Titus, 70 Nev. 305, 267 P.2d 620 (1954).

3
NRS 108.540(2) provides in pertinent part: Any person furnishing feed, pasture, or otherwise boarding any
animal or animals, at the request or with the consent of the owner or his representative, shall have a lien upon
such animal or animals, and may retain possession thereof until the sum due for such feed, pasture or board has
been paid.
201 P. 52 (Colo. 1921); National Bank of Republic v. Drulas, 214 P. 24 (Utah 1923). At the
time the animals were actually pastured by the appellant on his ranch, he acquired an agister's
lien for the pasturage and other feed furnished to them there. He was then acting in the
capacity of an agister and not as the manager of the Colburn Ranch.
[Headnote 3]
Although the respondents concede that the appellant had an agister's lien on Colburn's
cattle prior to his termination as ranch manager but that his possession was lost and his lien
terminated when he was fired,
4
this is an invalid legal conclusion. Parties may stipulate to
facts but they may not stipulate to the law. Such stipulations as to the law will be disregarded.
April Fool Gold Mining and Milling Co. v. Dula, 24 Nev. 289, 52 P. 684 (1898); Beko v.
Kelly, 78 Nev. 489, 376 P.2d 429 (1962). When the appellant took or allowed the cattle to be
taken from his premises back to the Colburn Ranch, he lost his agister's lien. He was no
longer a bailee, and his control of the cattle thereafter was in the capacity of an employee of
Colburn, and Colburn was in possession.
[Headnotes 4, 5]
Possession is essential to the creation and preservation of liens under the common law.
Reed v. Ash, 3 Nev. 116 (1867). The rule is no different with regard to statutory liens. The
right begins and ends with possession. An agister's lien attaches only while the animals
remain in possession of the lienholder. McKee Live Stock Co. v. Menzel, supra; Hill v.
Rhule, 204 P. 894 (Colo. 1922); First Nat. Bank v. Silva, 254 P. 262 (Cal. 1927); Loader v.
Bank of Idana, 216 P. 264 (Kan. 1923); Hoy v. Griffin, 22 P.2d 449 (Kan. 1933); Rainey v.
Williams, 273 S.W.2d 890 (Tex.Cir.App. 1954); Jones on Liens, 21, at 17 (3rd ed. 1914).
There have been two cases decided by this court construing the agister's lien statutes and
both were decided before the enactment of NRS 10S.540.
____________________

4
The following language is found in the respondents' answering brief: The Respondents did not contend at
trial, nor do they now contend, that Appellant was never entitled to an agister's lien on MR. COLBURN'S
animals because of his position as a manager or foreman of the COLBURN RANCH. That is the question
decided by the Oklahoma Supreme Court in National Bank of Commerce vs. McDaniel, and Respondents have
no quarrel with the Appellant on this score. The contention of the Respondents, at trial and on appeal, is that
MR. AHLSWEDE had some custody or possession of the animals during the time be was employed as manager
of the COLBURN RANCH, but that this custody or possession was lost by him when he was removed from his
position as manager or foreman.
the agister's lien statutes and both were decided before the enactment of NRS 108.540. The
opinions in these two cases, Cardinal v. Edwards, 5 Nev. 36 (1869) and Estey v. Cooke, 12
Nev. 276 (1877), were rendered when Statutes of Nevada 1866, Chapter XX, page 65
5
was
in effect. The modifications found in NRS 108.540 do not in any way change the rule that
possession is essential to the creation and preservation of liens. This court in Cardinal v.
Edwards, supra, at 42, construed the then existing statute as follows: A voluntary
relinquishment or surrender of the possession always destroys the lien. That holding was
reaffirmed in Estey v. Cooke, supra. Cf. United States v. Henderson, 29 F.Supp. 1006 (D.
Nev. 1939).
In Nevada-Douglas Co. v. Berryhill, 58 Nev. 261, 272-273, 75 P.2d 992, 996 (1938), this
court, distinguishing between a lien and a pledge, quoted with approval from Winnemucca
State Bank & Trust Co. v. Corbeil, 42 Nev. 378, 383, 178 P. 23, 24 (1918): The contract or
pledge exists in law as well as equity, and that by operation of law the pledgee takes, not a
lien only, which is merely a right to retain until the debt, in respect to which the lien was
created, has been satisfied, but a propertyan ownership in the property pledged. In Story on
Bailments (8th ed.), sec. 311, p. 265, it is said: [B]ut in the case of a lien, nothing is
supposed to be given but a right of retention or detainer, unless under special circumstances.'
See also Ewing v. Fahey, 86 Nev. 604, 472 P.2d 347 (1970); Hughes v. Aetna Ins. Co., 261
S.W.2d 942 (Mo. 1953); 53 C.J.S., Liens, sec. 17(3).
If the appellant had continued either actual or constructive possession of the cattle after he
had pastured and fed them on his premises, his agister's lien would not have been defeated by
the sale of the cattle by Colburn to the respondents, but the appellant's return of the cattle or
his acquiescence in their return to the Colburn Ranch terminated his lien. As was said by this
court in Reed v. Ash, supra, at 19: Nor . . . would her security have held good one hour
longer than she retained possession. The appellant's control of the cattle in his capacity as
ranch manager for Colburn was not the requisite possession to preserve his agistment.
____________________

5
This code section is also found in Cutting's Compiled Laws of Nevada, Annotated 1861-1900 (1900),
section 3905, page 808 and Bonnifield & Healy Compiled Laws of Nevada, Statutes of 1861-1873 (1873),
Volume I, Chapter XX, at page 52. The law read in part: Any ranchman, or other person or persons, keeping
corrals, livery or feed stables, or furnishing hay, grain, pasture, or otherwise boarding any horse or horses, mule
or mules, ox or oxen, or other animal or animals, shall have a lien upon and retain possession of the same, or a
sufficient number thereof, until all reasonable charges are paid.
ranch manager for Colburn was not the requisite possession to preserve his agistment.
Nowhere in NRS 108.540-108.570 is there any provision for retaking animals once held
under an agister's lien, but where possession has been lost. Cf. NRS 108.280, where a
garageman is specifically granted the right to regain possession and assert his lien even
though possession has been voluntarily relinquished. If the legislature had intended to permit
animals, subject to an agister's lien, to be retaken once possession is lost, it could have
enacted a section in the agister's lien law similar to NRS 108.280. See Yellow Mfg.
Acceptance Corp. v. Bristol, 236 P.2d 939 (Ore. 1951); Barbre-Askew Finance v. Thompson,
100 S.E.2d 381 (N.C. 1957).
[Headnote 6]
In Hoy v. Griffin, supra, 22 P.2d at 451, that court said: If the cattle were turned back to
their owner or if he assumed possession and control of them, the lien that may once have
existed would . . . be waived. In Hill v. Rhule, supra, the court held: . . . [T]here can be no
agister's lien founded on wrongful possession. (Citation omitted.) Nor does wrongful
possession revive any lien. Because he had lost his agister's lien, the appellant's actions were
wrongful and his lien did not revive.
The appellant relies heavily upon National Bank of Commerce v. McDaniel, 174 P. 286
(Okla. 1918). A reading of the statute construed in that opinion makes no mention of
possession and the Oklahoma Supreme Court, at 288, held: The lien provided for by our
statute is not designated a possessory lien, . . . nor is it, by the terms of the statutes, dependent
upon possession.
The appellant has failed to cite any authority in support of his contention that the trial
court erred when (1) it found that the respondents were the owners of and entitled to the
possession of the cattle in question; (2) rejected the appellant's offer of proof; and (3)
restricted the cross-examination of one of the respondents, Edward Schoneveld. Those
specifications of error have been reviewed and found to be without merit. Riverside Casino v.
J. W. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964).
____________
87 Nev. 455, 455 (1971) Marshall v. Sheriff
DENNIS MARSHALL, Appellant, v. SHERIFF,
No. 6658
September 23, 1971 488 P.2d 1157
Appeal from order of the Eighth Judicial District Court, Clark County, denying a pre-trial
petition for a writ of habeas corpus; Howard W. Babcock, Judge.
Habeas corpus proceeding. The district court denied writ and the petitioner appealed. The
Supreme Court held that Nevada executive warrant was not defective because it recited that
the defendant was charged in California with violations of certain numbered sections of the
California Penal Code, without reciting the specific crimes charged by their descriptive
names.
Affirmed.
Alan R. Johns, of Las Vegas, for Appellant.
Charles L. Garner, Chief Deputy District Attorney for Appeals, Clark County, for
Respondent.
1. Habeas Corpus.
Executive warrant is presumed valid. NRS 179.177-179.235.
2. Habeas Corpus.
The defendant has burden to overcome prima facie existence of every fact the Governor was obliged to
determine prior to issuance of executive warrant in extradition proceeding. NRS 179.177- 179.235.
3. Extradition.
Nevada executive warrant was not defective because it recited that the defendant was charged in
California with violations of certain numbered sections of the California Penal Code, without reciting the
specific crimes charged by their descriptive names. NRS 179.177-179.235.
4. Extradition.
Purpose of documents required by extradition statutes is to establish probable cause for believing that an
offense has been committed in demanding state by accused. NRS 179.177-179.235.
5. Extradition.
In determining whether documents required by extradition statute are sufficient to establish probable
cause for believing that offense has been committed in demanding state by accused, legal technicalities are
disregarded. NRS 179.177-179.235.
6. Extradition.
The court must apprise the accused of the crimes charged before his delivery to demanding authority can
be accomplished. NRS 179.177-179.235.
7. Habeas Corpus.
Assignments of error urged as grounds for reversal will not be considered in absence of supporting
authority, or on failure of the defendant to argue the point, unless error is so unmistakable that it reveals
itself upon review of the record.
OPINION
Per Curiam:
On January 22, 1971, an executive warrant was issued by the Governor of the State of
Nevada, for the arrest of the appellant and his delivery to the State of California. Pursuant to
that warrant the appellant was arrested. He was admitted to bail, and upon the denial of his
petition for a writ of habeas corpus, he has appealed.
The appellant had been charged by information filed in California with the crimes of
unlawful possession of narcotics, unlawful possession of dangerous drugs, and public
intoxication. There had also been a bench warrant issued for his arrest. The Nevada executive
warrant recited that the appellant was charged with violations of certain numbered sections of
the California Penal Code, without reciting the specific crimes charged by their descriptive
names, and the appellant thus contends that the executive warrant is defective for failure to
adequately inform him of the charges. The appellant further contends that there are other
deficiencies in the extradition documents that render them fatally defective, but no cases are
cited in the appellant's brief, and he cites no substantial authority in support of his position.
[Headnotes 1-3]
As a result this court has had thrust upon it the responsibility and burden of making its
own independent examination of the executive warrant and the underlying extradition
documents, to determine if they are valid under NRS 179.177- 179.235. We have reviewed
the record for that purpose, and we find no apparent deficiencies. Thus the executive warrant
is presumed to be valid, and the appellant has failed to carry his burden of overcoming the
prima facie existence of every fact the Governor was obliged to determine prior to the
issuance of the executive warrant. Jernigan v. Sheriff, 86 Nev. 387, 469 P.2d 64 (1970).
[Headnotes 4-6]
As we said in Sheriff v. Thompson, 85 Nev. 211, 452 P.2d 911 (1969), [T]he purpose of
the documents required by NRS 179.183 is to establish probable cause for believing that an
offense has been committed in the demanding state by the accused. . . . Legal technicalities
are disregarded. . . . Moreover, the court must apprise the accused of the crimes charged, in
accordance with NRS 179.197, before his delivery to the demanding authority can be
accomplished. Thus we find that the appellant's contentions are without merit.
[Headnote 7]
We have previously held that assignments of error urged by an appellant as grounds for
reversal will not be considered absent supporting authority, or upon a failure of the appellant
to argue the point, unless error is so unmistakable that it reveals itself upon a review of the
record. Riverside Casino Corp. v. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964); Smithart v.
State, 86 Nev. 925, 478 P.2d 576 (1970); Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334
(1971).
The record here does not manifest error. Accordingly, without the citation of supporting
authority the appeal is frivolous in nature, and should be addressed by the respondent in the
manner outlined by Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969); Watkins v. State, 85
Nev. 102, 450 P.2d 795 (1969); and Cousineau v. Warden, 87 Nev. 254, 484 P.2d 1098
(1971). Because that course was not followed the appeal has been submitted for consideration
on its merits, and we affirm the district court's order denying habeas corpus.
Affirmed. Remittitur shall issue forthwith.
____________
87 Nev. 457, 457 (1971) Merica v. State
JOSEPH REX MERICA, Appellant, v. THE
No. 6353
September 24, 1971 488 P.2d 1161
Appeal from judgment of conviction and sentence of the First Judicial District Court,
Carson City; Richard L. Waters, Jr., Judge.
Prosecution for possession of marijuana. Defendant was convicted in the district court and
defendant appealed. The Supreme Court, Gunderson, J., held that even if defendant had
standing to raise the issue, as a guest of his co-defendant's mother in her apartment, a
screened alcove housing heating and air conditioning equipment was not a place where
he was entitled to assume privacy, and his Fourth Amendment rights were not violated
when a police officer entered such alcove and discovered marijuana.
Supreme Court, Gunderson, J., held that even if defendant had standing to raise the issue, as a
guest of his co-defendant's mother in her apartment, a screened alcove housing heating and air
conditioning equipment was not a place where he was entitled to assume privacy, and his
Fourth Amendment rights were not violated when a police officer entered such alcove and
discovered marijuana.
Affirmed.
Jerry C. Lane, of Carson City, for Appellant.
Robert List, Attorney General; Michael E. Fondi, District Attorney, of Carson City, for
Respondent.
Even if defendant had standing to raise issue, as guest of his co-defendant's mother in her apartment,
screened alcove housing heating and air conditioning equipment was not place where he was entitled to
assume privacy, and his Fourth Amendment rights were not violated when police officer entered such
alcove and discovered marijuana. NRS 453.030; U.S.C.A.Const. Amend. 4.
2. Arrest.
Where officer knew that there was baggie containing marijuana in alcove in apartment building, saw
defendant and co-defendant pass by it, and discovered that baggie was then missing from alcove, he had
probable cause to arrest defendant and co-defendant without a warrant though about 15 minutes elapsed
before he could succeed in apprehending them. NRS 453.030; U.S.C.A. Const. Amend. 4.
3. Criminal Law.
There could be no valid constitutional objection to admission of baggie and marijuana which it
contained, where same had been recovered from sidewalk at a place in plain view. NRS 453.030;
U.S.C.A.Const. Amend. 4.
4. Criminal Law.
Where objection that baggie and marijuana which it contained should not have been admitted against
defendant because evidence was allegedly insufficient to justify jury finding that defendant had possessed it
was not specified in trial court it would not be considered on appeal. NRS 453.030; U.S.C.A.Const.
Amend. 4.
5. Criminal Law.
Where marijuana cigarette found on defendant's person was indubitably connected with him and
warranted his conviction for possession of marijuana, reviewing court would not decide, on contention that
baggie and its contents should not have been admitted, whether conviction could have been sustained
with only contents of "baggie" in evidence.
contents of baggie in evidence. NRS 453.030; U.S.C.A.Const. Amend. 4.
OPINION
Convicted of violating NRS 453.030 by possessing marijuana, appellant contends his
Fourth Amendment rights were violated:
(1) When a police officer entered a bamboo-screened alcove housing heating and air
conditioning equipment, on the second floor of an apartment building where the
co-defendant's mother lived, and there discovered a plastic baggie containing marijuana;
and
(2) When the watching police officer found the baggie missing after defendants paused
at the alcove and moved its screen, then forthwith pursued their vehicle, arrested them,
caused appellant's search, discovered a marijuana cigarette on appellant's person, and
recovered an apparently identical baggie of marijuana nearby where another officer had
seen it thrown from defendants' vehicle.
[Headnote 1]
1. Appellant's first point apparently is based on the contention that the officer unlawfully
entered an area not open to the public. We need not resolve appellant's dubious status to raise
this issue.
1
Assuming appellant had status as a guest of his co-defendant's mother, his rights
to privacy could be no greater than if her apartment were his own dwelling, cf. United States
v. Capps, 435 F.2d 637 (9th Cir. 1970); and, vested with her status, appellant would have no
valid constitutional complaint. The record does not reflect that the building's tenants had any
more right to enter the alcove than did the public at large; however, assuming this, the
following language from a recent decision by Massachusetts' highest court is pertinent:
____________________

1
The record does not establish that appellant had any legitimate reason for coming to the building, at any
prior time he may have been there, or that he ever had any right to enter the alcove. Regarding status of a
trespasser to complain of an unlawful search, and the burden of proving status, consider: Jones v. United States,
362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965);
Osborne v. State, 82 Nev. 342, 418 P.2d 812 (1966); Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968); Gebert
v. State, 85 Nev. 331, 454 P.2d 897 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968); United States v. Gregg, 403 F.2d 222 (6th Cir. 1968); Gregg v. United States, 394 U.S. 489, 89
S.Ct. 1134, 22 L.Ed.2d 442 (1969); Meade v. Cox, 310 F.Supp. 233 (W.D. Vir. 1970).
public at large; however, assuming this, the following language from a recent decision by
Massachusetts' highest court is pertinent:
The area where [the narcotics] were found . . . was not in [defendant's] control. It was a
common area, available to each tenant of the building, in common with the others, for
washing clothes and perhaps for limited other purposes. [Defendant] did not have any
exclusive control of any part of it. It is obvious that the cellar remained subject to the owner's
control. . . . The cellar was not a part of [defendant's] apartment or home. There he had no
right to privacy, although (with other tenants) he could use it appropriately. The landlord's
invitation to [defendant], however, to use the cellar, and his easement or license to do so
plainly did not extend to the use of the cellar for storing contraband narcotics. . . .
We assume, as the trial judge found, that the three police officers committed a trespass in
entering the cellar . . . This entry, however, was a trespass against the building owner (who is
not here objecting), not against [defendant]. It did not invade an area within the curtilage' of
[defendant's] apartment. See United States v. Miguel, 340 F.2d 812, 814 (2nd Cir.), cert. den.
382 U.S. 859, 86 S.Ct. 116, 15 L.Ed.2d 97. In a modern urban multifamily apartment house,
the area within the curtilage' is necessarily much more limited than in the case of a rural
dwelling subject to one owner's control. . . . In such an apartment house, a tenant's dwelling'
cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas
subject to his exclusive control. Commonwealth v. Thomas, 267 N.E.2d 489, 490-491
(Mass. 1971). In accord: People v. Terry, 454 P.2d 36 (Cal. 1969); Marullo v. United States,
328 F.2d 361 (5th Cir. 1964); Polk v. United States, 314 F.2d 837 (9th Cir. 1963).
As we recently pointed out in Casey v. State, 87 Nev. 413, 488 P.2d 546 (1971), the
United States Supreme Court's holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967), may require us to accord some search issues different analysis than in
the past. The doctrine of Katz is that the Fourth Amendment protects people, not places,
and that therefore an effort to decide whether or not a given area,' viewed in the abstract, is
constitutionally protected' deflects attention from the problem presented. 389 U.S., at 351.
The true inquiry, Katz teaches, is whether the person claiming protection under the
Constitution was entitled to assume" privacy at the place and under the circumstances
concerned.
assume privacy at the place and under the circumstances concerned. 389 U.S., at 352.
Accordingly, terms such as curtilage may in the future have little place in the proper
vocabulary of search and seizure law; yet, nonetheless we believe many cases decided before
Katz, whatever their language, constitute correct holdings that in the particular place and
circumstances concerned, the persons concerned had no constitutionally protected right to
expect privacy. Cf. Casey v. State, cited above. As the necessity arises, the courts will be
called upon to re-think old problem situations, in the light of Katz, to determine if they now
require different treatment.
2

In our view, now as in the past, neither a tenant nor his guests are entitled to assume
privacy in an equipment alcove like the one here concerned.
[Headnote 2]
2. Appellant contends that because he was arrested and searched without a warrant, the
court erred in not assigning the State the burden of proving probable cause for arrest. As his
counsel contends, Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966), holds the prosecution
has the burden to show probable cause for an arrest without a warrant. Schnepp also holds
that, however the record is developed, error in assigning the burden is harmless if probable
cause is established.
The constitutionality of a warrantless arrest depends on whether, at the moment it occurs,
facts and circumstances known to the officer warrant a prudent man in believing that a
felony has been committed by the person arrested. Nootenboom v. State, 82 Nev. 329, 334,
418 P.2d 490, 492 (1966); Schnepp v. State, cited above. As the record showed, when
appellant was arrested and searched, the investigating officer (who from experience judged
the baggie's contents to be marijuana) had substantial knowledge a felony had been
committed. From the fact the marijuana was gone after defendants' stop at the alcove, the
officer had solid ground to think one of them had assumed physical possession of the
contraband. Except for such inference as might be drawn from the fact that the co-defendant's
mother lived in the building, it was as likely that appellant had taken physical possession as
that the co-defendant had.
____________________

2
Compare: United States v. Buchner, 164 F.Supp. 836 (D.D.C. 1958), affirmed, Buchner v. United States,
268 F.2d 891 (D.C.Cir. 1958), with Cohen v. Superior Court, 85 Cal.Rptr. 354 (Cal.App. 1970), concerning use
of common areas to invade the reasonably expected privacy of a tenant within his apartment.
co-defendant had. Moreover, circumstances strongly suggested that whichever defendant had
retrieved the contraband marijuana (revealed in the characteristic plastic baggie) that man
felt free to commit a felony in the presence of the other. Either was likely to have the
marijuana; both were likely to be involved. True, the officer could not actually see the
contraband removed; true, he took time to determine it was missing from the alcove, and was
unable to apprehend the defendants for some fifteen minutes after their departure. Despite this
short time lapse, we think the facts known to the officer at the time of the arrest and incident
search showed probable cause, and that the seizure of the marijuana cigarette on appellant's
person was lawful.
[Headnote 3]
There could be no valid constitutional objection to admission of the baggie and its
contents, for these were recovered from the sidewalk at a place in plain view. Manning v.
State, 87 Nev. 299, 486 P.2d 485 (1971); Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969);
Stamps v. State, 83 Nev. 230, 428 P.2d 187 (1967).
[Headnotes 4, 5]
Although appellant only objected to admission of the contraband on the constitutional
grounds we deem insubstantial, for the first time on appeal he suggests that the baggie and
contents should not have been admitted against him, evidence being insufficient to justify the
jury finding that he had possessed it. This objection not having been specified in the lower
court, we will not consider it on appeal. Kelly v. State, 76 Nev. 65, 348 P.2d 966 (1960); cf.
Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961). As the marijuana cigarette found on
appellant's person was indubitably connected with him, and warranted his conviction for the
crime charged, there is no need to decide whether his conviction could have been sustained
with only the baggie's contents in evidence.
Other assignments of error do not require discussion.
Affirmed.
Zenoff, C. J., Batjer and Mowbray, JJ., and Compton, D. J., concur.
____________
87 Nev. 463, 463 (1971) Roseneau v. State
MARVIN JAMES ROSENEAU, Appellant, v. STATE
OF NEVADA Respondent.
No. 6040
September 24, 1971 488 P.2d 917
Appeal from conviction for the infamous crime against nature. Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
Affirmed.
H. Dale Murphy, Public Defender, and Jack Grellman, Deputy Public Defender, Washoe
Robert List, Attorney General, Robert E. Rose, District Attorney, and Gary R. Silverman,
OPINION
Per Curiam:
The appellant stands convicted of the infamous crime against nature [NRS 201.190] and is
presently incarcerated in the Nevada State Prison. The Public Defender of Washoe County
has submitted this appeal pursuant to the command of Anders v. California, 386 U.S. 738
(1967), and has referred to any point in the record that might arguably support an appeal.
Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969). This court ordered that a transcript be
supplied to the appellant, an indigent. Griffin v. Illinois, 351 U.S. 12 (1956); Draper v.
Washington, 372 U.S. 487 (1963); Eskridge v. Washington Prison Bd., 357 U.S. 214 (1958);
Entsminger v. Iowa, 386 U.S. 748 (1967). We have independently reviewed the claims of
error in the light of the complete record of this case, including the transcript, and find them to
be frivolous.
Affirmed.
____________
87 Nev. 464, 464 (1971) Dimond v. Linnecke
DICK DIMOND Appellant, v. LILLIAN B. LINNECKE, as Executrix of the Estate of Henry
F. Linnecke, aka Harry F. Linnecke, aka H. F. Linnecke, Respondent.
No. 6356
September 27, 1971 489 P.2d 93
Appeal from a judgment of the Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Action by trustee in bankruptcy against executrix of estate of deceased, who had been in
control of corporations two years before their bankruptcy, alleging that payment made to
decedent in consideration of his relinquishment of all claims against corporations and return
of management and stock to former owner, was void. The district court dismissed trustee's
complaint, and he appealed. The Supreme Court, Batjer, J., held that where it was clear from
record that at time decedent relinquished all claims against corporations and returned
management and stock to the former owner, in consideration of payment due decedent as
corporate creditor, corporations were in straitened financial circumstances but had not refused
to pay their obligations and, on contrary, business was operated for nearly two years thereafter
and creditors were paid in the neighborhood of $150,000 before involuntary bankruptcy
proceedings were commenced, trustee in bankruptcy could not claim relief under statute
prohibiting corporation from transferring any of its property to any of its officers in payment
of any debt when corporation has refused to pay any of its obligations when due.
Affirmed.
Frank R. Peterson, of Reno, for Respondent.
1. Corporations.
Under statute forbidding corporation from transferring any of its property to any of its officers, directors
or stockholders in payment of any debt when such corporation has refused to pay any of its other
outstanding obligations when due, term any means all or every, and a corporation paying some of its
notes and obligations is not within statutory prohibition. NRS 78.625, subd. 1.
2. Bankruptcy.
Where it was clear from record that at time decedent relinquished all claims against corporations and
returned management and stock to the former owner, in consideration of payment due decedent as
creditor, corporations were in straitened financial circumstances but had not refused
to pay their obligations and, on contrary, business was operated for nearly two years
thereafter and creditors were paid in the neighborhood of $150,000 before
involuntary bankruptcy proceedings were commenced, trustee in bankruptcy could
not claim relief under statute prohibiting corporation from transferring any of its
property to any of its officers in payment of any debt when corporation has refused to
pay any of its obligations when due.
decedent as creditor, corporations were in straitened financial circumstances but had not refused to pay
their obligations and, on contrary, business was operated for nearly two years thereafter and creditors were
paid in the neighborhood of $150,000 before involuntary bankruptcy proceedings were commenced, trustee
in bankruptcy could not claim relief under statute prohibiting corporation from transferring any of its
property to any of its officers in payment of any debt when corporation has refused to pay any of its
obligations when due. NRS 78.625, subd. 1.
3. Corporations.
Under statute prohibiting corporation from transferring any of its property to any of its officers, directors
or stockholders in payment of any debt when such corporation shall have refused to pay any of its other
outstanding obligations when due, payment by corporation of cash to former officer for debt owed was not
a transfer of property in kind for which officer failed to pay full value in cash and was not therefore
prohibited. NRS 78.625, subd. 1.
4. Corporations.
Payment of debt owed former officer by corporation which was legally insolvent but which made
payment with good-faith intention of continuance in business and in fact continued in actual business for
another two years thereafter and paid some $150,000 to creditors was not made with intent to prefer within
meaning of statutory prohibition against payment to a particular creditor when corporation is insolvent or
insolvency is imminent. NRS 78.625, subd. 2.
OPINION
On January 30, 1962, Henry F. Linnecke, one of the principal creditors of Ready-Mix
Western, Inc., a Nevada corporation, the successor of Ready-Mix Concrete Co., a Nevada
corporation, and its wholly-owned subsidiary, Vista Rock Products, Inc., a Nevada
corporation, entered into an assignment and pledge of corporate stock with Francis R. Smith,
the sole stockholder of these corporations, whereby Linnecke was granted the right to vote all
the corporate stock of the corporations. Smith and the other officers and directors remained in
office for a short time thereafter until a creditor's committee, headed by Linnecke, removed
them as officers and directors and replaced them with Linnecke, his wife, his son and
Manford Perry. Linnecke remained in control of the corporations until June 4, 1965 when
Smith and Linnecke entered into an agreement whereby Linnecke relinquished all claims
against the corporations and returned the management and stock to Smith in consideration for
the sum of $168,231.85. The funds were acquired by borrowing on a lease to a third party of
a gravel pit owned by the corporations and by selling scrap metal and "junk" belonging to
the corporations for $35,000.
party of a gravel pit owned by the corporations and by selling scrap metal and junk
belonging to the corporations for $35,000. These transactions were accomplished upon the
anticipation that control and management would be returned to Smith. He remained in control
of the corporations as president and director until 1967 when involuntary bankruptcy
proceedings were commenced.
On June 3, 1968, the appellant, as trustee in bankruptcy, filed a complaint against the
respondent as the executrix of the estate of Henry F. Linnecke, deceased, alleging that the
payment to Linnecke was in violation of NRS 78.625 and void.
This appeal is taken from the dismissal of the appellant's complaint. He contends that the
transfer to Linnecke was illegal and void within the provisions of NRS 78.625(1) and/or NRS
78.625(2).
1

The trial court determined that the payment to Linnecke did not fall within the restrictions
of NRS 78.625(1) because it was not a transfer of property in kind and it also noted that
there was no evidence that the respondent had refused to pay its debts. The record does not
indicate any direct statement on the part of representatives of the corporation that it would not
pay its debts; rather it appears the failure to pay and the postponement of payments was
dictated by a lack of funds.
[Headnote 1]
According to testimony relied on by the appellant, Ready-Mix was $2,300,000 in debt
when Linnecke took over, and when Smith went back into control after the payment to
Linnecke, Ready-Mix was $750,000 in debt. Vonderhide, the vice-president, claimed in
rough figures that he paid debts in the amount of $150,000 during the two years of operation
after Linnecke was out and before bankruptcy.
____________________

1
NRS 78.625(1): No corporation which shall have refused to pay any of its notes or other obligations, when
due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to
any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any
other consideration than the full value of the property paid in cash.
NRS 78.625(2): No conveyance, assignment or transfer of any property of any such corporation by it or by
any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security
given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is
imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation,
shall be valid. Every person receiving by means of any prohibited act or deed any property of a corporation shall
be bound to account therefor to its creditors or stockholders.
The prohibition in NRS 78.625(1) is limited to a corporation which has refused to pay
any of its notes or other obligations, when due. Ready-Mix did not refuse to pay its
obligations and it certainly did not refuse to pay any of its obligations because the record
indicates that it paid many of its obligations but not all of them, and that it was eventually
forced into bankruptcy. Here the phrase any of its notes or other obligations when due must
be construed to mean a general refusal to pay. Here the word any must be construed to
mean all or every and when a corporation is paying some of its notes and obligations it is
not within the restrictions of NRS 78.625(1).
Any other interpretation of the word any in this context would becloud the transfer of
any corporate property whatsoever other than for full value, regardless of the financial
condition of the corporation, unless at the moment of payment or transfer all corporate debts
were paid in full. The statute must be read in the light of what is reasonable and not merely
what is conceivable. Hill v. Celebrezze, 233 F.Supp. 298 (E.D.S.C. 1964); Mullins v. Cohen,
296 F.Supp. 181 (W.D.Va. 1969); Celebrezze v. Bolas, 316 F.2d 498 (8th Cir. 1963). NRS
78.625(1) contains no time limitation. Such a transfer or payment as above noted could take
place when a corporation was financially healthy, and years later if it ran into financial
difficulty such a transfer would be rendered invalid. This could not be the intent of the
legislature.
Donohue v. Zoning Bd. of App. of Town of Norwalk, 235 A.2d 643 (Conn. 1967); State v.
Brown, 129 N.E.2d 468 (Ohio 1955). The word any is capable of a diversity of meanings
and may be employed to indicate all or every as well as some or one. Its meaning in
a given statute depends upon the context and subject matter of the statute.
This court has never before been called upon to construe NRS 78.625(1)(2). However, that
section is very similar to Section 608.55, Fla. State, F. S. A. and Section 15 of the New York
Stock Corporation Law. McK. Consol. Laws, C 59, as that section read prior to its
amendment in the year 1929. Construction of those sections by the courts of Florida and New
York are here being considered in construing our statute. Cf. Ex parte Skaug, 63 Nev. 101,
164 P.2d 743 (1945); Kramer v. State, 60 Nev. 262, 108 P.2d 304 (1940); Stocks v. Stocks,
64 Nev. 431, 183 P.2d 617 (1947); Thran v. First Judicial District Court, 79 Nev. 176, 380
P.2d 297 (1963).
In Venice East, Inc. v. Manno, 186 So.2d 71, 74-75 (Fla. 1966), that court laid down the
following guidelines relative to the interpretation of the term "refused:" "The answer to
this argument lies in the construction of the statutory words 'refused to pay any of its
notes or other obligations when due.' There is sufficient evidence in the record to show
that plaintiffs had not paid all its obligations when due and had postponed payment on
several bills.
to the interpretation of the term refused: The answer to this argument lies in the
construction of the statutory words refused to pay any of its notes or other obligations when
due.' There is sufficient evidence in the record to show that plaintiffs had not paid all its
obligations when due and had postponed payment on several bills. There was no showing,
however, that plaintiffs had absolutely refused to pay these debts. Refused' and failed' are
not necessarily synonymous. We concede that there might be instances where repeated
postponement would actually amount to refusal, but we do not feel this to be the case here.
Although a corporation may be in rather desperate financial circumstances and have difficulty
meeting its obligations, it cannot be assumed that it has reached the extreme position of
refusing to pay. Swan v. Stiles, 87 N.Y.S. 1089 (Sup.Ct. 1904); Cf. Bielaski v. National City
Bank of New York, 58 F.2d 657 (S.D.N.Y. 1932).
[Headnote 2]
The word refused as used in NRS 78.625(1), denotes something more than a mere
passive failure. A refusal usually means a previous demand or request or the existence of
circumstances equivalent thereto. As used in NRS 78.625(1), it means more than mere inert
default by neglect. Accord, County Canvassing Board, Etc. v. Lester, 118 So. 201 (Fla. 1928).
Here the record is clear that at the time Smith regained control of the corporations they were
in straitened financial circumstances, but the record does not reveal that they had refused to
pay their obligations within the meaning of NRS 78.625(1). On the contrary, Smith operated
the business for nearly two years after assuming control, and paid in the neighborhood of
$150,000 to creditors. The appellant cannot claim relief under NRS 78.625(1).
In Inhabitants of Cape Elizabeth v. Boyd, 29 A. 1062-1063 (Maine 1894), it was held: A
refusal to pay a tax is one thing; a failure to pay is another. The former may be the result of
willfulness, or a denial of the legality of the tax. The latter may be the result of sickness and
poverty, and an utter inability to pay.
Chief Justice Marshall of the United States Supreme Court in Taylor v. Mason, 22 U.S.
325, 344 (1824), wrote: [T]here is a manifest distinction between refusing' and failing' to
comply with it. The first is an act of the will, the second may be an act of inevitable
necessity.
The fact that the corporations conducted a business for almost two years after the payment
to Linnecke and during that time paid approximately $150,000 to their creditors manifests
no willful refusal to pay, but an eventual inability to pay.
that time paid approximately $150,000 to their creditors manifests no willful refusal to pay,
but an eventual inability to pay.
[Headnote 3]
The trial court specifically found that NRS 78.625(1) was not applicable because the transfer
to Linnecke was a payment of cash and not a transfer of property in kind' for which
Linnecke failed to pay the full value of the property in cash. We agree. The purpose of the
statute is to preclude a corporation that finds itself in poor financial condition from
transferring its assets to an officer, director or stockholder for anything but the full value of
the asset paid in cash. This statute does not prohibit the payment of a debt owed to an officer,
director or stockholder.
[Headnote 4]
The appellant further contends that the payment to Linnecke was invalid because it
violated the provisions of NRS 78.625(2). Before a transfer comes within that subsection the
record must show the insolvency of the corporation and the intent to prefer the particular
creditor to whom payment was made.
The courts in New York and Florida, construing statutes similar to NRS 78.625(2), have
held that a corporation is insolvent if it is unable to meet its obligations in due course or
unable to pay its debts in the ordinary course of business. Todarelli v. Visigraph Typewriter
Mfg. Co., 34 F.Supp. 762 (S.D.N.Y. 1940); Bielaski v. National City Bank of New York,
supra. See also Bennett v. Gleisch, 3 F.Supp. 709 (E.D. N.Y. 1932); Davis v. Seneca Falls
Mfg. Co., 17 F.2d 546 (2nd Cir. 1927), and Freehling v. Michigan Repacking and Produce
Company, 426 F.2d 989 (5th Cir. 1970); In re Mobilift Equipment of Florida, Inc., 415 F.2d
841 (5th Cir. 1969).
In light of such interpretation of the meaning of insolvency the record clearly shows that
Ready-Mix and Vista were insolvent from 1962 until bankruptcy proceedings were
commenced in 1967. The trial court found insolvency but no intent to prefer. We agree.
In Cardozo v. Brooklyn Trust Co., 228 F. 333, 334 (2nd Cir. 1915), that court said: What,
then, is the meaning of intent to prefer' as used in the statute? In the sense that a person is
said to intend the natural consequences of his acts, it may be argued that any payment to one
creditor at a time when a corporation is unable to pay all creditors manifests an intention to
prefer the creditor who is actually paid.
intention to prefer the creditor who is actually paid. But this is obviously not the meaning of
the statutory requirement of an intent to prefer in addition to insolvency, for such a
construction would render the required intent superfluous and virtually eliminate it from the
statute. It seems to me that the true meaning is that, to constitute a preference, the corporation
or its officers making a payment must have known or expected that it would have that effect.
(Citing authority.) The statute is meant to apply when the corporation is confronted with the
problem: How are the assets of the corporation to be used, not in carrying on its business, but
in meeting its obligations. (Citing authority.) In other words, the question is whether the
payment was made in contemplation of insolvency and winding-up as an impending fact, or
in contemplation of continuing business in good faith.
In Freehling v. Michigan Repacking and Produce Company, supra, at 990-991, the court
held: [I]ntent to prefer' is present only when payments are made in contemplation of
insolvency and winding up of the business as an impending fact. Intent to prefer is not present
when such payments are made with the good faith intention of continuing in business.
A similar conclusion was reached in Bielaski v. National City Bank of New York, supra,
where the court concluded that a transfer is without intent to prefer if there is a good faith
belief that the gods will smile and the corporation will be able to continue in business after
the transfer. In accord, Todarelli v. Visigraph Typewriter Mfg. Co., supra; Drewen v. Union
Discount Co., 32 F.2d 691 (2nd Cir. 1929); In re Fred Stern & Co., 54 F.2d 478 (2nd Cir.
1931); Pender v. Levine, 44 F.2d 819 (S.D.N.Y. 1930); Haberman v. Larens Corporation, 35
N.Y.S.2d 533 (Sup.Ct. 1942).
The record clearly supports the trial court's determination that the payment to Linnecke
was made with intent to continue the business, hopefully in a profitable vein, and not for the
purpose of treating Linnecke as a preferred creditor. Immediately after Smith regained control
of the corporation, the vice-president, Henry J. Vonderhide, wrote to its creditors revealing
future plans for the management of the corporations and expressing the intent to go forward
with the business. This expression by the corporations, together with the fact that they
continued in active business for nearly two years thereafter, belies any intent to windup the
business. It appears that there was a good faith intention of continuing in business when
control was purchased from Linnecke. In fact, continuing and rejuvenating the business was
the entire purpose of regaining control from Linnecke.
rejuvenating the business was the entire purpose of regaining control from Linnecke. No
intent to prefer exists when such payments are made with the good faith intention of
continuing in business. Insolvency alone is not sufficient to make the transfer void under
NRS 78.625(2).
____________
87 Nev. 471, 471 (1971) Luria v. Zucker
BRUCE LURIA and KAREN LURIA Appellants, v. REUBEN ZUCKER, as Executor of the
Estate of Elaine Fleisher Zucker, Deceased, Respondent.
No. 6418
September 28, 1971 488 P.2d 1159
Appeal from order approving final account. Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Estate proceeding. The district court set apart a probate homestead and household
furnishings to surviving husband, and after entry of order approving final account of executor,
wife's children of prior marriage appealed. The Supreme Court, Thompson, J., held that
review of validity of order setting apart homestead was not authorized on appeal from
subsequent order settling and approving final account. The Court further held that where son
and daughter of decedent wife, who devised her community interest equally to husband and to
her children, were each an adult when order setting apart homestead was made, son and
daughter were not entitled to an accounting for reasonable rental value of homestead or other
credits.
Affirmed.
Lee & Beasey, of Las Vegas, for Appellants.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondent.
Review of validity of order setting apart a probate homestead to surviving husband was not authorized on
appeal from subsequent order settling and approving final account of executor. NRS 123.250, 146.020,
155.190, subd. 4.
Right of wife to dispose of her community interest in home by will is subordinate to statutory law
providing for probate homestead, and thus her disposition by will is subject to right of her surviving
husband and minor children to have realty set apart as probate homestead and to have assigned to them all
personalty exempt from execution, and property thus set apart is not subject to administration. NRS
146.020.
If all children are adults, decedent's surviving spouse is entitled to probate homestead for his own use.
NRS 146.020.
Where son and daughter of decedent's wife, who devised her community interest equally to husband and
to her children of prior marriage, were each an adult when order setting apart a probate homestead to
surviving husband was made, son and daughter were not entitled to an accounting for reasonable rental
value of homestead or other credits. NRS 146.020.
OPINION
[Headnote 1]
In this estate proceeding the district court set apart a probate homestead and household
furniture and furnishings to the surviving husband of the deceased, Reuben Zucker, as his
sole and separate property. NRS 146.020.
1
The homestead, an encumbered family residence,
was the community property of the deceased and Reuben, and the community interest of the
deceased therein was devised by her last will equally to Reuben and to Bruce and Karen
Luria, children of a prior marriage of the deceased.
2
The setting apart order was entered early
in the estate proceeding, and the objections of Bruce and Karen thereto were overruled.
____________________

1
NRS 146.020: Upon the return of the inventory or at any time thereafter during the administration, the
court or judge, of his own motion, or on application, shall set apart for the use of the family of the deceased all
of the personal property which is exempt by law from execution, and shall set apart the homestead, as designated
by the general homestead law then in force, whether such homestead has theretofore been selected as required by
law, or not, and the property thus set apart shall not be subject to administration.

2
NRS 123.250: 1. Upon the death of either husband or wife, one-half of the community property belongs to
the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and in the absence
thereof goes to the surviving spouse, subject to the provisions of NRS 123.260.
2. The provisions of this section apply to all community property, whether acquired prior or subsequent to
July 1, 1957.
thereto were overruled. They did not appeal at that time, and now seek to challenge the
propriety of that order on this appeal from a subsequent order of the district court settling and
approving the final account of the executor. Since an order setting apart property as a
homestead and property claimed to be exempt from execution is, by statute, expressly made
appealable [NRS 155.190(4)] a subsequent review of its validity is not authorized upon an
appeal from an order approving the final account. Cf. Maitia v. Allied L. & L. S. Co., 49 Nev.
451, 248 P. 893 (1926). Notwithstanding this bar to the present effort of Bruce and Karen to
challenge the propriety of the interlocutory setting apart order, it is essential that we discuss
that order to some extent since it affects another assignment of error concerning the duty, if
any, placed upon Reuben Zucker, to account to the estate for the rents and profits for use of
the homestead.
[Headnotes 2-4]
1. The right of a wife to dispose of her community interest in the home by will is
subordinate to statutory law providing for a probate homestead. In re Davis' Estate, 194 P.2d
713 (D.C.A. Cal. 1948). Consequently, her disposition by will is subject to the right of her
surviving husband and minor children to have the realty set apart as a probate homestead and
to have assigned to them all personalty exempt from execution [NRS 146.020] and the
property thus set apart is not subject to administration. Estate of David Walley, 11 Nev. 260
(1876). In re Cook's Estate, 34 Nev. 217, 236, 117 P. 27 (1911). If all children (in this case,
Bruce and Karen) are adults, then the surviving husband is entitled to a probate homestead for
his own use. In re Heywood's Estate, 84 P. 834 (Cal. 1906). In the matter at hand Bruce and
Karen each was an adult when the setting apart order was made and are not entitled to an
accounting for the reasonable rental value of the homestead, or other credits.
3

2. As already noted, the homestead was set apart from the community property of the
decedent and her surviving spouse, Reuben Zucker. NRS 146.050 appears to require that, in
such event, the homestead vests one-half in the surviving spouse, and one-half in her
devisees. On the other hand, NRS 146.060, provides that if the decedent left a surviving
spouse and no minor child, the homestead is the property of such spouse.
____________________

3
The district court apparently confused the objectives of the probate homestead law with those of the general
homestead law, and required Reuben Zucker, the surviving spouse, to pay the estate a certain sum as though the
estate was his creditor. This was error, but one to the prejudice of Reuben Zucker, from which he has not
appealed.
minor child, the homestead is the property of such spouse. These statutory provisions are
inconsistent when, as here, the decedent, by will, attempted to devise her community interest
in the home to her husband and to children of a prior marriage. We do not here attempt to
resolve that inconsistency, but mention it for possible legislative correction. The reason we do
not resolve the problem is that if the setting apart order was entered pursuant to NRS
146.050, the children, as devisees, lost their right to complain by failing to timely appeal. If
the setting apart order was pursuant to NRS 146.060 it was proper and unassailable.
3. Other assigned errors have been considered and are rejected as having no merit.
Affirmed.
____________
87 Nev. 474, 474 (1971) Walkowski v. McNally
DAVID J. WALKOWSKI, Appellant, v. CURTIS
A. McNALLY, Respondent.
No. 6453
September 28, 1971 488 P.2d 1164
Appeal from an order granting a motion for a new trial. Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Automobile passenger brought action against driver for injuries sustained in accident while
both were returning from house of prostitution. Plaintiff passenger made motion for new trial
and submitted affidavits of some of the jurors. The district court rendered an order denying
motion for new trial and striking affidavit in support of new trial, and plaintiff appealed. The
Supreme Court reversed and remanded, 85 Nev. 696, 462 P.2d 1016 (1969). The trial court
granted new trial motion on remand, and defendant driver appealed. The Supreme Court,
Batjer, J., held that where jurors failed to respond on voir dire to question whether fact that
plaintiff had shown defendant the way to a house of ill fame would prejudice jurors one way
or the other for or against the plaintiff or defendant, yet jurors' affidavits tendered by plaintiff
in connection with his motion for new trial asserted an unavowed prejudice against plaintiff
because he had shown defendant the way to the house of ill fame, proof revealed an
intentional concealment on part of the offending jurors of sufficient magnitude to support
granting of new trial.
fame, proof revealed an intentional concealment on part of the offending jurors of sufficient
magnitude to support granting of new trial.
Affirmed.
Vargas, Bartlett & Dixon, of Reno, for Appellant.
Gordon W. Rice, of Reno, for Respondent.
New Trial.
Where jurors failed to respond on voir dire to question whether fact that plaintiff had shown defendant
the way to a house of ill fame would prejudice jurors one way or the other for or against the plaintiff or
defendant, yet jurors' affidavits tendered by plaintiff in connection with his motion for new trial asserted an
avowed prejudice against plaintiff because he had shown defendant the way to the house of ill fame, proof
revealed an intentional concealment on part of the offending jurors of sufficient magnitude to support
granting of new trial.
OPINION
The only question raised by this appeal is whether the trial court abused its discretion in
granting a new trial to the plaintiff below.
The respondent, Curtis A. McNally, a passenger, was injured in a single car accident in which
the appellant, David J. Walkowski, was the driver. McNally sued Walkowski for damages.
The case was tried before a jury add a 9-3 verdict was returned for Walkowski.
One of the jurors telephoned McNally's counsel shortly after the trial and complained of
the manner in which the jury had reached its verdict. Counsel secured the juror's affidavit and
offered it, together with four other almost identical affidavits, in support of a motion for a
new trial. The trial judge refused to receive the affidavits on the ground that a juror's
statement may not be received to impeach the jury's verdict, and he denied McNally's motion
for a new trial. Vaise v. Delaval, 1 Term.Rep. 11 (K.B. 1785); Wilson v. Perkins, 82 Nev. 42,
409 P.2d 976 (1966); Kaltenborn v. Bakerink, 80 Nev. 16, 388 P.2d 572 (1964); Close v.
Flanary, 77 Nev. 87, 360 P.2d 259 (1961); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960);
State v. Lewis, 59 Nev. 262, 91 P.2d 820 (1939); Priest v. Cafferata, 57 Nev. 153, 60 P.2d
220 (1936); So.
Nev. M. Co. v. Holmes Co., 27 Nev. 107, 73 P. 759 (1903); State v. Crutchley, 19 Nev. 368,
12 P. 113 (1886); State v. Stewart, 9 Nev. 120 (1874).
McNally appealed and contended that certain jurors were not truthful when examined on
voir dire, that they intentionally concealed their bias and prejudice, and that as a result he was
denied his constitutional right to a fair trial. In McNally v. Walkowski, 85 Nev. 696, 462 P.2d
1016 (1969), we held that when it is claimed that a juror has answered falsely on voir dire
about a matter of potential bias or prejudice, affidavits of other jurors revealing such
improper conduct may be received to impeach their verdict. In that case, at 701, we said: In
the final analysis, the determination of what result should follow the failure of a juror to
answer fully a question touching upon his qualification turns upon whether or not he was
guilty of an intentional concealment. The determination of that question must be left with the
sound discretion of the trial court. . . . We conclude, therefore, that the jurors' affidavits were
admissible for the limited purpose of showing concealment of actual bias by several of the
jurors on their voir dire examination. We are merely relaxing Lord Mansfield's rule so that the
district judge may receive and consider the jurors' affidavits.
The judge of the district court, upon remand, not only received and considered the jurors'
affidavits, but allowed McNally to file a renewed motion for a new trial, and conducted an
extensive hearing into the conduct of the jurors during deliberations.
Although our remand to the trial court appeared to limit the scope of its inquiry to
receiving and considering the affidavits of the five jurors, that court had a duty to determine
the veracity of those affidavits. Furthermore, by conducting a hearing to test the reliability of
the affidavits it also afforded the accused jurors an opportunity to be heard. See State of
Nevada v. St. Clair, 16 Nev. 207 (1881).
However, the hearing revealed matters not covered in the affidavits, nor at the voir dire
examination. Upon remand, in determining whether any juror had, upon voir dire,
intentionally concealed a matter of potential bias or prejudice, the trial judge was limited to
considering the facts set forth in the jurors' affidavits as those facts were verified at the
hearing. All other matters, whether found in the affidavits or developed at the post trial
examination, should have been disregarded by the trial judge and will be disregarded by this
court in our consideration of this case.
trial judge and will be disregarded by this court in our consideration of this case.
In determining whether the trial judge abused his discretion we must examine the jurors'
affidavits as they were verified by the post trial examination and decide whether they reveal
that any juror on voir dire intentionally concealed his bias and prejudice. We believe that they
show such intentional concealment.
The record reveals that on the date of the accident the parties were returning from a visit to
a house of ill fame. The jurors were asked by counsel on voir dire: Now I believe there will
also be evidence that these young men were coming back from a house of ill repute at
Wadsworth. Is there anything, if this evidence comes before you, which might prejudice you
one way or the other for or against Mr. McNally or Mr. Walkowski? [There was no response
from any juror.]
You feel, then, that you can take this evidence and weigh it, along with all the rest, and
just the fact that they were coming back from a house of prostitution, that this would not
influence you in your deliberations, except as it is related to you by the court's instructions?
[Again no response from any juror.]
I think those are all my instructions that I have at this time, your Honor. Thank you very
much.
The jurors' affidavits tendered by McNally all asserted: Our deliberations had barely
commenced when several jurors said they believed plaintiff [McNally] was wrong in showing
defendant [Walkowski] the way to the Wadsworth house of ill fame; and that he should
therefore not be permitted to recover. One of the affidavits named two of the jurors stating
such belief. The failure to respond to the questions on voir dire indicated that none of the
jurors harbored a prejudice against McNally for showing Walkowski the way to the house of
ill fame. Yet, the affidavits tendered by McNally all asserted an avowed prejudice against him
for that reason by several jurors.
The remainder of the material found in the affidavits had no relevancy to voir dire
questioning. The statements in the affidavits, together with the verifying testimony developed
at the post trial hearing, reveal an intentional concealment on the part of the offending jurors
of sufficient magnitude to support the trial court's decision to grant a new trial.
Although the decision of the trial judge indicated that material in the affidavits and the
testimony at the post trial hearing concerning matters not covered on voir dire may have
influenced him, to some degree, in granting a new trial, the relevant material in the
affidavits as verified upon examination support his order.
concerning matters not covered on voir dire may have influenced him, to some degree, in
granting a new trial, the relevant material in the affidavits as verified upon examination
support his order. The granting of a new trial was not an abuse of discretion.
The order of the district court is affirmed.
____________
87 Nev. 478, 478 (1971) State Farm Mut. Auto. Ins. v. Hinkel
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation,
Appellant, v. DONALD EUGENE HINKEL and GORDON JOHN HINKEL, a Minor, By
and Through His Guardian Ad Litem, DONALD EUGENE HINKEL, Respondents.
No. 6433
September 28, 1971 488 P.2d 1151
Appeal from judgment of the Second Judicial District Court, Washoe County; John F.
Sexton, Judge.
Action against automobile liability insurer by insured and his minor son who was injured
when his motorcycle, insured by another company under policy without uninsured motorist
coverage, was involved in accident with uninsured motorist. The district court entered
judgment for plaintiffs and insurer appealed. The Supreme Court, Batjer, J., held that where
automobile liability policy included among the insureds, while residents of named insured's
household, his spouse and relatives of either and named insured did not reject uninsured
motorist coverage, the enumerated persons were entitled to uninsured motorist protection
without limitation and provision of uninsured motorist section excluding injury to an insured
while occupying vehicle owned by named insured or any resident of same household if
vehicle was not an insured automobile was void.
Affirmed.
Vargas, Bartlett & Dixon and Jon J. Key, of Reno, for Appellant.
Robert H. Moore, of Reno, for Respondents.
1. Insurance.
Statute providing for uninsured motorist coverage becomes part of every policy of insurance to which it is
applicable to same effect as if it were written out in full in policy itself. NRS 693.115, 693.115, subd.
1.
2. Insurance.
Insurer may limit coverage only if limitation does not contravene public policy.
3. Insurance.
Insurer may not issue automobile or motor vehicle liability policy that does not protect insured from
owners or operators of uninsured motor vehicles, unless named insured rejects such coverage. NRS
693.115, 693.115, subd. 1.
4. Insurance.
Where automobile liability policy included among the insureds, while residents of named insured's
household, his spouse and relatives of either and named insured did not reject uninsured motorist coverage,
the enumerated persons were entitled to uninsured motorist protection without limitation, provision of
uninsured motorist section excluding injury to an insured while occupying vehicle owned by named insured
or any resident of same household if vehicle was not an insured automobile was void and, named insured's
minor son, a resident of insured's household, was covered by insured's policy when injured by uninsured
motorist while driving his motorcycle insured by another company under policy not including uninsured
motorist coverage. NRS 693.115, 693.115, subd. 1.
5. Insurance.
Statute requiring uninsured motorist coverage in liability policy requires protection against peril of injury
caused by uninsured motorist to any person insured by policy. NRS 693.115, 693.115, subd. 1.
6. Insurance.
Legislative purpose in creating compulsory uninsured motorist coverage was to give needed relief to
injured parties from insurance paid for by the insured. NRS 693.115, 693.115, subd. 1.
7. Insurance.
Anyone who is a person insured within uninsured motorist statutes may not be excluded from coverage
by provisions in automobile liability policy. NRS 693.115, 693.115, subd. 1.
8. Insurance.
Object of interpretation of insurance policy is to determine intent of parties so that contract may be given
effect consistent therewith.
9. Insurance.
Determination of parties' real intent and purpose in insurance policy must be made in light of controlling
statutes.
10. Insurance.
If policy is at variance with statutory requirement, it is against public policy and void.
OPINION
The facts in this case are not in dispute. On September 12, 1968, the respondent, Gordon
John Hinkel, a minor, while operating a Honda motorcycle owned by him, was involved in an
accident with an uninsured motorist. The collision was caused by the negligence of the
uninsured motorist. The respondent, Donald Eugene Hinkel, who is Gordon's father, owned a
1963 Thunderbird automobile which had been insured by the appellant. The policy included
coverage for damage sustained as a result of an accident with an uninsured motor vehicle.
Gordon claimed that he sustained injuries caused by the negligence of the uninsured motorist,
and upon that ground he sought indemnification under his father's policy.
1

The case was tried before the district judge, sitting without a jury, and a judgment was
entered for the respondents and against the appellant for $9,848.90, plus attorney's fees and
costs. The trial judge, in making the award, held the appellant liable under the uninsured
motorist provisions of the insurance policy issued to Donald. One of those relevant provisions
is in part:
Coverage UDamages for Bodily Injury Caused by Uninsured Automobiles. To pay all
sums which the insured or his legal representative shall be legally entitled to recover as
damages from the owner or operator of an uninsured automobile because of bodily injury
sustained by the insured, caused by accident and arising out of the ownership, maintenance or
use of such uninsured automobile; . . .
Gordon, who resided in his father's home, contends that he is an insured within the
meaning of the policy. The policy includes among the insured:
(1) The first person named in the declarations and[,] while residents of his household, his
spouse and the relatives of either;.
____________________

1
The fact that on August 21, 1968, Gordon purchased a policy of liability insurance from Balboa Insurance
Company on his Honda motorcycle and expressly waived uninsured motorist coverage is irrelevant to this
appeal. If considered at all, it could be inferred that he believed he was covered under his father's policy.
State Farm concedes that Gordon is an insured under the policy's aforementioned
definition of insureds, but argues that he is precluded from recovery in this case by the
exclusionary provision of the uninsured motorist section of the policy, which states, in part:
Insuring Agreement III does not apply:
. . .
(b) to bodily injury to an insured while occupying or through being struck by a land motor
vehicle owned by the named insured or any resident of the same household, if such vehicle is
not an insured automobile;'.
The respondents argue (1) that Gordon is covered as an insured under the policy and that
he is not barred from recovery by the exclusionary provisions of the policy, and (2) that if
Gordon is so barred, then the exclusionary provision is restrictive and contrary to the policy
of the State of Nevada as announced in NRS 693.115(1), which provides: No automobile
liability or motor vehicle liability policy insuring against loss resulting from liability imposed
for bodily injury or death may be delivered or issued for delivery in this state unless coverage
is provided or supplemental to such policy for the protection of persons insured under such
policy who are legally entitled to recover damages from owners or operators of uninsured
motor vehicles. (Emphasis added.)
[Headnotes 1, 2]
NRS 693.115(1) becomes a part of every policy of insurance to which it is applicable to
the same effect as if it were written out in full in the policy itself. Hendricks v. Meritplan
Insurance Company, 22 Cal.Rptr. 682 (Ct.App. 1962). An insurance company may limit
coverage only if the limitation does not contravene public policy.
[Headnotes 3, 4]
The expressed public policy of Nevada is that an insurance company may not issue an
automobile or motor vehicle liability policy which does not protect the insured from owners
or operators of uninsured motor vehicles, unless the named insured rejects such coverage.
NRS 693.115. The named insured, Donald Hinkel, did not reject coverage. Accordingly he,
and the residents of his house, his spouse and the relatives of either, were entitled to
uninsured motorist protection without limitation. The effort by the appellant to restrict that
protection by an exclusionary provision violates the expressed public policy. It was not the
intent of the legislature to require the appellant to offer protection with one hand and then
take a part of it away with the other.
a part of it away with the other. In Travelers Indemnity Company v. Powell, 206 S.2d 244
(Fla.Ct.App. 1968), the court annulled the same exclusionary clause we are here concerned
with, noting that it was not the intention of the legislature to limit coverage to an insured by
specifying his location or the particular vehicle occupied at the time of injury. The legislative
expression of public policy denied court power to honor such a limitation.
Our statute is forthright and clearly written. It does not contain the myriad of exceptions
found in other jurisdictions. The exclusionary provisions of the policy are void and
unenforceable because they are repugnant to the intent of the statute and against public
policy. In Aetna Insurance Company v. Hurst, 83 Cal.Rptr. 156, 158 (Ct.App. 1969), that
court said: Under the unqualified language of the statute his coverage is not dependent upon
whether or not he is in any kind of vehicle. The fact that he was riding an uninsured
motorcycle thus has no bearing upon his coverage as defined by the statute.
We find the same reasoning applied to other efforts by the insurance companies to limit
uninsured motorist protection. In Butts v. State Farm Mutual Automobile Ins. Co., 207 S.2d
73 (Fla.Ct.App. 1968), the court struck down an effort to exclude the son of the named
insured. In Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir. 1969), the court
annulled an attempt to exclude automobiles owned by the city. In Hendricks v. Meritplan
Insurance Company, supra, the court would not allow the insurance company to exclude from
coverage one under 25 years of age who was operating the insured vehicle. The underlying
premise of each decision was that the attempted exclusion from coverage violated the public
policy of the statute and was, therefore void.
If we are to accept the appellant's contentions, Gordon was afforded uninsured motorist
coverage in every conceivable place on the face of this earth except upon his own motorcycle.
Nowhere in the unambiguous language of our statute do we find any authorization for that
result.
[Headnotes 5, 6]
It is clear intent of the legislature that NRS 693.115(1) requires protection against the peril
of injury caused by an uninsured motorist to a person insured. The legislative purpose in
creating compulsory uninsured motorist coverage was to give needed relief to injured parties
through insurance paid for by the insured.
[Headnote 7]
The appellant argues that public policy should not permit an owner of two or more motor
vehicles to pay for insurance on only one of them and recover compensation for his injuries
sustained while operating one of the others. This view has been accepted in some
jurisdictions. Rushing v. Allstate Insurance Company, 216 So.2d 875 (La.Ct.App. 1968);
Spencer v. Traders & General Insurance Company, 171 So.2d 723 (La. Ct.App. 1965);
Shipley v. American Standard Insurance Co. of Wisconsin, 158 N.W.2d 238 (Neb. 1968).
We, however, prefer to strictly construe our uninsured motorist statutes and hold that anyone
who is a person insured within the meaning of the statutes may not be excluded from
coverage by provisions in the policy of insurance.
In Allstate Insurance Company v. Meeks, 153 S.E.2d 222 (Va. 1967), the Supreme Court
of Virginia considered the facts in that case in the light of their statutory provisions, and held
that benefits under an uninsured motorist provision in a liability policy issued to a named
insured in one motor vehicle owned by him extended to the named insured while he was
operating another motor vehicle owned by him which was not covered in such liability policy.
Cf. Bryant v. State Farm Mutual Ins. Co., 140 S.E.2d 817 (Va. 1965).
If our legislature had intended to prevent an owner of two motor vehicles from paying for
insurance on only one and recovering benefits for his injuries sustained while operating the
other, it could have followed the lead of the legislatures in some of the other jurisdictions and
limited the coverage by providing that NRS 693.115(1) did not apply to bodily injury suffered
by the insured while occupying a motor vehicle owned by him, unless the occupied vehicle
was an insured motor vehicle. Such an amendment would be the prerogative and
responsibility of the legislature and not the function of this court. See West's Ann. Insurance
Code, 115802 as amended, 1968; Aetna Insurance Company v. Hurst, supra.
[Headnotes 8-10]
Although the object of the interpretation of an insurance policy is to determine the intent
of the parties so that the contract may be given effect consistent with the parties' real intent
and purpose (Home Indem. Co. v. Desert Palace, Inc., 86 Nev. 234, 468 P.2d 19 (1970);
Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969)), that determination
must be made in the light of the controlling statutes.
If a contract of insurance is at variance with the statutory requirement, it is against public
policy and void. Under NRS 693.115(1), without exception, every automobile or motor
vehicle liability policy is, unless the same is waived, required to provide coverage for the
persons insured under such policy against uninsured motorists. Here, Gordon Hinkel was a
person insured and any limitation upon his coverage was void. In accord: Bankes v. State
Farm Mutual Automobile Ins. Co., 264 A.2d 197 (Pa.Super.Ct. 1970); Aetna Insurance
Company v. Hurst, supra; Allstate Insurance Company v. Meeks, supra; Gulf American Fire
& Casualty Company v. McNeal, 154 S.E.2d 411 (Ga.Ct.App. 1967).
The appellant was not entirely without a remedy for, within its power and pursuant to the
statutory authority, it could predetermine who was to be a named insured. However, once a
person was included as a person insured, the insurer could not exclude him from coverage.
Zenoff, C. J., Thompson and Gunderson, JJ., concur.
I dissent.
The principal issue presented for our consideration on this appeal is whether Gordon John
Hinkel, a minor, who was injured by an uninsured motorist while riding his Honda
motorcycle, may recover in damages for those injuries under an insurance policy issued by
the appellant, State Farm Mutual Automobile Insurance Company, to Gordon's father, Donald
Eugene Hinkel.
1. The Facts.
Gordon, acting through his father as guardian ad litem, and Donald commenced this action
in the district court against State Farm to recover damages suffered by Gordon when the
Honda motorcycle that he was riding collided with a vehicle driven by an uninsured motorist.
The case was tried before the district judge, who entered judgment for the Hinkels and against
State Farm for $9,848.90 plus attorney's fees and costs. The trial judge held State Farm liable
in damages for Gordon's injuries under the uninsured motorist provisions of an insurance
policy issued to Gordon's father, Donald. Those provisions are, in relevant part:
Coverage UDamages for Bodily Injury Caused by Uninsured Automobiles. To pay all
sums which the insured or his legal representative shall be legally entitled to recover as
damages from the owner or operator of an uninsured automobile because of bodily injury
sustained by the insured, caused by accident and arising out of the ownership,
maintenance or use of such uninsured automobile; . . ."
because of bodily injury sustained by the insured, caused by accident and arising out of the
ownership, maintenance or use of such uninsured automobile; . . .
Gordon, who resided in his father's home, claims that he is an insured within the meaning
of the policy. The policy includes among the insured:
(1) the first person named in the declarations and[,] while residents of his household, his
spouse and the relatives of either;.
State Farm agrees that Gordon is an insured under the policy's definition of insureds, but
argues that he is precluded from recovery in this case by the exclusionary provision of the
uninsured motorist section of the policy, which states, in part:
Insuring Agreement III does not apply:
. . .
(b) to bodily injury to an insured while occupying or through being struck by a land motor
vehicle owned by the named insured or any resident of the same household, if such vehicle is
not an insured automobile';.
The Hinkels contend (1) that Gordon is covered as an insured under the policy and that he
is not barred from recovery by the exclusionary provisions of the policy and (2) that if
Gordon is so barred, then the exclusionary provision is restrictive and contrary to the policy
of the State of Nevada as enumerated in NRS 693.115, subsection 1, which provides:
No automobile liability or motor vehicle liability policy insuring against loss resulting
from liability imposed for bodily injury or death may be delivered or issued for delivery in
this state unless coverage is provided or supplemental to such policy for the protection of
persons insured under such policy who are legally entitled to recover damages from owners or
operators of uninsured motor vehicles.
Donald initially obtained from State Farm a policy of automobile liability insurance
covering a 1963 Thunderbird. The policy included the aforementioned uninsured motorist
coverage. Thereafter, Gordon purchased a Honda motorcycle for which he obtained an
insurance policy from Balboa Insurance Company. Although offered the uninsured motorist
coverage by Balboa, Gordon expressly waived it. At no time until the accident was State
Farm aware of the fact that Gordon had purchased the Honda or that it was insured by
Balboa.
2. The Uninsured Motorist Coverage.
In my opinion Gordon is precluded, by the exclusionary clause of the State Farm policy,
from recovery under the uninsured motorist coverage, in that the Honda motorcycle he was
riding at the time of the accident was not an "insured automobile" as that term is defined
in the policy.
was riding at the time of the accident was not an insured automobile as that term is defined
in the policy. The exclusionary clause is unambiguous, and I do not find such an exclusion so
restrictive as to be contrary to the policy of the State as announced in NRS 693.115,
subsection 1, supra.
I find nothing in the statute to require us to come to the conclusion that an insurance
companyin this case, State Farmmay not issue a policy of insurance with that uninsured
motorist coverage contemplated by the statute, designating the vehicles to be included in the
policy and thereby limiting coverage to those vehicles so named. To rule as the majority has
done means that an insured can obtain uninsured motorist coverage for a sole vehicle, then
later obtain a fleet of cars and automatically have them covered by the initial policy of
insurance. I do not think that the statute intended to go that far. The court in Spencer v.
Traders & Gen. Ins. Co., 171 So.2d 723, 726 (La.App. 1965), put the reason for the rule
rather well:
. . . The purpose which the insurer had in excluding automobiles owned by residents of
the same household from this type of coverage obviously is to protect itself against situations
where an insured could pay for one policy providing uninsured motorist coverage on one
vehicle, and then claim coverage while occupying any and all other vehicles owned by
residents of the same household, . . .
In Rushing v. Allstate Ins. Co., 216 So.2d 875, 876 (La.App. 1968), the court upheld a
similar exclusionary clause and said:
. . . Under the provisions of . . . [the uninsured motorist statute] uninsured motorists
protection is extended only to those who are insured by automobile liability insurance. When
Rushing occupied an owned motor vehicle, not insured, he was no longer protected by the
Allstate policy which covered his other car. We can see nothing in the statute which requires
an insurer to extend uninsured motorist protection under one policy to one who has elected
not to insure another vehicle owned by him, so long as he occupies that vehicle. The
exclusionary clause relied on by defendant is reasonable and not in violation of . . . [the
uninsured motorist statute]. (Emphasis added.)
In a well reasoned opinion, the court in Shipley v. American Standard Ins. Co., 158 N.W.
2d 238, 240 (Neb. 1968), ruled:
An uninsured motorist endorsement should be interpreted in light of statutory
requirements concerning coverage. The statute was designed to protect innocent victims of
negligent and financially irresponsible motorists. . . .
and financially irresponsible motorists. . . . An overriding public policy of protecting an
owner-operator who inexcusably has no applicable bodily injury liability coverage is not
presently discernible.
An insurance contract should be interpreted in accordance with reasonable expectations
of the insured at the time of the contract. . . . He [Plaintiff] might expect the uninsured
motorist endorsement to cover loss while he was operating his motorcycle, but such
expectations are unreasonable.
Finally, as the United States Court of Appeals said in Nationwide Mut. Ins. Co. v. Akers,
340 F.2d 150, 155, 156 (4th Cir. 1965):
The coverage provided by the policy is more clearly manifested by a definition of owned
automobile' which appears on the reverse of the declaration sheet. An owned automobile' is
defined as a private passenger, farm or utility automobile described in the policy.' (Emphasis
added.) This definition serves to restrict coverage in a situation like the present where all
automobiles owned by the insured are not listed on the declaration sheet. The clear import of
this language is to limit coverage of the policy to those automobiles owned by the insured and
described in the policy declarations.
. . .
. . . [C]onsequently, . . . [the insured] could own an unlimited number of cars and all
would be insured[;] yet he would be paying premiums for coverage on only two [the two
described in the policy]. Such reasoning is fallacious and would lead to a result beyond the
intent of the contracting parties. (Emphasis in original of Akers opinion.)
1

I would rule that the exclusionary clause of the uninsured motorist coverage provision is
clear and binding in this case, that it is not so restrictive as to offend the policy announced in
the related statute, and that Gordon cannot recover in damages from State Farm.
____________________

1
I agree. In my opinion the Legislature, in adopting NRS 693.115, never intended that an insured could
purchase a single policy of uninsured motorist insurance on one motor vehicle but refuse to do so on any other
vehicles that he or any resident member of his family owned then or at any subsequent time and intend that the
initial coverage of the one vehicle would extend to all vehicles then owned or later acquired by members of the
household. To so interpret the statute seems most unrealistic and unreasonable, for there would be no additional
premium required or paid for the added coverage.
____________
87 Nev. 488, 488 (1971) Kellar v. Snowden
C. L. DAGREY KELLAR, Appellant, v. JAMES L. SNOWDEN, ELIZA SNOWDEN, dba
JIMMY'S LIQUOR STORE; ROY A. WEISS, BERNARD E. CANTWELL, dba BERNIE'S
LIQUOR STORE, CITY OF LAS VEGAS, JOSEPH SAMUEL JEFFERSON and PHILLIP
L. BELL, Sr., Respondents.
No. 6269
October 5, 1971 489 P.2d 90
Appeal from an order dismissing a supplemental complaint, Eighth Judicial District Court,
Clark County; William R. Morse, Judge.
Lender filed complaint against liquor store owners claiming they had failed to repay loan,
and more than six years thereafter filed supplemental complaint against purchaser of the
liquor store and his successor in interest, alleging fraud in connection with the transfer and
violation of the Bulk Sales Act. The district court granted motion by purchaser and his
successor to dismiss, and lender appealed. The Supreme Court, Batjer, J., held that where it
was alleged in the original complaint that liquor store owners, with the intent to defraud, were
attempting to sell the business to the purchaser, it thereby appeared on the face of the
complaint that the action commenced six years thereafter against purchaser and his successor
was barred by three-year statute of limitations running from discovery of fraud, and thus bar
was not matter of affirmative defense to be pleaded and established by purchaser and his
successor; and that action based on alleged failure to comply with the Bulk Sales Act was
barred where it was not commenced within three years of uncontested date of sale.
Affirmed.
John Peter Lee and Dale W. Beasey, of Las Vegas, for Respondent.
When defense of statute of limitations appears from the complaint itself, motion to dismiss is proper.
Where it was alleged in original complaint against liquor store owners that they, with intent to defraud,
were attempting to sell business to third party, it thereby appeared on the face of the complaint that action
against the third party based on such alleged fraud, initiated by filing of supplemental complaint more than
six years after filing of original complaint, was barred by three-year statute of
limitations running from time of discovery of the alleged fraud, and thus bar of
limitations was not matter of affirmative defense to be pleaded and established by
the third party.
years after filing of original complaint, was barred by three-year statute of limitations running from time of
discovery of the alleged fraud, and thus bar of limitations was not matter of affirmative defense to be
pleaded and established by the third party. NRS 11.190, subd. 3(d).
3. Judgment.
Where motion to dismiss for failure to state claim upon which relief could be granted had been filed and
matters outside the pleading were presented to and not excluded by the trial court, the motion was properly
to be treated as motion for summary judgment. NRCP 12(b).
Where unrefuted affidavit of attorney for liquor store purchaser and his successor in interest stated that
sale of business was completed on April 4, 1963, any cause of action creditor of the sellers may have had
against the purchaser and successor because of alleged failure of purchaser to comply with the Bulk Sales
Act was barred by statute of limitations after three years from April 4, 1963. NRS 11.190, subd. 3(a),
98.010-98.050.
OPINION
On March 19, 1963, the appellant filed a complaint against James L. Snowden and Eliza
Snowden, doing business as Jimmy's Liquor Store, claiming that they had failed to repay him
a loan of $7,997.69. In that complaint the appellant also charged that the Snowdens, with the
intent to defraud, were attempting to sell the business to Roy Weiss, one of the respondents in
this appeal.
1

On March 27, 1968, after prolonged litigation, a judgment in the sum of $7,456.88 and
costs was entered in favor of the appellant and against the Snowdens. A writ of execution was
issued on February 11, 1969, and returned unsatisfied. At the time the complaint was filed,
the appellant attached the liquor store property; however, Joseph Samuel Jefferson and Phillip
L. Bell, Sr. were substituted by court order as sureties, and the attachment was dissolved.
After the writ of execution was returned unsatisfied, the sureties did not respond for the full
amount of the appellant's judgment.
____________________

1
That the Defendant, subsequent to the aforesaid agreements with Plaintiff, and without the knowledge or
assent of the Plaintiff, and with the intent to defraud the Plaintiff, are negotiating with and attempting to sell,
transfer or convey the business referred to in Plaintiff's First Claim for Relief, to a person or persons other than
the Plaintiff, to-wit: one ROY WEISS; . . .
On April 4, 1963, the Snowdens sold the liquor store business to Roy A. Weiss. Later,
Weiss sold it to Bernard E. Cantwell, one of the respondents.
On April 25, 1969, more than six years after the filing of the original complaint, the
appellant filed a supplemental complaint seeking to join as defendants the City of Las Vegas,
Roy A. Weiss, and the sureties (Jefferson and Bell). By an order entered August 8, 1969,
Judge William Compton granted the appellant's request to bring in the additional defendants.
On August 20, 1969, the appellant filed a second supplemental complaint, naming the
original defendants as well as Weiss, the City of Las Vegas, the sureties, and Cantwell, the
owner of the liquor store on that date.
On September 17, 1969, the respondents Weiss and Cantwell filed a motion to dismiss
upon the ground that the second supplemental complaint did not state a cause of action. The
points and authorities in support of the motion brought to the court's attention that more than
six years had passed since the original complaint had been filed, and alleged that the statute
of limitations had run barring action against these two defendants.
The trial court specifically found that the appellant's cause of action, based on fraud in
connection with the transfer of the liquor store premises, as well as any claim he may have
had as a result of an alleged violation of the Bulk Sales Act, were barred.
The appellant has set forth many claims of error, all unsupported by authority, but it
appears that he generally claims that the trial court erred when it found that the statute of
limitations had barred any claim he might have had against Weiss and Cantwell. He further
claims that the motion to dismiss was a void proceeding and the trial court erred when it
entertained the same.
The appellant contends that Weiss is liable as a trustee for the amount of the judgment
against the Snowdens because he failed to comply with the Bulk Sales Act.
2

In the prayer of his second supplemental complaint, the appellant made no claim against
Cantwell. He did, however, ask for a transfer to appellant of the business, the license and
physical effects, and for an injunction against all named defendants, to prevent the transfer of
the business to anyone but himself.
We have examined the pleadings and conclude that the trial court acted properly when it
entertained and granted the motion to dismiss filed by Weiss and Cantwell.
____________________

2
At the time this action was commenced on March 19, 1963, the text of the Bulk Sales Act was found in NRS
98.010-98.050.
trial court acted properly when it entertained and granted the motion to dismiss filed by Weiss
and Cantwell.
[Headnote 1]
When the defense of the statute of limitations appears from the complaint itself, a motion
to dismiss is proper. Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963); Cf.
Nevada-Douglas Co. v. Berryhill, 58 Nev. 261, 75 P.2d 992 (1938).
In Bank of Nevada v. Friedman, 82 Nev. 417, 422, 420 P.2d 1, 4 (1966), this court said:
When the complaint shows on its face that the cause of action is barred, the burden falls
upon the plaintiff to satisfy the court that the bar does not exist. In a footnote to the
preceding quote, it is stated that: When the bar of limitations does not appear from the face
of the complaint, that issue becomes a matter of affirmative defense to be pleaded and
established by the defendant.
[Headnote 2]
Here it appears on the face of the original complaint that the appellant's action, based on
the allegation of fraud against Weiss and Cantwell, is barred. He did not carry his burden of
satisfying the trial court that the bar did not exist, but instead merely argued that the bar of
limitations did not appear on the face of the complaints and was a matter of affirmative
defense to be pleaded and established by Weiss and Cantwell.
If there was indeed any fraud in connection with the sale of the liquor store business by the
Snowdens to Weiss, it is alleged in the appellant's original complaint that such fraud was
known to him before he filed it on March 19, 1963. If an action for relief on the ground of
fraud is not commenced within three years from its discovery by the aggrieved party, it is
barred. NRS 11.190(3)(d). Here the action against Weiss and Cantwell was not commenced
for more than six years.
The appellant further argues that Weiss failed to comply with the Bulk Sales Act and
therefor assumed the Snowden debt.
The trial court in its order did not expressly exclude matters outside the pleadings from
consideration (NRCP 12(b)), and ordered and adjudged that the second supplemental
complaint be dismissed.
3

[Headnote 3]
If a motion to dismiss for failure to state a claim upon which relief can be granted has
been filed, and matters outside the pleading are presented to and not excluded by the
trial court, the motion shall be treated as a motion for summary judgment.
____________________

3
It is, therefore, the order and judgment of this court that the motion to dismiss the second supplemental
complaint against Roy A. Weiss and Bernard Cantwell be, and the same is hereby granted.
relief can be granted has been filed, and matters outside the pleading are presented to and not
excluded by the trial court, the motion shall be treated as a motion for summary judgment.
NRCP 12(b); Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967).
[Headnote 4]
The unrefuted affidavit of John Peter Lee (attorney for Weiss and Cantwell) supporting the
motion to dismiss stated that the sale of the liquor store business by the Snowdens to Weiss
was completed on April 4, 1963. If the appellant ever had a cause of action against Weiss and
his successor in interest, Cantwell, because of the alleged failure of Weiss to comply with the
Bulk Sales Act, his action was barred by the statute of limitations because it was not
commenced within three years of April 4, 1963. NRS 11.190(3)(a).
4

The order and judgment of the district court is affirmed.
Zenoff C. J., Mowbray, Thompson, and Gunderson, JJ., concur.
____________________

4
NRS 11.190(3)(a) (at the time these causes of action arose): Actions other than those for the recovery of
real property unless further limited by NRS 11.205, can only be commenced as follows:
3. Within 3 years:
(a) An action upon a liability created by statute, other than a penalty or forfeiture.
____________
87 Nev. 492, 492 (1971) Howarth v. El Sobrante Mining Corp.
JAMES KENNETH HOWARTH, Appellant, v. EL SOBRANTE MINING
CORPORATION, a Nevada Corporation, WAYNE CHAMBERS, DEAN BREEZE,
and MARY J. JORGENSEN, Respondents.
No. 6351
October 5, 1971 489 P.2d 89
Appeal from order of the Eighth Judicial District Court, Clark County, denying application
for appointment of a receiver; Thomas J. O'Donnell, Judge.
Coventurer in a mining deal applied for the appointment of a receiver. From an order of
the district court denying the application the plaintiff appealed. The Supreme Court held
assignment of error as ground for reversal will not be considered absent supporting authority
unless error is so unmistakable that it reveals itself upon a review of record.
Appeal dismissed.
87 Nev. 492, 493 (1971) Howarth v. El Sobrante Mining Corp.
Peter L. Flangas, of Las Vegas, for Appellant.
Dean Breeze, of Las Vegas, for Respondents.
Appeal and Error.
Assignment of error as ground for reversal will not be considered absent supporting authority unless
error is so unmistakable that it reveals itself upon a review of record.
OPINION
Per Curiam:
James Howarth, a coventurer in a mining deal with Wayne Chambers, appeals from an
order denying his application for appointment of a receiver after their transaction had fallen
into disagreement. The disagreement arose when Chambers cancelled Howarth's stockholder
rights in a corporation they had formed. However, the asserted grounds for appeal are
completely unsupported by reference to any authorities.
Appellant's absence of faith and confidence in his lawsuit does not inspire any from us.
Assignments of error as grounds for reversal will not be considered absent supporting
authority unless error is so unmistakable that it reveals itself upon a review of the record.
Riverside Casino Corp. v. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964); Smithart v. State,
86 Nev. 925, 478 P.2d 576 (1970); Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971). No
discernible error appears in this record.
The appeal is dismissed.
____________
87 Nev. 493, 493 (1971) Lischko v. State
JOE LISCHKO, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6238
October 6, 1971 489 P.2d 89
Appeal from conviction for first degree kidnapping. Second Judicial District Court,
Washoe County; Emile J. Gezelin, Judge.
Defendant was convicted in the district court of first degree kidnapping, and he appealed.
The Supreme Court held, inter alia, that when accused is charged by indictment, list of
witnesses to be called during presentation of State's case in chief need not be supplied.
Affirmed.
Hibbs & Bullis, of Reno for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,
1. Criminal Law.
When accused is charged by indictment, list of witnesses to be called during presentation of State's case
in chief need not be supplied.
2. Criminal Law.
Where no objection was interposed with respect to evidence allegedly suggesting the perpetration of
another offense, error, if any, was waived.
3. Criminal Law.
There was no error in denying motion, made during trial, to produce statements, if any, submitted to the
prosecution by individual who was not called as witness, who was not shown to have given any statements
or evidence, and who was not shown to have possessed relevant information.
OPINION
Per Curiam:
[Headnotes 1-3]
The appellant, who was charged by indictment, stands convicted of first degree
kidnapping. He asks us to set aside his conviction for three reasons. First, because the trial
court refused his request to order the district attorney to supply him with a list of witnesses to
be called during presentation of the State's case in chief. When an accused is charged by
indictment, a list of witnesses need not be supplied. Smithart v. State, 86 Nev. 925, 478 P.2d
576 (1970); Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966). Second, because evidence
suggesting the perpetration of another offense by appellant was received. As to this, no
objection was interposed by trial counsel and the error, if any, was waived. Wilson v. State,
86 Nev. 320, 468 P.2d 346 (1970); Smithart v. State, supra. Third, because the trial court
denied his motion, made during trial, to produce statements, if any, submitted to the
prosecution by one Robed Sheridan. Sheridan was not called as a witness. Cf. Mears v. State,
83 Nev. 3, 422 P.2d 230 (1967); Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962); State v.
Bachman, 41 Nev. 197, 168 P. 733 (1917). Moreover, the record does not show that
Sheridan gave statements or evidence, or that he even possessed relevant information.
not show that Sheridan gave statements or evidence, or that he even possessed relevant
information.
Affirmed.
____________
87 Nev. 495, 495 (1971) Najarian v. Sheriff
GERALD L. NAJARIAN, Appellant, v. SHERIFF,
No. 6693
October 11, 1971 489 P.2d 405
Appeal from order denying a pre-trial petition for writ of habeas corpus. The Eighth
The district court denied the writ and petitioner appealed. The Supreme Court held that
testimony at preliminary hearing of victim of motel burglary that the subject motel room was
located in particular motel at Las Vegas was sufficient proof of venue to warrant binding
defendant over for trial.
Affirmed.
Alfred Becker, of Las Vegas, for Appellant.
Respondent.
1. Criminal Law.
There need be no positive testimony that violation occurred at specific place, and it is sufficient if it can
be concluded from evidence as a whole that act was committed at place alleged in indictment.
2. Criminal Law.
Testimony at preliminary hearing of victim of motel burglary that the subject motel room was located in
particular motel at Las Vegas was sufficient proof of venue to warrant binding defendant over for trial.
NRS 205.060.
OPINION
Per Curiam:
The appellant petitioned for a pre-trial writ of habeas corpus. He contended that there was
insufficient evidence presented at the preliminary examination to constitute probable cause to
hold him for trial, in that the prosecutor failed to elicit positive testimony to prove that
the crime charged was committed in Clark County, Nevada, as alleged in the complaint.
87 Nev. 495, 496 (1971) Najarian v. Sheriff
cause to hold him for trial, in that the prosecutor failed to elicit positive testimony to prove
that the crime charged was committed in Clark County, Nevada, as alleged in the complaint.
The district court denied the writ, and this appeal followed.
The crime charged was burglary of a motel room in Las Vegas in violation of NRS
205.060.
1
The only witness presented at the preliminary examination was the alleged victim.
Explicit testimony to set the venue was not adduced by the prosecutor. However, the witness
did testify that the subject motel room was in the Lotus Inn, which he located on Las Vegas
Boulevard, near Caesars Palace.
[Headnotes 1, 2]
We have previously held that the absence of positive proof of venue to show that the
alleged crime occurred at a specific place does not render the proceedings defective, but it is
sufficient if it can be concluded from the evidence as a whole that the act was committed at
the place alleged. . . . Dixon v. State, 83 Nev. 120, 424 P.2d 100 (1967). Applying that rule
to the testimony of the witness here, we find no error in binding the appellant over for trial,
and the order of the district could denying the writ is affirmed.
Affirmed. Issue remittitur forthwith.
____________
87 Nev. 496, 496 (1971) Czipott v. Fleigh
LORI CZIPOTT, Appellant, v. GEORGE FLEIGH
and ANN FLEIGH, Respondents.
No. 6486
October 13, 1971 489 P.2d 681
Appeal from order of the Eighth Judicial District Court, Clark County, granting a
restraining order and injunction; George F. Wright and William R. Morse, Judges.
Suit concerning domestic well located on defendants' property from which both defendants
and neighboring plaintiffs obtained their water. The district court granted preliminary
injunction prohibiting keeping of horses on defendants premises, and appeal was taken.
____________________

1
The criminal complaint recited: . . . [T]hat the said defendant on or about the 8th day of June, 1970, at and
within the County of Clark, State of Nevada, did then and there willfully, unlawfully, and feloniously enter that
certain building known as the LOTUS INN MOTEL, 1213 Las Vegas Boulevard South, Las Vegas, Clark
County, Nevada, Room No. 301 thereof, occupied by ROBERT PAUL WOODBURY, with the intent to commit
larceny.
injunction prohibiting keeping of horses on defendants premises, and appeal was taken. The
Supreme Court, Zenoff, C. J., held that evidence supported finding that presence of horses
would lead to contamination of well and further held that equitable remedy of injunction was
so far superior that legal remedy was inadequate though plaintiffs acknowledged that they
could dig another well on their own parcel for $4,000.
Affirmed.
Gordon L. Hawkins, of Las Vegas, for Appellant.
Samuel S. Anter and Peter L. Flangas, of Las Vegas, for Respondents.
1. Waters and Water Courses.
Testimony by environmental engineer with county district health department and former county
public health officer as to danger of contamination to well from horses supported finding that presence of
horses on defendants' land would lead to contamination of well from which both defendants and
neighboring plaintiffs obtained their water. NRCP 52.
2. Injunction.
Though court is reluctant to approve injunctive relief where damages may be assessed and recovered,
mere availability of legal remedy is not enough and the remedy must be adequate.
3. Injunction.
Courts favor relief which prevents wrong in preference to that which may afford redress.
In suit concerning domestic well on defendants' land from which both defendants and neighboring
plaintiffs obtained their water and stemming from defendants' desire to bring horses onto their property,
where underground water supply of area was endangered, equitable remedy of injunction was so far
superior that legal remedy was rendered inadequate though plaintiffs acknowledged that they could dig
another well on their own parcel for $4,000.
In suit concerning domestic well located on defendants' parcel from which both defendants and
neighboring plaintiffs obtained their water and stemming from defendants' desire to bring horses onto
their property where well was already in existence and had been used for many years and no doubts were
expressed as to validity of existence of well itself or of parties' right to use it, question whether original
appropriation of water from well was statutorily blessed within Nevada's water acts had no relevance.
OPINION
William and Lori Czipott became occupants of their house under a land contract in June
1970.
under a land contract in June 1970. Their neighbors, the Fleighs, respondents herein, bought
their house in 1960. This action concerns a domestic well located on the Czipott parcel, but
from which both families and their predecessors in interest obtain their water.
Their dispute stems from the Czipott's desire to bring horses onto their property. After the
Czipotts constructed a corral and brought in two horses despite the Fleighs' advance
admonition, the Fleighs sued to enjoin those acts on the fear that the horses would
contaminate the well. This appeal follows from the granting of a preliminary injunction
prohibiting the keeping of horses on the premises.
[Headnote 1]
1. The first of two basic issues is whether the evidence supports the trial court's finding
that the presence of the horses would lead to contamination of the well. As to that, of course,
we look to the record to note whether there is substantial evidence to support that finding.
Mr. Wren-Jarvis, an environmental engineer with the Clark County District Health
Department, and Dr. Karl Kaufman, former Clark County Public Health Officer, both
testified that the danger of contamination to a well from horses is very real, although they
conceded that in some instances where hard ground is involved the spoiling of the water may
not be likely. However, here, the floor around the pumphouse was cracked, there was ground
erosion surrounding the pumphouse and the corral was located 22 feet from the well. A test
showed some signs of contamination which was not present before the horses were on the
premises.
The testimony of both witnesses indicates a very real danger of contamination and for that
reason the finding of fact will not be disturbed. NRCP 52; Berryman v. Intl. Bhd. Elec.
Workers, 82 Nev. 277, 280, 416 P.2d 387 (1966).
[Headnotes 2-4]
2. Appellant further complains that the Fleighs by acknowledging that they could dig
another well on their own parcel for $4,000 had an adequate remedy at law and that therefore
the harsh remedy of injunction will not lie. Sherman v. Clark, 4 Nev. 138, 141 (1868); Conley
v. Chedic, 6 Nev. 222 (1870); Thorn v. Sweeney, 12 Nev. 251 (1877); State v. District Court,
46 Nev. 410, 211 P. 105 (1923). We relax that rule when the underground water supply of an
arid area such as that of Clark County is endangered. Although this court has been reluctant
to approve injunctive relief where damages may be assessed and recovered the mere
availability of a legal remedy is not enough.
been reluctant to approve injunctive relief where damages may be assessed and recovered the
mere availability of a legal remedy is not enough. The remedy must be adequate. 1 High on
Injunctions, 30 (1905). The courts favor relief which prevents a wrong in preference to that
which may afford redress. Belmont Quadrangle Drilling Corporation v. Galek, 244 N.Y.S.
231 (S.Ct. 1930). To destroy one's property is sometimes regarded as an irreparable injury
(Kane v. Porter, 235 P. 561 (Colo. 1925)) and the particular value of a water supply in the
desert is not only unascertainable but its preservation is necessary to the general welfare. We
accept the ruling of Thomas v. Blaisdell, 25 Nev. 223 (1899), that one's right to the use of his
property may not be divested even though he might replace that property. In this case, the
equitable remedy is so far superior that the legal remedy is rendered inadequate.
[Headnote 5]
3. Appellant also contends that the Fleighs should have been put to the burden of first
proving that the original appropriation of water from the well was statutorily blessed within
Nevada's water acts, but the point has no relevance to this dispute. The well is already in
existence and has been used for many years. No doubts were expressed as to the validity of
the existence of the well itself nor of the parties' right to use it. Other grounds of appeal were
unsupported by reference to authorities. Ellison v. State, 87 Nev. 4, 479 P.2d 461 (1971);
Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971); Smithart v. State, 86
Nev. 925, 478 P.2d 576 (1970); Riverside Casino v. J. W. Brewer Co., 80 Nev. 153, 390 P.2d
232 (1964). Furthermore, as to the deviance from the prayer for relief and the court's order,
Rule NRCP 54(c) empowers the court to grant relief warranted even though not demanded
and NRCP 54(a) extends the term judgment to any applicable order.
Affirmed.
____________
87 Nev. 500, 500 (1971) Alsup v. State
MARION THOMAS ALSUP, Appellant, v. THE
No. 6440
October 13, 1971 489 P.2d 679
Appeal from conviction of assault with a deadly weapon. Third Judicial District Court,
Lander County; John F. Sexton, Judge.
Defendant was convicted in the district court of assault with a deadly weapon and he
appealed. The Supreme Court, Zenoff, C. J., held that evidence that defendant was seen to
throw something after altercation with victim and that person who saw the throwing gesture
found blood-stained knife 130 feet from the place of the fight and that defendant's fingerprint
was on the knife was sufficient to connect the knife with the crime and knife was properly
admitted into evidence.
Affirmed.
George G. Holden, of Battle Mountain, for Appellant.
Robert List, Attorney General, and T. David Horton, District Attorney, Lander County, for
Respondent.
1. Criminal Law.
Evidence that defendant was seen to throw something after altercation with victim and that person who
saw the throwing gesture found blood-stained knife 130 feet from the place of the fight and that defendant's
fingerprint was on the knife was sufficient to connect the knife with crime of assault with a deadly weapon
and knife was properly admitted into evidence. NRS 200.400, subd. 2.
2. Criminal Law.
Photographs of wounds incurred by victim during assault with deadly weapon by defendant were
admissible even though there was testimony and demonstration by victim of his scars and wounds.
3. Criminal Law.
Photographic evidence is generally liberally admitted so long as it sheds light upon some material
inquiry.
OPINION
Marion Thomas Alsup was convicted by a jury of assault with a deadly weapon. He had
originally been charged with attempted murder, mayhem and assault with intent to kill. The
conviction arose from a fight with Jack Noble outside a small bar at Battle Mountain.
87 Nev. 500, 501 (1971) Alsup v. State
conviction arose from a fight with Jack Noble outside a small bar at Battle Mountain. The
testimony of several witnesses clearly established that Alsup had verbally and foully abused
Noble over an extended period of time in the morning of March 16, 1969 and taunted him to
fight. Noble made no response until the bartender asked Alsup to leave. When Alsup stuck
his head through the doorway and again challenged Noble, Noble asked the bartender if he
had taken enough, and the bartender said, Yes.
Then, Noble followed Alsup outside, the door was closed and no other persons were
present when they commenced to fight. Noble testified that shortly after their combat
commenced he felt pain in his back and side and noticed that he was very bloody. Alsup had
been holding his right hand behind his knee, but Noble did not actually see a knife then or at
any other time.
One of the bartenders glancing out the window saw Alsup throw something as Noble
started to run away. Later, the same bartender who saw the throwing gesture found a
blood-stained knife 130 feet from the place of the fight. The blood could not be identified but
a fingerprint on the knife was positively identified as Alsup's.
By way of defense Alsup claimed self-defense and that he had no recollection of cutting up
Noble.
The issues on appeal are:
1. Whether the knife was improperly admitted into evidence because it is alleged that the
state failed to show beyond a reasonable doubt a link between the knife and the crime.
2. Whether color photographs of the victim's wounds were improperly admitted where
there was testimony and demonstration by Noble of his scars and the wounds.
3. Whether the evidence supports the verdict.
[Headnote 1]
1. Alsup objected to the admission of the knife into evidence on the ground that it was not
properly connected with the crime. The accumulated testimony of eyewitnesses establishes
that Noble suffered wounds from a sharp instrument, that something was thrown by Alsup
after the fight, that the knife was found in the area where the thrown object would be, blood
was on the knife and also Alsup's fingerprints were on the knife. Evidence of the throwing of
the object coupled with the finding of it will support an inference in these circumstances that
the accused had possession of the object thrown. When the evidence on the part of the
prosecution is circumstantial an implement by means of which it is likely that a crime was
committed is admissible in evidence if it has been connected with the defendant.
87 Nev. 500, 502 (1971) Alsup v. State
committed is admissible in evidence if it has been connected with the defendant. People v.
Howard, 10 Cal.App.2d 258 (1935); People v. McCall, 10 Cal.App.2d 503, 505 (1935);
Stamps v. State, 83 Nev. 230, 428 P.2d 187 (1967).
[Headnotes 2, 3]
2. We can find no arguable issue in regard to the admission of the color photographs.
They were merely cumulative since Noble exhibited the stitched wounds before the jury, but
no blood or gore destroyed their objectivity. Photographic evidence is generally liberally
admitted (Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968); Morford v. State, 80 Nev. 438,
395 P.2d 861 (1964); State v. Gambetta, 66 Nev. 317, 208 P.2d 1059 (1949)), so long as the
photograph sheds light upon some material inquiry.
3. The question whether the evidence supports the verdict is resolved by reference to the
testimony of all of the witnesses. Alsup was the aggressor throughout. He is not exempt from
the limitation of NRS 200.400(2)
1
that provides, where no considerable provocation
appears, because the evidence shows immense provocation on his part. Many witnesses,
other than even Noble, established Alsup as the instigator of the fight and nothing appears
that he was getting the worst of the fight to such extent that deadly force was justified. The
factual assertions reveal that the jury chose to believe the many witnesses as against the weak
testimony of Alsup. The verdict is amply supported. It is well-established that weighing the
evidence is a jury function and when it is found that substantial evidence exists to uphold its
verdict as there is here, this court will decline to disturb its judgment. Singleton v. State, 85
Nev. 819, 477 P.2d 591 (1970).
Affirmed.
____________________

1
NRS 200.400(2): An assault with a deadly weapon, instrument or other thing, with an intent to inflict upon
the person of another a bodily injury, where no considerable provocation appears, or where the circumstances
of assault show an abandoned and malignant heart, shall subject the offender to imprisonment in the state
prison not less than 1 year nor more than 6 years, or to a fine of not more than $5,000, or to both fine and
imprisonment.
____________
87 Nev. 503, 503 (1971) Lowrance v. Lowrance
JEANNE MARIE LOWRANCE, Appellant, v. BILLY
JOE LOWRANCE, Respondent.
No. 6346
October 14, 1971 489 P.2d 676
Appeal from an order denying a motion to set aside a judgment and decree of divorce,
First Judicial District Court, Churchill County; Richard L. Waters, Jr., Judge.
The district court denied the motion and movant appealed. The Supreme Court,
Gunderson, J., held that fact that former wife remarried after entry of default divorce decree
by terms of which she was deprived of her parental and property rights did not preclude her
obtaining relief from such provisions.
Batjer, J., dissented.
Halley & Halley, Vargas, Bartlett & Dixon, and Steven T. Walther, of Reno, for Appellant.
Diehl, Recanzone & Evans, of Fallon, for Respondent.
1. Divorce.
Former wife's three months' delay in seeking relief from default divorce decree which awarded former
husband all community property and custody of minor children did not preclude relief where wife was not a
legally sophisticated person, was living with former husband at time decree was entered and was without
funds. NRCP 60(b).
2. Divorce.
Fact that former wife remarried after entry of default divorce decree by terms of which she was deprived
of her parental and property rights did not preclude her obtaining relief from such provisions.
OPINION
The record shows that after summons and a complaint for divorce were served on the
appellant wife, the respondent husband received her back into the marital home, and when
asked what he intended to do about his action against her, said merely: You will find out in
time. After having marital relations with her the night of November 17, 1969, respondent
obtained a default decree of divorce on November 18, awarding him all the parties'
community property, and custody of their minor children, who were 9, 7 and 3 years of age.
of their minor children, who were 9, 7 and 3 years of age. Respondent returned home early in
the morning November 19, went to bed and had marital relations with appellant, then told her
when they arose: The divorce decree is now final. He thereupon ordered her from the
marital home, with her three other minor children from a prior marriage. While it appears she
did not consult an attorney concerning the matter for some three months thereafter, it also
clearly appears she is not a legally sophisticated person, and her uncontroverted testimony
shows she was totally without any funds to employ counsel when respondent apprised her of
his actions. When she ultimately sought advice, her present counsel undertook to represent
her without a retainer, and brought a motion to set aside the decree on grounds of surprise and
excusable neglect. The lower court denied this motion in its entirety.
Unquestionably, the record establishes meritorious grounds to set aside the decree, as
stated in appellant's motion. NRCP 60(b); Cipolla v. Cipolla, 85 Nev. 43, 449 P.2d 258
(1969). While respondent's counsel have made no serious attempt to question this, they
suggest relief is precluded by her delay in moving for relief, and by her remarriage while her
motion was pending.
1

[Headnotes 1, 2]
Concerning the delay, to find laches, estoppel or waiver a bar would, we think, in
the circumstances of this case, reduce the judicial process to a mockery. Cipolla v. Cipolla,
85 Nev. 43, 44, 449 P.2d 258, 259 (1969). As to her remarriage, it is apparent to us that
appellant accepted no benefits from those portions of the decree that deprived her of her
parental and property rights; thus, we perceive no reason why her remarriage should bar her
from obtaining relief insofar as the decree operated against those rights. Cf. Lopez v. Lopez,
40S P.2d 744 {Cal.
____________________

1
At oral argument, respondent's counsel was questioned as follows:
Court: . . . [A]t least, Mr. Diehl, by the record before us, which is to say the same record as was before the
lower court, the facts would substantially be as stated by Mr. Halley, would they not?
Respondent's Counsel: Yes, we presented no evidence in opposition to those facts, which we could have
done but did not do so because of the remarriage and these facts that came to light at this time.
Court: Well, now, that being the case, it would appear that there was not only excusable neglect but was in
fact fraud on the lower court, isn't that true?
Respondent's Counsel: Again, on the record, yes, I would say if we accept all the facts as true, this may be
the case.
408 P.2d 744 (Cal. 1966); Siler v. Siler, 350 P.2d 510 (Okl. 1960); 2A Nelson on Divorce
and Annulment, 20.11 (2nd Ed. 1961).
The court erred in not setting aside those portions of the decree of divorce concerning the
parties' property and custody rights. In these regards, the court's order denying appellant's
motion is reversed.
The cause is remanded, with instructions to determine appellant's application for
preliminary attorney's fees, and to decide, as matters of first impression, the distribution of
the parties' property and the custody of their minor children.
Zenoff, C. J., Mowbray and Thompson, JJ., concur.
Batjer, J.:
I respectfully dissent.
In February of 1970, for the first time since October 20, 1969, when she had been
personally served with process, the appellant contacted an attorney for the purpose of
ascertaining her rights to visit the children. On March 18, 1970, the appellant filed a motion
to set aside and declare null and void the findings of fact, conclusions of law and judgment
and decree of divorce entered by the district court, and on March 28, 1970, she married Larry
Jarrett. On April 21, 1970, the trial court heard and denied her motion.
At the commencement of the hearing on the motion, the appellant, having remarried,
conceded incompatibility and moved to set aside only that part of the judgment and decree of
divorce awarding the care, custody and control of the minor children to the respondent. She
advocated divisibility of the judgment into its marriage dissolution, custody and property
segments, and cited Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957), and cases that rely on that
authority. The respondent contended that by reason of her remarriage the appellant was
estopped in any manner to attack the judgment and decree. The trial judge refused to entertain
the appellant's motion to amend and proceeded to hear the matter on the original motion.
1
A
full opportunity was afforded the appellant to testify and introduce evidence to support her
contention that within the relief afforded by NRCP 60(b), the default judgment and decree
entered against her should be set aside upon the grounds of surprise and excusable neglect.
____________________

1
The Court: . . . I will hear this matter as it was originally set up, as a proceeding to set aside the default and
vacate the decree as a whole. I am not going to hear it on any theory of divisibility. I will hear the whole matter
or I will hear none of it.
the grounds of surprise and excusable neglect. After the hearing the trial judge merely denied
the appellant's motion.
2

From the record it is clear that the trial court had sufficient reason to deny the appellant's
motion. She simply did not show either surprise or excusable neglect. Waiting some four
months after service of process to consult an attorney and then only to inquire about visitation
rights could have been properly viewed by the trial court as unexcusable. A court has wide
discretion in determining what neglect is excusable and what is inexcusable. Cicerchia v.
Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961).
Likewise, her claim of surprise is not so strongly supported in the record to require the trial
court to set aside the judgment and decree as a matter of law. When the respondent told her
that she would find out about the divorce proceedings in time she failed to heed the
warning. The fact that the appellant and respondent slept together and had sexual intercourse
on one occasion after separation and before the divorce does not support a claim of either
surprise or excusable neglect. Cf. Ramsay v. Ramsay, 69 Nev. 176, 244 P.2d 381 (1952),
where this court held that condonation should not be implied in law in divorce actions unless
the acts of the parties clearly establish reconciliation or forgiveness, and that a single act of
intercourse after separation does not establish reconciliation which would amount to
condonation, unless the grounds for divorce had been adultery.
Although we favor adjudication of cases upon their merits, (see cases collected and
discussed in Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968)), the trial judge is free to
judiciously and reasonably exercise discretion in determining whether a default judgment
should be set aside.
In Minton v. Roliff, 86 Nev. 478, 480, 471 P.2d 209, 210 (1970), this court said: We have
repeatedly held that a trial court's exercise of discretion in granting or denying a motion to set
aside a default judgment will not be disturbed on appeal absent an abuse of discretion. E.g.,
Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); Hotel Last Frontier Corp. v. Frontier
Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963); Blakeney v. Fremont Hotel, Inc., 77 Nev.
191, 360 P.2d 1039 (1961).
In Lentz v. Boles, supra, at 200, it was said: We wish not to be understood, however, that
this judicial tendency to grant relief from a default judgment implies that the trial court
should always grant relief from a default judgment.
____________________

2
The Court: Now, I am not going to say anything about estoppel or clean hands or the pot calling the kettle
black or anything else. I am just going to deny the motion.
relief from a default judgment implies that the trial court 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, may very well warrant a denial of the motion for relief from the
judgment. Here the appellant disregarded process and procedural rules and exhibited a lack
of diligence. She failed to carry her burden of showing either surprise or excusable neglect.
The burden of proof on such a motion is on the moving party who must establish his
position by a preponderance of the evidence. Luz v. Lopes, 358 P.2d 289, 294 (Cal. 1960).
The trial court's denial of the appellant's motion, whether applied to the entire judgment
and decree or to a part of it, is amply supported in the record.
Even though a district court may be in error in its reasons given for judgment, (here there
were none stated) if the judgment is correct upon any theory it is the duty of the appellate
court to affirm because the latter is not required to approve the mental process of the trial
court. Nelson v. Sierra Constr. Corp., 77 Nev. 334, 364 P.2d 402 (1961); Goldsworthy v.
Johnson, 45 Nev. 355, 204 P. 505 (1922).
The appellant would not be without a remedy because the trial court retains continuing
jurisdiction of all matters relating to the care, custody, control, education, maintenance and
support of the minor children. Relief may be sought under NRS 125.140(2) and NRS
125.230.
3

I would affirm the order of the district court.
____________________

3
NRS 125.140(2): In actions for divorce the court may, during the pendency of the action, or at the final
hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for
the custody, care, education, maintenance and support of such minor children as may seem necessary or proper,
and may at any time modify or vacate the same.
NRS 125.230: The court in such actions may make such preliminary and final orders as it may deem proper
for the custody, control and support of any minor child or children of the parties.
____________
87 Nev. 508, 508 (1971) Cathey v. State
JAMES E. CATHEY, Appellant, v. STATE
No. 6059
October 22, 1971 489 P.2d 681
Appeal from a conviction for first degree burglary, Eighth Judicial District Court, Clark
Reversed.
Chief Deputy District Attorney for Appeals, Clark County, for Respondent.
OPINION
Per Curiam:
Cathey stands convicted of first degree burglary. His appeal challenges the sufficiency of
the evidence to support the jury's verdict, and other matters. During oral argument on appeal
the prosecutor acknowledged that the evidence presented at trial did not connect the accused
with the offense charged. Our independent review of the record leads us to the same
conclusion. Indeed, the evidence supposedly pointing to the guilt of the accused is as lacking
in probative force as that condemned by this court in Ex parte Hutchinson, 76 Nev. 478, 357
P.2d 589 (1960), wherein we ruled the evidence there offered to be insufficient to show
probable cause to hold the accused for trial.
Reversed, and James E. Cathey shall be released from custody forthwith.
____________
87 Nev. 508, 508 (1971) In re Farris
In the Matter of the Petition of MICHAEL C. FARRIS for Review of Application for
Admission to the State Bar of Nevada.
No. 6637
October 26, 1971 489 P.2d 1156
Petition for admission to the State Bar of Nevada, seeking review of recommendation of
Board of Bar Examiners.
87 Nev. 508, 509 (1971) In re Farris
The Supreme Court held that in light of testimony of three district judges manifesting
confidence in petitioner, petitioner's acknowledgment that he erred in falsely stating in his
first application for admission to the Bar that he was a resident of the state and in omitting to
mention certain convictions for traffic offenses outside the state, and his subsequent
demonstration that he was capable and willing to conform with the ethical standards of the
profession, petitioner would be admitted to the Bar.
Petition for admission to the Bar granted.
Laxalt, Berry & Allison, of Carson City, for Petitioner.
Joseph P. Reynolds, of Reno, for Respondent.
Attorney and Client.
In light of testimony of three district judges manifesting confidence in petitioner, petitioner's
acknowledgment that he erred in falsely stating in his first application for admission to the Bar that he
was a resident of the state and in omitting to mention certain convictions for traffic offenses outside the
state, and his subsequent demonstration that he was capable and willing to conform with the ethical
standards of the profession, petitioner would be admitted to the Bar.
OPINION
Per Curiam:
Petitioner Michael C. Farris heretofore sat for and passed the 1970 bar examination;
however, we deferred his admission to the State Bar of Nevada pending further investigation
of his moral fitness. Now, our bar examiners having completed their supplemental report, we
must decide if Farris has demonstrated that he is of good moral character and that he is
willing and able to abide by the high ethical standards required of attorneys and counselors at
law. SCR 51(7). Upon careful review of the record, we believe he has done so.
The young petitioner, although lacking parental guidance and steady purpose, nonetheless
pursued pre-law studies at a California college while supporting himself dealing in Nevada
casinos. Continuing to deal casino games summers at Lake Tahoe, he attended night law
school at the University of Tulsa, aided by his wife, a former casino change girl who is now a
school teacher. While attending law school, he worked as law librarian and assistant to the
torts professor. Various faculty members have attested his conduct and demonstrated
character were good.
87 Nev. 508, 510 (1971) In re Farris
were good. Upon receipt of his Juris Doctor degree in the spring of 1968, he manifested
interest in taking our Bar that year; however, he was a few days too late to establish the
requisite six-months residency, and secured employment as a research assistant with the
California Attorney General in Sacramento, where his wife became employed by the public
school system.
Petitioner's past reveals one occurrence, or series of related occurrences, that casts doubt
on his character. In his first application for admission to the State Bar of Nevada, filed in
1969, petitioner falsely stated that he was residing in Nevada. (He also omitted to mention
certain convictions for traffic offenses in California.) Under inquiry before the local
administrative committee, he first adhered to his false statements concerning his residency;
however, he voluntarily returned before them, acknowledged the truth, and withdrew his
application for that year. Then, having come to Reno approximately a month before, he
remained and obtained employment as a law clerk to Judge Bowen, one of the senior trial
judges of this state. He thus demonstrated enough purpose, enough dedication to his ambition
to practice law in Nevada, and enough character, to face his mistake and subject himself to
scrutiny.
In addition to Judge Bowen, another district judge, a member of our Board of Bar
Governors, and others with capacity to make a meaningful judgment on the subject, have
attested they believe him fit, after observing him since he came to Reno more than two years
ago. Life presents few better opportunities to assess a prospective lawyer's professional
dedication and purpose than that given a judge to evaluate his clerk. Judge Bowen, who thus
knows petitioner well, and who would not injure the law to favor any man, has testified that
during the 15 months petitioner worked with him, petitioner was honest and forthright at all
times. (Upon leaving his employment with Judge Bowen, petitioner performed legal research
for private practitioners; then Judge Craven requested petitioner to become his clerk. Thus,
three district judges who know him have manifested confidence in him.)
The Board of Bar Examiners concede petitioner's showing is impressive; they concede the
views of his witnesses are entitled to great weight; still, the Board opposes his admission to
practice because they deem his showing of two years' uninterrupted rectitude too limited in
scope. This contention would be persuasive, had the Board recommended that petitioner's
application merely be longer deferred, to provide further opportunity for evaluation of his
willingness to conform with proper ethical standards.
87 Nev. 508, 511 (1971) In re Farris
standards. However, the Board's counsel concedes the Board of Bar Examiners intended a
categorical denial of his application, foreclosing his reapplication in Nevada (SCR 67), and
elsewhere. Although we respect the Board and its judgment, on the record before us we are
unwilling to foreclose petitioner forever from the practice of law.
While the court cannot condone petitioner's conduct, its members know something of the
human situations of life. We can perceive how a young man, without fully appreciating the
magnitude of the matter, might first misstate his residency on a bar application through want
of fully matured judgment, and then perpetuate his misstatement through fear. Such lapses
have occurred among saints and senators.
What, then, shall we do with a young man who has erred in this fashion, who has
acknowledged his error, but who nonetheless has demonstrated his apparent capacity and
willingness to conform with the ethical standards of our profession? On this issue, obviously,
reasonable and high-minded men can and do differ; still, the duty to reconcile society's
competing demands for high professional standards, and for temperate treatment of youthful
irresponsibility, lies with this court.
We cannot, of course, know conclusively that petitioner's ordeal of the last two years has
been sufficient to stay him from like conduct in the future. We cannot know, nor can he
prove, that he has matured as much as the record before us would make it appear. We do
believe, however, the evidence more than preponderates in his favor, and that, in the light of
all material considerations, we should permit petitioner an opportunity to practice the
profession for which he has prepared himself during the past six years.
It is therefore the decision and order of the court that petitioner will be admitted to the
State Bar of Nevada on or after November 12, 1971, the date on which this court will
administer the oath of office to other applicants who pass the 1971 bar examination.
____________
87 Nev. 512, 512 (1971) Goldstein v. Pavlikowski
STUART M. GOLDSTEIN, Petitioner, v. JOSEPH S. PAVLIKOWSKI, Judge of the Eighth
Judicial District Court of the State of Nevada in and for the County of Clark, and THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR
THE COUNTY OF CLARK, Respondents.
No. 6690
October 26, 1971 489 P.2d 1159
Original Proceedings in Prohibition against Joseph S. Pavlikowski, District Judge, and the
Eighth Judicial District Court of the State of Nevada In and For the County of Clark.
The Supreme Court, Zenoff, C. J., held that defendant charged with capital offense did not
have constitutional right to waive jury trial and to compel trial by judge.
Denied.
Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Petitioner.
Chief Deputy District Attorney, Clark County, for Respondents.
1. Jury.
What evidence might or could be presented at trial would not be considered in determining question of
defendant's right to waive jury and be tried by judge. NRS 174.045, subd. 1, 174.065, 175.011.
2. Jury.
Defendant charged with capital offense did not have constitutional right to waive jury trial and to compel
trial by judge. NRS 174.045, subd. 1, 174.065, 175.011; U.S.C.A.Const. art. 3, 2, cl. 3; Amend. 6;
Const. art. 1, 3; art. 6, 6.
Distinction permitting waiver of jury trial and trial by judge in noncapital offenses while prohibiting such
waiver in capital offenses did not invidiously discriminate against defendant charged with capital offense.
NRS 174.045, subd. 1, 174.065, 175.011; U.S.C.A. Const. art. 3, 2, cl. 3; Amend. 6; Const. art. 1,
3; art. 6, 6.
4. Criminal Law.
Where defendant charged with capital offense had no constitutional right to waive jury and be tried by
judge, circumstance that in order to have court determine degree of offense and sentence defendant had to
plead guilty did not constitute invalid chilling effect on defendant's Fifth Amendment right against
self-incrimination. NRS 174.045, 174.065; U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Where statute required jury trial on every not guilty plea, provision requiring prosecutor's consent to
guilty plea did not improperly invade province of court. NRS 175.011.
OPINION
These are original proceedings in prohibition to prevent respondent judge from conducting
a jury trial despite petitioner both having waived a jury trial and having made demand for trial
to the court. Respondent concedes that the court's examination of the question by
extraordinary writ at this time is proper. Bell v. District Court, 28 Nev. 280, 81 P. 875 (1905);
Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964); Buckingham v. District Court, 60 Nev.
129, 102 P.2d 632 (1940).
Charged with murder, Stuart M. Goldstein entered alternative pleas of not guilty and not
guilty by reason of insanity. He filed a motion for trial by the court and executed a written
waiver of his right to a jury trial. In support of the motion he urges: first, that the Nevada
Revised Statutes (NRS 175.011,
1
NRS 174.045(1)
2
and NRS 174.065
3
) compel an
accused, who desires the avoidance of a trial by jury, to plead guilty; and secondly, that
compelling a trial by jury against his will unconstitutionally deprives him of a fair and
impartial trial.
____________________

1
175.011 Trial by jury.
1. In a district court, cases required to be tried by jury shall be so tried unless the defendant waives a jury
trial in writing with the approval of the court and the consent of the state. A defendant who pleads not guilty to
the charge of a capital offense must be tried by jury.
2. In a justice's court, a case shall be tried by jury only if the defendant so demands in writing not less than 5
days prior to trial. Where a case is tried by jury, a reporter must be present who is an official reporter for a
district court of this state, and shall report the trial.

2
174.045 Proceedings on plea of guilty to capital offense.
1. When any person is convicted upon a plea of guilty of an offense punishable by death, except as provided
in NRS 174.065, the supreme court shall appoint two district judges from judicial districts other than the district
in which the plea is made, who shall with the district judge before whom such plea is made, or his successor in
office, by examination of witnesses determine the degree or facts of the offense and give sentence accordingly. A
sentence of death may be given only by unanimous vote of the three judges, but any other sentence may be given
by the vote of a majority.

3
174.065 When plea of guilty may specify the degree or punishment.
1. On a plea of guilty of an information or indictment accusing a defendant of a crime divided into degrees,
when consented to by the district attorney in open court and approved by the court, the plea may
and secondly, that compelling a trial by jury against his will unconstitutionally deprives him
of a fair and impartial trial. Impartiality is deprived, he asserts, in that his case has achieved
widespread notoriety. Fairness is denied, he asserts, because his insanity defense is so
difficult and so comprehensive that a jury could not grasp it. He adds that NRS 175.011 and
174.065 constitute impermissible legislative interference with judicial discretion in the
methods of conducting trials and that these two sections vest the district attorney with power
to reject arbitrarily a defendant's guilty plea and to compel a defendant to undergo a jury trial.
[Headnote 1]
1. The question whether an accused has a constitutional right to waive a jury trial and to
compel a trial by a judge was answered negatively in Singer v. United States, 380 U.S. 24
(1965), and in our case of Rains v. State, 83 Nev. 58, 422 P.2d 541 (1967). In Nevada, NRS
175.011 specifically provides that an accused who pleads not guilty to the charge of a capital
offense must be tried by a jury. Both Singer, supra, and Rains, supra, established that neither
the common law nor the constitution confers an absolute right to waive a trial by jury absent
the approval of the court and the consent of the state; his only constitutional right concerning
the trial method is that there be an impartial trial by jury. See also Patton v. United States,
281 U.S. 276 (1930); Singer, supra, at 36; Annot., 51 A.L.R.2d 1346 (1957). Goldstein,
however, points to the language of Singer, supra, at 37, as providing for an exception, to wit:
We need not determine in this case whether there might be some circumstances where a
defendant's reasons for wanting to be tried by a judge alone are so compelling that the
government's insistence on trial by jury would result in the denial to a defendant of an
impartial trial. The petitioner describes the brutal crime, states his long history of mental
illness and refers to the complexity of an insanity defense (Fox v. State, 73 Nev. 241, 316
P.2d 924 (1957)), as evidencing the unlikelihood that a fair jury trial protecting his due
process rights will be received. However, the presentation of what the evidence might or
could be at the trial is premature and will not be considered.
____________________
specify the degree, and in such event the defendant shall not be punished for a higher degree than that specified
in the plea.
2. On a plea of guilty to an indictment or information for an offense punishable by death, when consented to
by the district attorney in open court and approved by the court, the plea may specify a punishment less than
death. The specified punishment, or any lesser punishment, may be imposed by a single judge.
of what the evidence might or could be at the trial is premature and will not be considered.
[Headnote 2]
There is no right to waive trial by jury in a capital case. Simply stated, the legislature has
not provided such a right. Having failed so to do we must abide by it, for to interpret such a
provision into the statute would constitute judicial legislating. Furthermore, the statement of
facts concerning the horrors of the crime cannot be applied by us as the measure allowing
waiver if that be the meaning of the above-quoted language of Singer, because it is unknown
at this stage of the proceedings what evidence will be presented to the jury or the court until
trial takes place. Note, 38 Texas L.Rev. 928 (1960); Oppenheim, Waiver of Trial by Jury in
Criminal Cases, 25 Mich.L.Rev. 695, 697 (1927); Griswold, The Historical Development of
Waiver of Jury Trial in Criminal Cases, 20 Va.L.Rev. 655 (1934).
An extensive review of the trial-by-jury topic in early American courts would be repetitive
but apparently there were two views about the so-called right to jury trial; one, that the jury
trial is a device to protect not only the defendant's interest but also that of the society, and
second, that any power of waiver of trial by jury must be founded on constitutional or
statutory authority. Cancemi v. The People, 18 N.Y. 128, 7 Abb.Pr. 271 302-3 (1858). In
other cases, and also in Cancemi, supra, the courts based their conclusions on the absence of
affirmative statutory or constitutional authority for nonjury trial. Harris v. People, 21 N.E.
563 (Ill. 1889), held that a trial must be by the tribunal, and in the mode, provided by the
constitution and laws. Oppenheim, supra, 724, et seq., Annot., Right to Waive Trial by Jury
in Criminal Cases, supra; and effect of waiver upon jurisdiction of the court to proceed
without a jury, Annot., 48 A.L.R. 767 (1927).
Examining the Sixth Amendment and Article III, Section 2, Clause 3, the Federal
constitutional guarantees of trial by jury, the authorities conclude that The trial of all crimes .
. . shall be by jury . . . is a constitutional mandate that is not, however, jurisdictional.
Congress possessed the power to enact legislation permitting the trial of a case without a jury
and Congress did so in 24 of the Judicial Code. Transposing the problem from the Federal
Constitution to our own home grounds Art. I, 3, Art. VI, 6 of the Nevada Constitution and
NRS 175.011(1)
4
give the Nevada courts jurisdiction of criminal cases but make no
allowance for a trial solely before the court in capital cases.
____________________

4
See Footnote 1, supra.
criminal cases but make no allowance for a trial solely before the court in capital cases.
Therefore, the trial court here could neither permit Goldstein's waiver of jury trial nor allow
the bench trial because it had no jurisdiction to conduct a trial without a jury, this being a
capital case.
[Headnote 3]
2. Petitioner protests that Nevada's statutes on waiver of jury trial are constitutionally
infirm because they deprive petitioner of equal protection of the laws, coerce
self-incrimination and infringe and usurp the powers of the judiciary. The first objection rests
on the assumption, which we have rejected, that there is a constitutional right to waive trial by
jury. The next objection is that the distinction between capital and noncapital offenses is
impermissible. Distinctions between classes are constitutionally improper only if the basic
distinction between the classes is unsupportable. That is not so here. It must be recognized
that the burden upon a judge in a capital case is very heavy, perhaps too heavy to bear alone,
and, also, as Oppenheim, supra, concludes, the decisions on possible changes in this area
must be left to the legislature. We recognized in Rains, supra, that society has a legitimate
interest in seeing cases, wherein a grievous wrong has been committed, tried before the
tribunal selected by such society as most likely to produce a fair result. In capital offenses,
considerations of possibly severe penalty and operational efficiency may be outweighed by
the desire to have 12 consciences judging instead of one and to spread the load over several
individuals. The distinction between capital and noncapital offenses is reasonable and does
not invidiously discriminate against Goldstein.
[Headnote 4]
He also asserts that his Fifth Amendment right against self-incrimination is violated in that
NRS 174.045 and NRS 174.065 allow court determination of degree and sentence only if he
pleads guilty. But he places faulty reliance upon United States v. Jackson, 390 U.S. 570
(1968), and Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968). The Court said in Jackson,
supra, at 582: Whatever may be said of Congress' objectives, they cannot be pursued by
means that needlessly chill the exercise of basic constitutional rights. No basic constitutional
right is chilled in this case. There is no chilling dilemma here because he has no right to a
nonjury trial, which is entirely distinct from Jackson and Spillers where the undoubted right
to choose trial by jury was chilled.
[Headnote 5]
3. Goldstein's final contention is that NRS 175.011, requiring the prosecutor's consent to a
guilty plea, improperly invades the province of the court. NRS 175.011 gives the prosecutor
no discretion in this case. It mandates a jury trial on every not-guilty plea.
Petition denied.
____________
87 Nev. 517, 517 (1971) Roy v. State
RICHARD CHARLES ROY, Appellant, v. THE
No. 6345
November 2, 1971 489 P.2d 1158
Appeal from judgment of conviction and sentence of the Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of selling marijuana, and he appealed. The
Supreme Court, Gunderson, J., held that defendant, who purchased lid of marijuana for
undercover police officer who pretended interest in him and friendship for him, and who did
not act on his own behalf or for the supplier but solely for the recipient, could not be found
guilty of being a seller of marijuana.
Judgment reversed; appellant discharged; bond exonerated.
Respondent.
1. Criminal Law.
Criminality of one person's acts cannot rationally depend on whether the State decides to prosecute
another.
2. Poisons.
Defendant, who purchased lid of marijuana for undercover police officer who pretended interest in him
and friendship for him, and who did not act on his own behalf or for the supplier but
solely for the recipient, could not be found guilty of being a "seller" of marijuana.
87 Nev. 517, 518 (1971) Roy v. State
him, and who did not act on his own behalf or for the supplier but solely for the recipient, could not be
found guilty of being a seller of marijuana. NRS 453.030, 453.210, subd. 2.
OPINION
The appellant, a 22-year-old mentally retarded bus boy, able neither to read nor write,
purchased a lid of marijuana for an undercover police officer who pretended interest in him
and friendship for him. Convicted of the nonprobationable offense of selling marijuana in
violation of NRS 453.030 and NRS 453.210(2), sentenced to prison for four years, appellant
assigns as error the trial court's refusal to give the following instruction:
If you believe that Police Officer R. Baggett asked the defendant to get some marijuana
for him and that the defendant thereupon undertook to act in behalf of Police Officer Baggett
rather than on defendant's own behalf, and in so doing, purchased the marijuana from a third
person with whom the defendant was not associated in selling marijuana, and that defendant
thereafter delivered the marijuana to Police Officer Baggett, the defendant is not a seller and
cannot be convicted of the offense of selling marijuana.
Where the evidence does not foreclose it, the pertinent authorities establish that such an
instruction must be given. Appellant's counsel carefully couched the proffered instruction in
language faithfully following that approved in a long line of federal authorities, e.g.: United
States v. Sawyer, 210 F.2d 169 (3rd Cir. 1954); Adams v. United States, 220 F.2d 297 (5th
Cir. 1955); Bruno v. United States, 259 F.2d 8 (9th Cir. 1958); United States v. Prince, 264
F.2d 850 (3rd Cir. 1959); Lewis v. United States, 337 F.2d 541 (D.C. Cir. 1964), the latter
opinion being delivered by Chief Justice Burger when he was a circuit judge. The propriety of
such an instruction is also generally supported by numerous other authorities, e.g.: Durham v.
State, 280 S.W.2d 737 (Tex.Crim.App. 1955); People v. Buster, 145 N.Y.S.2d 437
(N.Y.App. 1955); Townsel v. State, 286 S.W.2d 162 (Tex.Crim.App. 1956); Henderson v.
United States, 261 F.2d 909 (5th Cir. 1958); People v. Branch, 213 N.Y.S.2d 535 (N.Y.App.
1961); People v. Lindsey, 238 N.Y.S.2d 956 (N.Y.App. 1963); People v. Fortes, 260
N.Y.S.2d 716 (N.Y.App. 1965); People v. Hingerton, 277 N.Y.S.2d 754 (N.Y.App. 1967).
Indeed, it may even be contended appellant might have requested a stronger instruction,
cf.
87 Nev. 517, 519 (1971) Roy v. State
contended appellant might have requested a stronger instruction, cf. Smith v. State, 396
S.W.2d 876 (Tex.Crim.App. 1965).
[Headnote 1]
Still, as a possible ground for distinguishing these authorities, the State notes that in most
cases the actual seller was joined as a defendant along with the person involved as the buyer's
agent. Of course, such a distinction is without substance, for the criminality of one person's
acts cannot rationally depend on whether the State decides to prosecute another.
The State also suggests our decisions in Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841
(1969), and Glosen v. Sheriff, 85 Nev. 166, 451 P.2d 843 (1969), establish our law contrary
to what decisions of other courts quite uniformly establish as the law elsewhere. This patently
is not so. In the Glosen cases, habeas corpus matters concerned merely with probable cause to
hold for trial, this court held one who traffics in narcotics by assisting a seller may be found
guilty of a sale, although he takes no profit from the transaction. We did not hold, as the
State would suggest, that one may be guilty of a sale when he does not participate in his own
behalf or on behalf of the seller, but solely on behalf of a buyer such as police officer Baggett.
In the Glosen cases the evidence strongly suggested, and certainly did not negate, that
Pearson and Crown were involved on behalf of Glosen. Our legislature has eliminated
personal profit as a matter of concern. It has not eliminated concern for whether the defendant
is in any real sense a seller, exchanger, barterer, giver, or source of supply. NRS 453.210(2).
[Headnote 2]
It seems rather fundamental that one cannot be found guilty of being a seller, when he
has not acted for the supplier but solely for the recipient. Asked at oral argument if the State
could successfully prosecute appellant, at a new trial with proper instructions as requested by
appellant, the State's representative conceded it could not, or at least would not, attempt
further prosecution. Accordingly, the conviction is reversed; appellant is discharged; his bond
is exonerated.
____________
87 Nev. 520, 520 (1971) Mohr Park Manor, Inc. v. Bank of Nevada
MOHR PARK MANOR, INC., a Nevada Corporation, and JAMES M. McGROARTY,
Appellants, v. BANK OF NEVADA Administrator, With the Will Annexed, of the
ESTATE OF ANNA MOHR, Respondent.
No. 6427
November 2, 1971 490 P.2d 217
Appeal from judgment of the Eighth Judicial District Court, Clark County; Alvin N.
Wartman, Judge.
Action by optionor-seller against optionee-buyer for judgment declaring that option
agreement was a nullity and constituted a cloud upon her title which should be erased. After
remand, 83 Nev. 107, 424 P.2d 101 (1967), the district court entered judgment for optionor,
and optionee appealed. The Supreme Court held that although there was evidence tending to
show that financing a senior citizens' project of size and complexity contemplated by
optionee-buyer must await engineering of property, preparation of cost data for off-site
improvements, and approval of subdivision plans by city commissioner, finding that optionee
had not secured financing for project within a reasonable time was not clearly erroneous,
where there was evidence that optionee had not proceeded diligently to secure requisite
financing, a tentative commitment for which could have been obtained subject to final
approval of plan by the city commission.
Affirmed.
[Rehearing denied November 19, 1971]
Beckley, De Lanoy & Jemison, of Las Vegas, for Appellants.
Coulthard, Smith & O'Brien, of Las Vegas, for Respondent.
1. Contracts.
A reasonable time for performance of a contract depends upon nature of the contract and the particular
circumstances involved.
Although there was evidence tending to show that financing a senior citizens' project of size and
complexity contemplated by optionee-buyer must await engineering of property, preparation of cost data
for off-site improvements, and approval of subdivision plans by city commissioner, finding that optionee
had not secured financing for project within a reasonable time was not clearly erroneous, where there
was evidence that optionee had not proceeded diligently to secure requisite
financing, a tentative commitment for which could have been obtained subject to
final approval of plan by the city commission.
erroneous, where there was evidence that optionee had not proceeded diligently to secure requisite
financing, a tentative commitment for which could have been obtained subject to final approval of plan by
the city commission. NRCP 52(a).
OPINION
Per Curiam:
This matter concerns an option agreement for the purchase of real property, and is before
us for the second time. The agreement was executed on March 2, 1962, between Anna Mohr
as optionor-seller and Mohr Park Manor, Inc., as optionee-buyer and concerned
approximately 150 acres of land in Clark County, Nevada, to be sold for $3000 per acre. The
buyer intended to secure financing with which to pay for the land, subdivide it and build
thereon a senior citizens project. The agreement, however, did not fix a time within which
financing was to be secured and the option exercised. As of November 1, 1962, Anna Mohr
had received no payments for her property and, therefore, commenced this action for
declaratory relief contending that the option agreement was a nullity and constituted a cloud
upon her title which should be erased.
1
The district court ruled in her favor and voided the
agreement primarily for the reason that it did not specify a time within which the option was
to be exercised. On the first appeal we reversed that ruling, Mohr Park Manor, Inc. v. Mohr,
83 Nev. 107, 424 P.2d 101 (1967), noting that the option was for an indefinite but limited
time, that time being as soon as financing has been obtained, and held that, in such
circumstances, it is appropriate to imply a reasonable time for performance. Id. at 114.
Accordingly, we remanded the matter to the district court for the factual determination of
what is a reasonable time within which the option may be exercised in the context of this
case. Id. at 115. The parties stipulated that the factual determination could be made by the
district court upon the record of the original trial without additional evidence being received.
The court once more ruled for the optionor-seller and expressly found that the optionee had
not secured financing for the project within a reasonable time. Judgment was entered
accordingly, and this appeal followed.
____________________

1
Anna Mohr died during the litigation and the Bank of Nevada was substituted in her place.
[Headnotes 1, 2]
A reasonable time for the performance of a contract depends upon the nature of the
contract and the particular circumstances involved. Denison v. Ladd Et Al., 54 Nev. 186, 10
P.2d 637 (1932). The factual determination by the district court that a reasonable time for
performance by the optionee has passed when this suit was commenced is challenged by the
appellant as clearly erroneous, NRCP 52(a), and not supported by any credible evidence. In
short, it is the appellants' argument that all of the evidence in the record shows that financing
a project of the size and complexity here contemplated must await engineering of the
property, the preparation of cost data for off-site improvements, and the approval of
subdivision plats by the city commission, all of which requires nine to ten months of time and
effort, moreover, that such period of time had not passed when this suit was filed and the
option repudiated by Anna Mohr. Although the record does contain such evidence, it also
contains evidence that the optionee had not proceeded diligently to secure the requisite
financing, a tentative commitment for which could have been obtained subject to final
approval of the plan by the city commission. Accordingly, we affirm.
____________
87 Nev. 522, 522 (1971) Giese v. Chief of Police
DAVID WILLIAM GIESE, Appellant, v. CHIEF OF
POLICE, RENO, NEVADA, Respondent.
No. 6288
November 2, 1971 489 P.2d 1163
Appeal from an order denying a petition for a writ of habeas corpus. Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
The district court denied petition, and petitioner appealed. The Supreme Court held that
petitioner, who had apparent reason and business for going from place to place because he
had attended a movie, gone to a cafe for a cup of coffee and then to a service station to obtain
gas for his friend's automobile, and who upon being arrested was neither asked to identify
himself nor account for his presence, could not properly have been found guilty of a violation
of disorderly person ordinance.
Reversed, and appellant is discharged from restraint.
J. MacArthur Wright, Washoe County Legal Aid Society, of Reno, for Appellant.
Clinton E. Wooster, City Attorney, Richard J. Legarza, and Steve Lane, Assistant City
Attorneys, of Reno, for Respondent.
1. Habeas Corpus.
Failure of defendant to raise defects existing in complaint before municipal court and his voluntary act in
pleading guilty did not preclude him from raising such defects on a petition for writ of habeas corpus.
2. Criminal Law.
Although procedural defects may be inferentially waived by a guilty plea where defendant was
represented by competent counsel, substantive rights cannot be deemed waived in same manner.
Petitioner, who had apparent reason and business for going from place to place because he had attended a
movie, gone to a cafe for a cup of coffee and then to a service station to obtain gas for his friend's
automobile, and who upon being arrested was neither asked to identify himself nor account for his
presence, could not properly have been found guilty of a violation of disorderly person ordinance.
4. Habeas Corpus.
Although petitioner may have originally concluded that it was to his advantage to plead guilty to violating
disorderly person ordinance and begin to serve whatever sentence might be imposed rather than remain
incarcerated awaiting trial, he could not continue to be held where there was no evidence that an offense
had been committed.
5. Criminal Law.
There was a primary duty upon municipal court to apprise accused of his privilege against compulsory
self-incrimination, and right to confront one's accusers, and to require an affirmative showing that guilty
plea was intelligently and voluntarily made before accepting it. U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
The appellant Giese plead guilty to the City of Reno's disorderly person ordinance,
which provides that: (a) Every person is a vagrant who: . . . (8) Loiters or wanders upon the
streets or from place to place without apparent reason or business and who refuses to identify
himself and to account for his presence when requested by any peace officer so to do, if the
surrounding circumstances are such as to indicate to a reasonable man that the public safety
demands such identification. He was sentenced to 25 days in jail. After he had begun to
serve his sentence he petitioned the district court for a writ of habeas corpus claiming
that he was illegally imprisoned and restrained of his liberty.
to serve his sentence he petitioned the district court for a writ of habeas corpus claiming that
he was illegally imprisoned and restrained of his liberty. After a hearing the petition was
denied.
The appellant, in his argument before the district court, contended that: (1) The Municipal
Court of the City of Reno failed to advise him that he had a right to appointed counsel if he
could not afford to hire private counsel; (2) that he had a right because of his poverty to be
released on his own recognizance pending trial, and; (3) that the Reno Municipal Ordinance,
section 11.12.070 was unconstitutional. However, upon appeal he contends that an indigent
has a right to appointed counsel in all misdemeanor prosecutions in the State of Nevada and
that Reno Municipal Ordinance, section 11.12.070, is unconstitutional. We do not reach these
issues because we have examined the record and it appears that the appellant was otherwise
illegally imprisoned and restrained of his liberty. In his decision the trial judge noted that no
testimony was presented at the hearing and that for the purpose of his decision he deemed the
facts recited in the appellant's points and authorities to be stipulated.
An examination of those facts indicates that the arresting officer neither asked the
appellant his identity nor requested an account of his presence at the place of arrest. In the
respondent's supplemental brief, submitted at our request, he admits that the arresting officer
did not ask the appellant to identify himself or account for his presence, that the officer did
not have reason to believe that the public safety was threatened, nor was the appellant
loitering or wandering upon the streets or from place to place without apparent reason or
business.
The respondent further concedes that it is abundantly clear from the appellant's affidavit
that he had apparent reason and business for going from place to place because he had
attended a movie, gone to a cafe for a cup of coffee and then to a service station to obtain gas
for his friend's automobile. However, after making these concessions the respondent contends
that the appellant's guilty plea contravenes his affidavit and the other facts deemed stipulated
by the trial judge, and that he is estopped to contend that no crime has been committed.
[Headnote 1]
The failure by the appellant to raise the defects existing in the complaint before the
municipal court, and his voluntary act in pleading guilty did not preclude him from raising
such defects on a petition for a writ of habeas corpus. Ex parte Dickson, 36 Nev. 94, 133 P.
393 (1913).
[Headnote 2]
Although procedural defects may be inferentially waived by a guilty plea where the
defendant was represented by competent counsel, (See Bates v. State, 84 Nev. 43, 436 P.2d
27 (1968); cf. Hall v. Warden, 83 Nev. 446, 434 P.2d 425 (1967)) substantive rights cannot
be deemed waived in the same manner.
In Ex parte Dickson, supra at 101, this court said: The effect of the plea of guilty,
generally speaking, is a record admission of whatever is well charged in an indictment, but if
the latter be insufficient, either from a standpoint of failing to confer jurisdiction or to set
forth facts sufficient to constitute a public offense, the plea of guilty confesses nothing. . . . A
plea of guilty amounts to nothing more than an acknowledgment of the facts charged in the
indictment, but whether such facts constitute an offense at law is left open to be decided by
the court.
[Headnote 3]
Here the unrefuted affidavit of the appellant, together with the concessions of the
respondent, indicate that the appellant could not have been found guilty of a violation of Reno
Municipal Code, section 11.12.070(a)(8).
[Headnote 4]
Although the appellant may have originally concluded that it was to his advantage to plead
guilty and begin to serve whatever sentence might be imposed rather than remain incarcerated
awaiting trial, he cannot continue to be held where there is no evidence that an offense has
been committed. Cf. North Carolina v. Alford, 400 U.S. 25 (1970).
[Headnote 5]
Here there was a primary duty upon the municipal court to apprise the accused of his
privilege against compulsory self-incrimination which is guaranteed by the Fifth Amendment
and applicable to the states by reason of the Fourteenth Amendment (Malloy v. Hogan, 378
U.S. 1 (1963)), and the right to confront one's accusers (Pointer v. Texas, 380 U.S. 400
(1965)), and to require an affirmative showing that the plea was intelligently and voluntarily
made before accepting it (Boykin v. Alabama, 395 U.S. 238 (1968)). Because we are not
dealing with a court of record we do not know whether the municipal judge discharged his
duty, but the affidavit of the appellant together with the respondent's concession that Reno
Municipal Code section 11.12.070(a)(8) was not violated, indicate that the appellant is
being illegally imprisoned and restrained of his liberty.
indicate that the appellant is being illegally imprisoned and restrained of his liberty. It is the
order of this court that he be released from custody forthwith. See Ex parte Dickson, supra;
see also Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970).
____________
87 Nev. 526, 526 (1971) Polk v. Mac Millan
HARRY POLK and PEGGY POLK, Appellants, v.
DOUGLAS W. MAC MILLAN, Respondent.
No. 6481
November 4, 1971 490 P.2d 218
judgment; John F. Mendoza, Judge.
Plaintiff brought suit in which he alleged that judgment had been entered and not paid. The
district court granted summary judgment in favor of plaintiff, and defendants appealed. The
Supreme Court, Gang, D. J., held that where plaintiff alleged that judgment had been entered,
attached certified copy of judgment and claimed that no part of judgment had been paid and
defendants' affidavit asserted payment of $7,000 to plaintiff without specifying purpose of
payment and plaintiff explained that payment was not in discharge of the judgment but was
for an unrelated debt, plaintiff was entitled to recover sum of $7,200 together with 7 percent
interest.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellants.
Hilbrecht, Jones & Schreck, of Las Vegas, for Respondent.
1. Judgment.
Court must accept as true all allegations in affidavits favorable to party against whom summary judgment
is entered and accord to that party all favorable intendments to which he is entitled, but affidavits must
raise genuine issue of material fact in order to forestall granting of summary judgment. NRCP 56(c).
2. Judgment.
Where plaintiff in complaint alleged that judgment had been entered, attached certified copy of judgment
and claimed that no part of judgment had been paid and defendants' affidavit asserted payment of $7,000 to
plaintiff without specifying purpose of payment but plaintiff's explanation that payment was not in
discharge of the judgment but was for an unrelated debt was unrefuted, plaintiff was
entitled to recover sum of $7,200 together with 7 percent interest.
of the judgment but was for an unrelated debt was unrefuted, plaintiff was entitled to recover sum of
$7,200 together with 7 percent interest.
OPINION
By the Court, Gang, D. J.:
This is an appeal from the granting of a summary judgment in favor of the plaintiff,
awarding him the sum of $7,200 together with 7 percent interest from November 17, 1964.
The appellants, defendants below, ask that we set aside the summary judgment on the ground
that there is a genuine issue of fact. In this opinion the parties will be referred to as plaintiff
and defendants.
Plaintiff in his complaint alleged that a judgment had been entered, attached a certified
copy of the judgment, and claimed that no part of the judgment, costs, disbursements, or
accrued and accruing interest thereon, has ever been paid. These allegations were admitted
by the defendants. A motion for summary judgment was then filed, pursuant to Rule 56(a)
NRCP. The defendants claim that their affidavit, together with that of their counsel, raises a
genuine issue of material fact which precludes summary judgment and demands a trial by the
trier of the fact. We do not agree.
[Headnote 1]
The court must, of course, accept as true all allegations in the affidavits favorable to the
party against whom the summary judgment is entered (Parman v. Petricciani, 70 Nev. 427,
272 P.2d 492 (1954)) and accord to that party all favorable intendments to which he is
entitled. Abbott v. Miller, 80 Nev. 174, 390 P.2d 429 (1964). The affidavits must, however,
raise a genuine issue of material fact in order to forestall the granting of a summary judgment.
Rule 56(c) NRCP.
[Headnote 2]
The affidavits offered by the defendants in opposition to the plaintiffs' motion for
summary judgment do not claim payment of the judgment. They assert payment of $7,000 to
the plaintiff without specifying the purpose of that payment. On the other hand, the plaintiff
explained that such payment was not in discharge of the judgment upon which this suit is
based, but was for an unrelated debt. The explanation is unrefuted.
No genuine issue of material fact has been raised or even inferred. Summary judgment was
proper.
Affirmed.
____________
87 Nev. 528, 528 (1971) Champion v. State
CHRIS CHAMPION, Appellant, v. THE STATE
No. 6545
November 15, 1971 490 P.2d 341
Appeal from judgment and sentence of the Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Reversed; appellant ordered discharged from custody.
Respondent.
OPINION
Per Curiam:
The State having confessed error, conceding there is insufficient evidence upon which to
convict appellant Chris Champion of the crime for which she stands convicted, this cause is
reversed and appellant ordered discharged from custody.
____________
87 Nev. 528, 528 (1971) City of Las Vegas v. Young Elec. Sign Co.
CITY OF LAS VEGAS, Appellant, v. YOUNG ELECTRIC SIGN COMPANY, a Nevada
Corporation, GULBRANSEN NEON SIGN CO., INC., a Nevada Corporation, FEDERAL
SIGN AND SIGNAL CORPORATION, a Nevada Corporation and AD ART INC., a Nevada
Corporation, Respondents.
No. 6551
November 15, 1971 490 P.2d 341
Appeal from judgment of the Eighth Judicial District Court, Clark County; William R.
Morse, Judge.
The city appealed from a judgment of the district court in favor of sign companies from
which fees were demanded for two separate businesses. The Supreme Court held that
evidence sustained finding of district court that sign companies, with respect to which
separate license fees were demanded under Las Vegas City Code for business of furnishing or
placing in use electrical advertising signs and for business of being contractors, were engaged
in nondiversified self-contained businesses that could be feasibly carried on only as one
business and could not as conducted be feasibly divided into two distinct businesses.
Affirmed.
Earl P. Gripentrog, City Attorney, and Joan D. Buckley, Deputy City Attorney, of Las
Vegas, for Appellant.
Paul L. Larsen, of Las Vegas, for Respondents.
1. Licenses.
Evidence sustained finding of district court that sign companies, with respect to which separate license
fees were demanded under Las Vegas City Code for business of furnishing or placing in use electrical
advertising signs and for business of being contractors, were engaged in nondiversified self-contained
businesses that could be feasibly carried on only as one business and could not as conducted be feasibly
divided into two distinct businesses.
2. Licenses.
Test under Las Vegas City Code provision imposing separate license fees for every class and type of
business to determine if two aspects of business enterprise may be subjected to separate license fees is
whether each could be maintained as a separate business.
OPINION
Per Curiam:
This case concerns validity of appellant's demand that respondents pay two business
license fees. Fees are demanded from respondents for being in [t]he business of furnishing,
distributing or placing in use electrical advertising signs, whether by lease, sale or conditional
sales contract. Las Vegas City Code 5-1-10:A8 (1960). Fees are also demanded for being
contractors, i.e. one who does himself or by or through others, construct, alter or repair,
add to, subtract from, improve, move, wreck or demolish any building, highway, road,
railroad, excavation, or other structure, project, development or improvement, or to do any
part thereof, including the erection of scaffolding or other structures or work in connection
therewith.
Las Vegas City Code 5-1-10:C14 (1960). Appellant's City Code requires separate license
fees for every class and type of business in this Chapter specified, even though several
classes or types of business may be operated by the same person at the same place of
business. Las Vegas City Code 5-1-3 (1960).
After a trial, the district court restrained the city from imposing dual fees, holding
respondents to be engaged in a nondiversified self-contained business that can be feasibly
carried on only in one business and cannot as now conducted be feasibly divided into two
distinct businesses: selling or leasing electrical advertising signs and installing them on the
property of the vendee or lessee.
[Headnotes 1, 2]
This finding, which is supported by the evidence, determined the case in accordance with
the law. Cf. Carson City v. Red Arrow Garage, 47 Nev. 473, 225 P. 487 (1924). As this court
has recognized it, the test to determine if two aspects of a business enterprise may be
subjected to separate license fees is whether each could be maintained as a separate
business. 47 Nev., at 481.
The court allowed appellant to impose the fee applicable to contractors. No error is
claimed in this regard.
Affirmed.
____________
87 Nev. 530, 530 (1971) Leeming v. Leeming
THOMAS L. LEEMING, Jr., Appellant, v. LOLA G.
LEEMING, Respondent.
No. 6491
November 15, 1971 490 P.2d 342
Appeal from order denying motion to amend judgment, entered by Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
Divorced wife moved for increased child support and for counsel fees. The district court
entered award of suit money and increased child support, and husband appealed. The
Supreme Court, Gunderson, J., held that rule providing that, in event defendant has offered
judgment more favorable than final award, offeree shall pay costs and attorney fees of party
making the offer is inapplicable to divorce proceedings.
Affirmed; suit money awarded respondent for attorney services on appeal.
Robert R. Herz, of Reno, for Appellant.
Hawkins, Rhodes & Hawkins and F. DeArmond Sharp, of Reno, for Respondent.
1. Divorce.
Where wife files appropriate post-judgment motion in divorce action relating to support or custody of
minor children, court has power to grant allowances and suit money as part of its continuing jurisdiction.
NRS 125.040.
2. Divorce.
Where hearing transcript was not brought up on appeal from award of suit money and increased child
support it would be assumed that evidence supported court's implicit determinations that child support
monies were necessary or proper for care of children and that suit money was needed to pay counsel
without diminishing care for children. NRS 125.040, 125.140, subd. 2.
3. Divorce.
Even if rule levying cost of action on party refusing offer of judgment more favorable than final award
were applicable to divorce actions, trial court's refusal to invoke rule upon wife's motion for suit money and
additional child support was not error, where it could not be said that final award was less favorable than
husband's offer of judgment. NRCP 68.
4. Divorce.
Rule providing that, in event a defendant has offered judgment more favorable than final award, offeree
shall pay costs and attorney fees of party making the offer is inapplicable to divorce proceedings. NRCP
68.
5. Divorce.
Only court can determine what is necessary or proper for welfare of children, and a wife cannot enter into
a stipulation or agreement in divorce litigation that binds the court concerning child custody and support.
OPINION
On this appeal, we affirm the district court's refusal to apply NRCP 68 to post-judgment
proceedings in a divorce matter.
1

Several years after their divorce, respondent moved the court to order appellant to
increase payments for the support of the parties' minor children.
____________________

1
At the time of the proceedings, NRCP 68 provided:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken against him for the money or property or to the effect
specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party
serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance
together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall
be
court to order appellant to increase payments for the support of the parties' minor children.
Predicated not upon rights inhering in respondent, but upon the children's claimed needs,
respondent's motion invoked power reserved to the court under NRS 125.140(2), which
provides: In actions for divorce the court may, during the pendency of the action, or at the
final hearing or at any time thereafter during the minority of any of the children of the
marriage, make such order for the custody, care, education, maintenance and support of such
minor children as may seem necessary or proper, and may at any time modify or vacate the
same.
[Headnote 1]
On grounds of need, respondent also asked an award of money to pay her counsel for their
assistance. NRS 125.040 empowers our courts to grant allowances and suit money in
divorce actions, including sums to enable a wife to employ counsel; and if the wife files an
appropriate post-judgment motion relating to support or custody of minor children, that
power remains as part of the continuing jurisdiction of the court. Ex rel. Groves v. District
Court, 61 Nev. 269, 125 P.2d 723 (1942); Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110
(1937).
[Headnote 2]
After a hearing at which both parties testified, and presumably adduced their proofs
concerning their situations and their children's needs, the court increased child support $6,000
annually, awarding respondent $2,500 to pay her counsel. As appellant has not brought up the
hearing transcript, we must assume the evidence supported the court's implicit
determinations, i.e.: that monies ordered for child support were necessary or proper for care
of the children, and that the $2,500 awarded as suit money was needed so respondent might
pay her counsel without diminishing the care the court contemplated for the children. Cf. City
of Henderson v. Bentonite, Inc., 87 Nev. 188, 483 P.2d 1299 (1971); cf. United States v.
McLean, 78 Nev. 60, 368 P.2d 872 (1962); cf. Anderson v. Havas, 77 Nev. 223, 361 P.2d 536
(1961). Appellant makes no serious contention to the contrary.
____________________
deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the
judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall not recover costs,
nor attorneys' fees, but shall pay the costs, attorneys' fees, if any be allowed, of the party making the offer from
the time of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.
[Headnote 3]
In brief, appellant contends that although the court made apparently proper awards to
respondent, it should thereafter have deprived her of suit money, and ordered her to pay
appellant attorney fees and costs, because prior to the hearing appellant had served an offer
of judgment more favorable than the court's ultimate award. By a Motion to Amend
Decision, with appellant's offer of judgment attached, the court was advised for the first
time that appellant had tendered judgment for $7,501 additional annual support as alimony,
with nothing for counsel fees. The court denied appellant's motion; this appeal follows.
1. We cannot determine whether $6,000 additional child support was more or less
favorable to respondent than appellant's offer of $7,501 as alimony. Income paid as alimony
being taxable to the wife, while child support is not, the subtleties of respondent's tax
situation may be significant, but of these we have no record. Hence, if NRCP 68 were
applicable to divorce actions, we could not find the court erred in denying appellant's motion,
believing its award more favorable than appellant's offer of judgment. Cf. City of Henderson
v. Bentonite, Inc., and other authorities cited above.
[Headnote 4]
2. Furthermore, we deem NRCP 68 inapplicable to divorce proceedings, which involve
entirely different social considerations than other civil actions.
Suit money awards are made upon showing of need, to prevent a failure of justice.
Cranmer v. Cranmer, 79 Nev. 128, 379 P.2d 474 (1963); Green v. Green, 75 Nev. 317, 340
P.2d 586 (1959); Fleming v. Fleming, supra. Before 1961, suit money was awarded only
prospectively, for services to be rendered. Cranmer v. Cranmer and Fleming v. Fleming,
supra; Metcalf v. Second Judicial District Court, 51 Nev. 253, 274 P. 5 (1929); Black v.
Black, 47 Nev. 346, 221 P. 239 (1924); Wilde v. Wilde, 2 Nev. 306 (1866). As to legal
services obtained before a motion seeking money to pay for them, it was felt relief was
precluded, because the facts showed money was not necessary to obtain them. Black v. Black
and Wilde v. Wilde, supra. Accordingly, if an attorney assisted a wife in necessitous
circumstances, without making a preliminary motion for fees, he did so looking only to the
credit of the wife, knowing she must pay him from funds the court awarded as support or as
her part of the community estate. As a result, our courts were burdened by motions for suit
money, at the outset of proceedings, and even during the course thereof.
course thereof. Levinson v. Levinson, 74 Nev. 160, 325 P.2d 771 (1958); Lake v. Lake, 16
Nev. 363 (1882).
In 1961, our legislature amended NRS 125.150, to make our procedures less cumbersome,
to facilitate wives in obtaining legal aid, and to enable attorneys to defer fee claims until the
end of divorce proceedings when our courts can most fairly evaluate the worth of services and
the impact of fees on the situation of the parties. Now, [w]hether or not application for suit
money has been made under the provisions of NRS 125.040, the court may award a
reasonable attorney's fee to either party to an action for divorce if attorneys' fees are in issue
under the pleadings. Stat. of Nev. 1961, ch. 244, p. 401; NRS 125.150(2).
Thus, unlike awards of attorneys' fees allowed in certain other civil actions to the party
who prevails, to make him whole when legal assistance has been necessary to vindicate his
rights (NRS 18.010), suit money is allowed a wife so that the court may hear her needs and
those of the parties' children. In other matters, attorney fees are awarded at the end of the
litigation, for the right thereto is by NRS 18.010 conditioned upon prevailing, and by
NRCP 68 is conditioned upon prevailing to an extent greater than any offer made under that
rule. In divorce matters, the wife's right not depending on whether she prevails, she may
apply for suit money at any time, but since 1961 may defer adjudication of her claim, for the
convenience of the parties, their counsel, and the court. Respondent's counsel followed the
latter procedure, properly placing a claim for fees in issue by respondent's post-judgment
motion for increased child support. Cf. Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970).
To hold NRCP 68 applicable to divorce matters would be incompatible with the pattern
and policy of our law, for several reasons.
First, attorneys could not extend credit to wives in necessitous circumstances, as our
legislature intended, without looking to them for payment from monies necessary and
intended by the court for other purposes. Counsel would be constrained, in virtually every
case, to revert to the practice of making preliminary motions for suit money, destroying the
salutory effect of our legislature's 1961 amendment to NRS 125.150.
Second, if counsel deferred adjudication of a suit money application until the end of the
litigation, the judge could not know his awards of child support and suit money would meet
the interests of the parties' children, for his award of suit money would be nugatory if his
award of support was not "more favorable" than the husband had offered during pendency
of the proceedings.
more favorable than the husband had offered during pendency of the proceedings. To
obviate this, and meet the full needs of the mother, so that she might support the children, the
judge would have to denominate as child support the money needed to discharge the wife's
obligation to her attorney. Appellant acknowledges this expedient was fully available to the
court in the instant matter.
Third, as this case illustrates, in divorce matters support claims frequently are not
independent of other considerations, e.g. whether monies are termed alimony or child
support. Only a moment's thought is required to realize that in divorce actions, where the
parties have interrelated as well as unrelated motives and problems, where far more may be at
stake than the mere dollar amount of a support award, an offer of judgment seldom can be
comprehensive, and an offer's favorable character will often depend on the parties' personal
goals.
2

Fourth, the salutory purpose of NRCP 68, which is intended to discourage needless
litigation, would itself be defeated if that rule were to be applied to divorce proceedings. In
every divorce matter, after making a fair award, the court might face further litigation over
the question, perhaps incredibly intricate, of whether the award was more favorable than an
offer of judgment tendered by the husband.
[Headnote 5]
Finally, while NRCP 68 impels the offeree to reach agreement concerning the parties'
rights, or hazard the sanctions imposed by that rule, in divorce litigation a wife cannot enter
into a stipulation or agreement that binds the court concerning child custody and support, for
it is not the rights of the parties which are to be determined, but the best interests of the
child. Atkins v. Atkins, 50 Nev. 333, 337, 259 P. 288, 289 (1927). Accord: Green v. Green,
supra; Silva v. District Court, 57 Nev. 468, 66 P.2d 422 (1937); Lewis v. Lewis, 53 Nev. 398,
2 P.2d 131 (1931). Since appellant's offer of judgment would not have bound the court had
it been accepted, we do not perceive how that offer could limit the court's jurisdiction
when it was rejected.
____________________

2
For example, are visitation rights consisting of one month in the summer, with two weekends per month
during the rest of the year, more favorable than six weeks in the summer, with one weekend per month the
balance of the time? Is $125 per month during the children's nine-month school year, the husband caring for the
children during the summer, more favorable than $100 per month with the wife having full custody, and
responsibility to care for the children all year long? We see no way to equate such matters, or to eliminate
legitimate controversy concerning them by offers of judgment.
not perceive how that offer could limit the court's jurisdiction when it was rejected. Further,
since only the court could determine what was necessary or proper for the welfare of the
children, if respondent had accepted appellant's offer of judgment, the clerk could not
thereupon have entered judgment, as NRCP 68 provides.
In view of the foregoing, the order appealed from is affirmed. Respondent having
requested suit money for services rendered by her counsel on appeal, appellant is hereby
ordered to pay respondent the further sum of $1,000 to discharge her obligation for such
services.
____________
87 Nev. 536, 536 (1971) Marshall v. State
RICHARD ALLEN MARSHALL, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 6505
November 22, 1971 490 P.2d 1056
Appeal from a conviction and sentence for the crime of burglary. Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court held that evidence sustained conviction.
Affirmed.
Respondent.
1. Criminal Law.
Upon appeal Supreme Court must sustain a conviction if the record contains substantial evidence to
support the conviction.
2. Burglary.
Evidence sustained conviction for burglary. NRS 205.060.
OPINION
Per Curiam:
[Headnotes 1, 2]
Marshall, appellant-defendant, was tried before a jury and found guilty of burglary, a
violation of NRS 205.060.
87 Nev. 536, 537 (1971) Marshall v. State
found guilty of burglary, a violation of NRS 205.060. Appellant asserts on appeal that there
was insufficient evidence adduced at his trial to support his conviction. It is a long established
rule of this court that upon appeal we must sustain a conviction if the record contains
substantial evidence to support the conviction. We have reviewed the record and find therein
substantial evidence to support the appellant's conviction and prove each and every element
of the crime with which he was charged. Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971);
Graham v. State, 86 Nev. 290, 467 P.2d 1016 (1970); McGuire v. State, 86 Nev. 262, 468
P.2d 12 (1970); Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).
We have reviewed and considered the other assertion of error and find it to be without
merit.
The judgment of conviction is affirmed.
____________
87 Nev. 537, 537 (1971) King v. State
CLARENCE B. KING, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6474
November 22, 1971 490 P.2d 1054
Appeal from judgment of conviction of involuntary manslaughter entered in Eighth
Defendant was convicted in the district court of involuntary manslaughter, and he
appealed. The Supreme Court, Mowbray J., held that evidence sustained conviction of
defendant who was driving truck which collided at intersection with another truck, one of
whose passengers died as a result of injuries received in collision, who assertedly did not stop
when flagman stopped traffic to permit other truck to pass through the intersection and whose
blood was determined to contain .251 percent blood alcohol.
Affirmed.
1. Criminal Law.
A jury verdict will not be overturned if there is sufficient evidence in record to substantiate
jury's finding, and jury is sole and exclusive judge of credibility of witnesses and
weight to be given evidence.
87 Nev. 537, 538 (1971) King v. State
evidence in record to substantiate jury's finding, and jury is sole and exclusive judge of credibility of
witnesses and weight to be given evidence.
2. Automobiles.
Evidence sustained conviction for involuntary manslaughter of defendant who was driving truck which
collided at intersection with another truck, one of whose passengers died as a result of injuries received in
collision, who assertedly did not stop when flagman stopped traffic to permit other truck to pass through
the intersection and whose blood was determined to contain .251 percent blood alcohol. NRS 200.070.
OPINION
[Headnotes 1, 2]
Clarence B. King, the appellant, was tried to a jury and found guilty of involuntary
manslaughter. NRS 200.070.
1
He seeks reversal of his judgment of conviction on the sole
ground that the evidence presented to the jury was insufficient to support their verdict. A jury
verdict will not be overturned if there is sufficient evidence in the record to substantiate the
jury's finding. Williams v. State, 87 Nev. 230, 484 P.2d 1088 (1971); Collins v. State, 87
Nev. 436, 488 P.2d 544 (1971); Graham v. State, 86 Nev. 290, 467 P.2d 1016 (1970). The
jury is the sole and exclusive judge of the credibility of the witnesses and the weight to be
given the evidence. Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).
We turn to the record. The information that charged King provided in part that King
unlawfully and feloniously kill[ed] ROBERT JOHNSON, a human being, without malice or
deliberation in the commission of an unlawful act, to-wit, by operating a 1951 Ford half-ton
pickup, . . . in a careless, reckless, and imprudent manner and in such manner as to endanger
the life, limb, and property of persons upon said public highway, while under the influence of
intoxicating liquor, having failed to stop in obedience to a stop sign erected at said
intersection and a construction flagman directing traffic at said intersection, . . ."
____________________

1
NRS 200.070:
Involuntary manslaughter shall consist in the killing of a human being, without any intent so to do, in the
commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful
manner; but where such involuntary killing shall happen in the commission of an unlawful act, which, in its
consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a
felonious intent, the offense shall be deemed and adjudged to be murder.
87 Nev. 537, 539 (1971) King v. State
to stop in obedience to a stop sign erected at said intersection and a construction flagman
directing traffic at said intersection, . . .
The 1951 Ford pickup truck driven by King collided at an intersection with a larger,
belly-dump truck driven by Wesley Eugene Simons. Robert Johnson, one of King's
passengers, died as a result of injuries received in the collision. At King's trial, several
witnesses testified for the State. Eugene Brooks, a flagman for Nevada Rock and Sand
Company, testified that he had been stationed at the intersection where the collision occurred,
for the purpose of controlling traffic to insure its flowing in an orderly fashion. He wore a red
vest and directed the traffic with a Stop/Slow sign. Brooks testified that he had stopped
the eastbound traffic to permit the belly-dump truck to pass through the intersection.
According to Brooks, King, who was in the lane of eastbound vehicles, did not stop, but
pulled around the other vehicles and headed for the intersection. Brooks tried to stop King,
but he was unsuccessful, and the collision resulted.
Wesley Eugene Simons, the driver of the belly-dump truck, testified for the State. His
testimony for the most part corroborated that of Brooks.
King's version of the accident was considerably different from the one presented by
Brooks and Simons. He denied that the eastbound traffic had been halted by Brooks. King
claimed that he crept toward the intersection with great caution, at a rate not exceeding 5
miles an hour; that Brooks waved him through the intersection, and the collision resulted.
He also denied that he had been drinking heavily. He was the only witness appearing in his
behalf.
David H. Shepherd, a detective for the Clark County Sheriff's office, testified that after the
accident he assisted Wayne Edelman, a laboratory technician at Southern Nevada Memorial
Hospital, in taking a blood sample from King. It was determined that King's blood contained
.251 grams of alcohol per 100 milliliters of blood, which is.251 percent blood alcohol.
Nevada law provides that the presence of 0.15 percent or more by weight of alcohol in the
blood is sufficient to establish the presumption that a person is under the influence of
intoxicating liquor.
2
Other witnesses testified for the State whose testimony we shall not
reiterate, because it is not necessary to do so.
____________________

2
NRS 484.055 subsection 1(c), in effect at the time of the accident, February 27, 1969:
1. In any criminal prosecution for . . . driving a vehicle while under the influence of intoxicating liquor, the
amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of
87 Nev. 537, 540 (1971) King v. State
Other witnesses testified for the State whose testimony we shall not reiterate, because it is
not necessary to do so. It is clear that there is substantial evidence in the record to support the
jury's verdict of guilty. The judgment of conviction is affirmed.
____________________
the defendant's blood, urine, breath or other bodily substance shall give rise to the following presumptions:
. . .
(c) If there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, it shall be
presumed that the defendant was under the influence of intoxicating liquor. (Repealed effective July 1, 1969,
chapter 675, Statutes of Nevada 1969, at 1510; replaced by identical NRS 484.381, subsection 1(c), now in
effect.)
____________
87 Nev. 540, 540 (1971) Gay v. State
BARON KENT GAY, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6286
November 22, 1971 490 P.2d 666
Appeal from a conviction for attempted burglary and the possession of burglary
instruments. Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Affirmed.
H. Dale Murphy, Public Defender, Washoe County, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Gary R. Silverman,
OPINION
Per Curiam:
The appellant was convicted of attempted burglary and the possession of burglary
instruments. The Public Defender of Washoe County has submitted this appeal pursuant to
the command of Anders v. California, 3S6 U.S. 73S {1967), referring to any point in the
record that might arguably support an appeal, Sanchez v.
87 Nev. 540, 541 (1971) Gay v. State
command of Anders v. California, 386 U.S. 738 (1967), referring to any point in the record
that might arguably support an appeal, Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
This court ordered that a transcript be supplied to the appellant who is indigent. Griffin v.
Illinois, 351 U.S. 12 (1956); Draper v. Washington, 372 U.S. 487 (1963); Eskridge v.
Washington Prison Bd., 357 U.S. 214 (1958); Entsminger v. Iowa, 386 U.S. 748 (1967). Our
independent review of the record establishes that the claims of error are frivolous. The
identification of the appellant as the attempted burglar was adequate; his arrest was with
probable cause; and the search of his person and seizure of burglary tools was incident to a
lawful arrest.
Affirmed.
____________
87 Nev. 541, 541 (1971) Van Dyk v. Earl
DIRK VAN DYK, Appellant, v. ROY EARL,
Respondent.
No. 6503
November 23, 1971 490 P.2d 1057
Appeal from order of the Eighth Judicial District Court, Clark County, William R. Morse,
Judge, dismissing appellant's complaint as to Roy Earl on the grounds that no genuine
material issue of fact exists.
Action by passenger against automobile owner and driver for injuries sustained in single
car accident. The district court dismissed as to the owner on ground no material issue of fact
existed, and plaintiff appealed. The Supreme Court held that where court made no
determination that there was no just cause for delay, and action remained pending against
other defendant, plaintiff's appeal would be dismissed.
Appeal dismissed.
Heaton & Spizzirri, of Las Vegas, for Appellant.
Roy Earl, of Las Vegas, In Proper Person.
Appeal and Error.
Where lower court, in dismissing action as to co-defendant on ground no material issue of fact existed,
made no determination, under rule governing judgment involving multiple parties, that there was no
just cause for delay, and action remained pending against other defendant, appeal by
plaintiff from dismissal order would be dismissed.
87 Nev. 541, 542 (1971) Van Dyk v. Earl
that there was no just cause for delay, and action remained pending against other defendant, appeal by
plaintiff from dismissal order would be dismissed. NRCP 54(b).
OPINION
Per Curiam:
For the purposes of this opinion, the facts are not complicated and may be stated easily.
Appellant was a sleeping occupant in an automobile, driven by Ted Sherman, co-defendant in
the proceedings below but not involved in this appeal, and owned by respondent Roy Earl,
which was involved in a single car accident occurring near Ensenada, Baja California,
Mexico.
Appellant sustained substantial injuries for which he claims Ted Sherman and respondent
Roy Earl are responsible.
The lower court dismissed the action as to respondent Roy Earl on the ground that no
material issue of fact existed.
The pleadings in the action were supplemented by answers to interrogatories, therefore, the
district judge was permitted by NRCP 12(b) to proceed with a summary judgment as
provided for by Rule 56(e).
We are obligated to dismiss the appeal, without reaching the merits, for the lower court
made no Rule 54(b) determination that there was no just cause for delay. As the action
remains pending against defendant Ted Sherman we will not adjudicate fragments of the
lawsuit unless properly certified to us. Monsour v. Haddad, 87 Nev. 448, 488 P.2d 916
(1971); Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d 956 (1967); Wilmurth v. State, 79
Nev. 490, 387 P.2d 251 (1963).
Appeal dismissed.
____________
LONNIE CHAMPION, Appellant, v. THE STATE
No. 6542
November 23, 1971 490 P.2d 1056
Appeal from judgment of conviction and sentence of the Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of selling four heroin capsules to
addict-informer, and he appealed. The Supreme Court held that where except for
addict-informer's testimony State adduced nothing to show that pills were turned over to
him and received from defendant, failure to give proper cautionary instruction concerning
addict-informer's testimony worked substantial prejudice to defendant though
defendant's counsel assertedly failed to request the instruction.
Supreme Court held that where except for addict-informer's testimony State adduced nothing
to show that pills were turned over to him and received from defendant, failure to give proper
cautionary instruction concerning addict-informer's testimony worked substantial prejudice to
defendant though defendant's counsel assertedly failed to request the instruction.
Robert G. Legakes, Public Defender, and Jerrold J. Courtney, Deputy Public Defender,
Respondent.
1. Criminal Law.
When State adduces testimony by an addict-informer, defendant is entitled to instructions cautioning jury
of care which must be taken in weighing such testimony.
2. Criminal Law.
In prosecution for selling four heroin capsules to an addict-informer where except for addict-informer's
testimony State adduced nothing to show that pills were turned over to him and received from defendant,
failure to give proper cautionary instruction concerning addict-informer's testimony worked substantial
prejudice to defendant though defendant's counsel assertedly failed to request the instruction.
OPINION
Per Curiam:
Appellant stands convicted and sentenced to 10 years in prison for selling four heroin
capsules to Verne Ray Boley, Jr., an addict-informer.
[Headnotes 1, 2]
When the State adduces testimony by an addict-informer, the defendant is entitled to
careful instructions cautioning the jury of the care which must be taken in weighing such
testimony, Crowe v. State, 84 Nev. 358, 367, 441 P.2d 90, 95 (1968); however, the trial
court omitted to give such an instruction. The State concedes Boley is about as unreliable an
addict-informer as you can have, and that this was known by the police agencies and the
district attorney. The State further concedes that, except for Boley's testimony, the State
adduced nothing to show that the pills were turned over to him and received from
Champion."
him and received from Champion. The State therefore concedes, and it could hardly do
otherwise, that a proper cautionary instruction concerning Boley's testimony was central to
the case. The State contends, however, that appellant's counsel waived his right to proper
instructions by failing to request them.
Under these exceptional circumstances, the lawyer assigned to defend him should have
requested the special cautionary instruction. We have no doubt that the District Judge in this
instance would have granted the request and given the charge. But, whether emanating from
the fault of the attorney or from judicial error, plain error occurred when [defendant] was not
accorded his right. Careful instructions', under the exceptional circumstances presented
herein, demanded a charge as to the jury's evaluation and use of the testimony of the addicted
informer. Its absence herein worked substantial prejudice to the defendant. United States v.
Griffin, 382 F.2d 823, 829 (6th Cir. 1967).
____________
87 Nev. 544, 544 (1971) A Minor v. Clark Co. Juvenile Ct. Servs.

____________
, A Minor Girl Under the Age of 18 Years of Age,
1
Appellant, v.
CLARK COUNTY JUVENILE COURT SERVICES, Respondent.
No. 6520
November 24, 1971 490 P.2d 1248
Appeal from Findings of Fact and Recommendation by H. Leon Simon, Juvenile Referee,
from Order of Approval by Howard W. Babcock, District Judge, and from Formal Probation
Order, issued by the Eighth Judicial District Court, County of Clark, sitting in Separate
Session as a Juvenile Court, John F. Mendoza, District Judge and Judge of the Juvenile
Court.
Minor was adjudged a delinquent by the district court and she appealed. The Supreme
Court, Zenoff, C. J., held that delinquency petition stating that 14-year-old child willfully and
unlawfully loitered near junior high school without legitimate reason was fatally defective for
failing to specifically apprise the minor of the charge against her where there were 2
school-oriented loitering statutes, neither of which was applicable to minor's failure to
return to class for period of 10 minutes following order of school principal, and where
there was never a charge specifically referring to statute violated, if any.
____________________

1
It is the practice of this court to omit the minor's proper name.
the minor of the charge against her where there were 2 school-oriented loitering statutes,
neither of which was applicable to minor's failure to return to class for period of 10 minutes
following order of school principal, and where there was never a charge specifically referring
to statute violated, if any.
Reversed and vacated.
Chief Deputy District Attorney, Clark County, for Respondent.
1. Infants.
Delinquency petition stating that 14-year-old child willfully and unlawfully loitered near junior high
school without legitimate reason was fatally defective for failing to specifically apprise the minor of the
charge against her where there were 2 school-oriented loitering statutes, neither of which was applicable to
minor's failure to return to class for period of 10 minutes following order of school principal, where
petition did not state facts which brought violation within either statute and where there was never a charge
specifically referring to statute violated, if any. NRS 201.090, subd. 14, 207.270, 393.070.
2. Statutes.
Title of statute may be considered in construing the statute, and if title of an act is restricted to certain
purposes, purview body of the act must also be restricted to that subject expressed in title.
3. Municipal Corporations; Statutes.
Legislative intent governs construction of a statute or ordinance and such intent must be gathered from
consideration of the entire statute or ordinance, and not from consideration of only one section thereof.
4. Schools and School Districts.
Statute making it a crime to molest any child and proscribing loitering about schools was designed to
protect school children and young people from local and itinerate sex perverts who might loiter near
schools and public places awaiting opportunity to commit their crime, and statute was inapplicable to
situation where 14-year-old junior high school student failed to return to class for period of 10 minutes
following order of school principal. NRS 201.090, subd. 14, 207.270.
5. Infants.
Statute prohibiting loitering on or near school grounds and falling under care, management and control
of school property section was not proper statute to support charge of delinquency against 14-year-old
junior high school student who had failed to return to class for 10 minutes when ordered to do
so by school principal.
to return to class for 10 minutes when ordered to do so by school principal. NRS 201.090, subd. 14,
393.070.
OPINION
The minor girl, aged 14 at the time, was a student at Garside Junior High School in Clark
County, Nevada.
On September 17, 1970, during the school term and during a break on a morning when
classes were held, the defendant encouraged students, for reasons unknown to us, not to
return to their classes following the 8:25 a.m. break. The principal of the school was able, by
threat of arrest, to cause all students except the subject minor to return to their classes.
Defendant, remaining in the school's quad area after receiving the order to return to class, was
placed under arrest for loitering by the principal. Approximately 15 minutes elapsed during
the episode, five during the break and ten during the class hour.
The minor was adjudged a delinquent under NRS 201.090, on October 21, 1970, by H.
Leon Simon, Referee in Juvenile Department of the Eighth Judicial District.
On a Motion for Rehearing, relief was denied, November 13, 1970, by John F. Mendoza,
District Judge. A Formal Probation Order was filed December 3, 1970.
The appellant here challenges the constitutionality of a loitering statute. We do not reach
this issue because the Petition to the Juvenile Court was fatally defective for lack of
specificity. We hold that the Petition does not adequately apprise the minor of the charges
against her, that it would be improper for this court to affirm as the statute alleged to have
been violated is unknown to this court, and that the school-connected loitering statutes are
inapplicable in this fact situation. Consequently, we reverse and vacate all delinquency
proceedings below.
1. The instant Petition stated [t]he facts which bring the child within the purview of this
chapter (NRS 62.130(3)(a)) as:
That the subject minor, _____________, is a minor whose behavior is injurious to her
health and welfare; in that, on September 17, 1970, at and within the County of Clark, State
of Nevada, the subject minor did then and there wilfully and unlawfully loiter at or near
Garside Junior High School, 400 South Torrey Pines Drive, Las Vegas, Clark County,
Nevada, without legitimate reason to be at leisure in such place.
The United States Supreme Court in In re Gault, 387 U.S. 1 (1967), a case reviewing state
juvenile court proceedings, held that, at 33-34,
Notice, to comply with due process requirements, must be given sufficiently in advance
of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and
it must set forth the alleged misconduct with particularity.'
. . .
The initial hearing' in the present case was a hearing on the merits. Notice at that time is
not timely; and even if there were a conceivable purpose served by the deferral proposed by
the court below, it would have to yield to the requirements that the child and his parents or
guardian be notified, in writing, of the specific charge or factual allegations to be considered
at the hearing, and that such written notice be given at the earliest practicable time, and in any
event sufficiently in advance of the hearing to permit preparation. Due process of law requires
notice of the sort we have describedthat is, notice which would be deemed constitutionally
adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a
youth's freedom and his parents' right to his custody are at stake without giving them timely
notice, in advance of the hearing, of the specific issues that they must meet. Nor, in the
circumstances of this case, can it reasonably be said that the requirement of notice was
waived. [Footnotes omitted, our emphasis.]
[Headnote 1]
The fault of the instant Petition lies in the inadequacy of the required notice of specific
charges. This fault is particularly significant in this case as there are two school-connected
loitering statutes, NRS 207.270
2
and 393.070.
3
The Petition does not state facts which bring
the violation within either statute. In re Walsh, 300 N.Y.S.2d 859 (1969).
____________________

2
207.270 Loitering about schools, public places where children congregate unlawful; penalty. Any person
who, without legitimate reason to supervise any of such children or other legitimate reason to be at leisure in
such place, loiters about any school or public place at or near which children attend or normally congregate is
guilty of a misdemeanor.

3
393.070 Damage to school property; loitering; disturbances; penalty.
1. It is unlawful for any person:
(a) Willfully and maliciously to injure, mark or deface any public schoolhouse, its fixtures, books or
appurtenances; or
(b) To commit any nuisance in any public schoolhouse; or
(c) To loiter on or near the school grounds; or
(d) Purposely and maliciously to commit any trespass upon the
In Cole v. Arkansas, 333 U.S. 196 (1948), a case in which the state supreme court affirmed
a conviction on the ground that the information charged and the evidence showed that
petitioner had violated a statute other than the one under which he was tried, the court in
reversing said, at 201:
No principle of procedural due process is more clearly established than that notice of the
specific charge, and a chance to be heard in a trial of the issue raised by that charge, if
desired, are among the constitutional rights of every accused in a criminal proceeding in all
courts, state or federal.
This holding was cited with approval in Gault, at 33, footnote 53.
2. It is our further opinion that neither of the school-oriented loitering statutes is
applicable to the fact situation presented by this appeal. The issue is whether the Legislature
intended the above statutes to be applied in the instant case.
NRS 207.270 was enacted in 1963 (1963 Stats. of Nevada, Vol. 1 at 41, amended 1967
Stats. of Nevada, Vol. 1 at 523) under the Act entitled AN ACT to amend chapter 207 of
NRS, relating to miscellaneous crimes, by adding new sections making it a crime to molest
any child under 18 years of age or to loiter about any public place frequented by children;
providing penalties; and providing other matters properly relating thereto.
NRS 393.070 was enacted in 1956 (1956 Stats. of Nevada 173 415), Article 46, under
which 415 appears is entitled, Care, Management and Control of School Property.
[Headnotes 2, 3]
In determining what the Legislature intended, the title of the statute may be considered in
construing the statute. Torreyson v. Board of Examiners, 7 Nev. 19 (1871). Further, if the title
of an act is restricted to certain purposes, the purview or body of the act must also be
restricted to that subject expressed in the title. State v. Payne, 53 Nev. 193, 295 P. 770
(1931). Finally, it is clear that legislative intent governs the construction of a statute or
ordinance and such intent must be gathered from considerations of the entire statute or
ordinance, and not from consideration of only one section thereof. Carson City v. Red Arrow
Garage, 47 Nev. 473, 225 P. 487 (1924).
____________________
grounds attached to a public schoolhouse, or any fixtures placed thereon, or any enclosure or sidewalk about the
same.
2. Any person violating any of the provisions of this section shall be guilty of a public offense, as prescribed
in NRS 193.155, proportionate to the value of the property damaged or destroyed and in no event less than a
misdemeanor.
[Headnote 4]
The first loitering statute, NRS 207.270, by its legislative history, was designed to protect
school children and young people from local and itinerate sex perverts who may loiter near
schools and public places awaiting the opportunity to commit their crime. To apply this
statute in support of a delinquency finding (NRS 201.090(14)) under the facts appearing in
this appeal would be an error of egregious proportions.
[Headnote 5]
We also find that the second loitering statute, NRS 393.070, falling under the Care,
Management and Control of School Property section is not the proper statute to support a
charge of delinquency (NRS 201.090(14)) when the act complained of consisted solely of a
student not returning to class for ten minutes when ordered to do so by the school principal.
We therefore conclude that the Petition was defective for failing to specifically apprise the
minor of the charge against her. This is so because the first reference to any loitering statute
appears in the defendant's motion before the Juvenile Referee. Nowhere appears a charge
specifically referring to the statute violated, if any. The two school-connected loitering
statutes, NRS 207.270 and 393.070, are entirely misapplied to juvenile delinquency
proceedings wherein a school student fails to return to class for a period of ten minutes on
order of the school principal.
All proceedings appealed from reversed and vacated.
____________
87 Nev. 549, 549 (1971) Petri v. Sheriff
CAROL ANN PETRI, Appellant, v. SHERIFF OF WASHOE
COUNTY, NEVADA; G. W. BELCHER, Respondents.
No. 6540
November 30, 1971 491 P.2d 43
Appeal from judgment establishing attachment priority in favor of respondent Belcher;
Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Appeal by one creditor from judgment of the district court establishing attachment priority
in favor of another creditor.
The Supreme Court Zenoff, C. J., held that debtor who voluntarily deposited certificate of
deposit with county clerk pending results of lawsuit against debtor had equitable interest in
certificate notwithstanding legal title to certificate vested in county clerk, equitable interest of
debtor in certificate was not too contingent that it could not support an attachment and
creditor whose attachment was first in point of time and whose judgment exceeded amount of
certificate was entitled to certificate.
Breen, Young, Whitehead & Hoy, of Reno, for Appellant.
Robert E. Rose, District Attorney, Washoe County, for Respondent Sheriff of Washoe
County.
Samuel B. Frankovich, of Reno, for Respondent G. W. Belcher.
1. Attachment.
Where certificate of deposit was voluntarily deposited with county clerk, without having first obtained
leave of court, pending results of lawsuit against depositor, certificate was not in custodia legis with respect
to such action and was therefore subject to attachment by creditors. NRCP 67(1).
2. Attachment.
Debtor who voluntarily deposited his certificate of deposit with county clerk pending results of lawsuit
against debtor whose funds certificate represented had equitable interest in certificate notwithstanding legal
title to certificate vested in county clerk, and that equitable interest was not too contingent that it could not
support an attachment; creditor whose attachment was first in point of time and whose judgment exceeded
amount of certificate was entitled to certificate. NRS 104.3104, subd. 2(c).
OPINION
One H. B. Jackson was sued by Frontier G. M. Diesel, Inc. While that action was pending
the First National Bank of Nevada issued a time certificate of deposit payable to the Washoe
County Clerk which was delivered to the clerk with instructions to hold the certificate in
escrow pending the results of the lawsuit. The lawsuit in fact terminated on December 11,
1968 with a stipulation of dismissal.
Carol Ann Petri commenced an action against H. B. Jackson on October 11, 1968 with a
writ of attachment of the same date.
date. She obtained a judgment exceeding the amount of certificate of deposit on September
12, 1969. On December 11, 1968 G. W. Belcher commenced an action from which a writ of
attachment issued on December 12, 1968, also against H. B. Jackson. Judgment in that case
exceeding the amount of certificate of deposit was entered on June 17, 1969.
The question presented is the priority of the Petri and Belcher attachments. The trial court
found that Belcher was entitled to the certificate of deposit on the ground that Jackson's
interest in the certificate was only contingent until the Frontier suit was dismissed and that
Belcher's writ was first in time after Jackson's rights became firm. On appeal respondent,
despite a cautionary request from this court, failed to file briefs sufficiently responding to the
issues raised by appellant. However, because the issues are important, this court will consider
them on the basis of applicable law rather than set aside the trial court's judgment for
respondent's failure to meet the problems with adequate points and authorities. (If an adequate
brief is not received within the prescribed time, the court may deem such failure as a waiver
of the right to orally argue the case, SCR 30(2), or such default may be treated as a confession
of error, the court then being entitled to reverse the judgment without considering the merits
of the appeal. Toiyabe Supply Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958).) The right to
oral argument was denied respondent here.
The appellant contends that the certificate of deposit while in the county clerk's possession
was not in custodia legis and was therefore subject to attachment. She also asserts that
Jackson's interest in the certificate of deposit was subject to attachment and that therefore her
attachment being prior in time to Belcher's should be entitled to priority.
[Headnote 1]
1. Ordinarily, absent statutory provision, Nevada having none, property in custodia legis is
not subject to attachment without leave of court. In civil actions prosecuted within this state's
jurisdiction the deposit of money in court must be made pursuant to NRCP 67(1). This rule is
as follows:
RULE 67. DEPOSIT IN COURT
(1) In an action in which any part of the relief sought is a judgment for a sum of money or
the disposition of a sum of money or the disposition of any other thing capable of delivery, a
party, upon notice to every other party, and by leave of court, may deposit with the court all or
any part of such sum or thing to be held by the clerk of the court subject to withdrawal, in
whole or in part, at any time thereafter upon order of the court.
to be held by the clerk of the court subject to withdrawal, in whole or in part, at any time
thereafter upon order of the court. [Emphasis supplied.]
Thus, in order to invoke the court's protective custody, leave must first be obtained. This
was not done here. The certificate of deposit was not in custodia legis. This is the rule
followed in California, Union Bank & Trust Co. of Los Angeles v. Los Angeles, 2
Cal.App.2d 600, 38 P.2d 442 (1935); Colver v. W. B. Scarborough Co., 73 Cal.App. 455, 238
P. 1110 (1925); Van Orden v. Golden West Credit and Adjustment Co., 122 Cal.App. 132, 9
P.2d 572 (1932), and by the majority of other jurisdictions (see, Annot., Funds Deposited in
Court as Subject of Garnishment, 1 A.L.R.3d 936, 946-47, 7 (1965)).
Since the certificate of deposit was voluntarily deposited with the Washoe County Clerk
pending the results of the Frontier lawsuit the certificate was never within the custody of the
court with respect to that action. Therefore, it was not immune from attachment.
[Headnote 2]
2. All of the parties admit that the certificate of deposit represented monies of H. B.
Jackson. A certificate of deposit is in effect a promissory note and has the same force and
effect as a promissory note. Jensen v. Wilslef, 36 Nev. 37, 132 P. 16 (1913); also NRS
104.3104(2)(c). In the instant case legal title to the certificate vested in the county clerk but
an equitable interest remained in Jackson as the person whose funds the certificate
represented. The trial court found that the equitable interest of Jackson was too contingent to
support an attachment. That court relied upon Reinhart v. Hardesty, 17 Nev. 141, 30 P. 694
(1882), which case concerned the attachment of future crops. The examples utilized by the
court in Reinhart related to ocean voyages, seamen's future whaling wages and cargo shippers'
contracts. Those examples of contingencies are considerably dissimilar to the $1,875.00
certificate deposited in escrow with the county clerk pending the outcome of specified
litigation.
Not every contingency prevents a garnishment. Luigi v. Luchesi, 12 Nev. 306 (1877). In
another connection this court in Grouse Cr. Ranches v. Budget Financial Corp., 87 Nev. 419,
488 P.2d 917 (1971), said, at 925, It is well-established that even though property may be
subject to a pledge agreement it may be reached by timely garnishment. [Multiple citations
omitted.]
It seems clear from our view that Jackson's interest in the certificate of deposit could be
attached by Petri and any other creditors, such as Belcher, the only issue being which has
priority.
certificate of deposit could be attached by Petri and any other creditors, such as Belcher, the
only issue being which has priority. The trial court correctly ruled relative to priorities that as
between successive attachments of the same property, the one which is earlier in point of time
is entitled to priority, irrespective of the time when judgments are recovered in the attachment
suits and without regard to which of the two suits was first instituted. The trial court erred
when it failed to apply this rule to Jackson's interest. Bass v. Stodd, 357 F.2d 458, 465-66
(9th Cir. 1966); Metcalf Brothers & Co. v. Barker, 187 U.S. 165, 172 (1902); Humbley & Co.
v. H. W. White & Co., 133 S.E. 399 (N.C. 1926); Great Falls Transfer & Storage Co. v. Pan
Am. Petroleum Corp., 353 F.2d 348 (10th Cir. 1965).
Petri's writ of attachment being issued first in point of time is therefore prior in effect.
Reversed and remanded for proceedings consistent with this opinion.
____________
87 Nev. 553, 553 (1971) Hernandez v. State
FLORENCIO P. HERNANDEZ, Appellant, v. THE
No. 6438
November 30, 1971 490 P.2d 1245
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Defendant was convicted before the district court of robbery and he appealed. The
Supreme Court, Batjer, J., held that failure, at trial, to present photographs from which
defendant had been identified by victim was not fatal to state's case where there was no
indication of any unfairness or impermissible suggestiveness at photographic identification
and victim's in-court identification was based upon her opportunity to carefully observe
defendant at scene of crime.
Affirmed.
Robert G. Legakes, Public Defender, Jeffrey D. Sobel and Thomas D. Beatty, Deputy
Public Defenders, Clark County, for Appellant.
Where witness testified that officers made no statement at time of photographic identification to
encourage her to identify a suspect, officer testified that photographs which were used for identification
purposes were chosen because they were all of individuals of same nationality, that photographs pictured
subjects from waist up and all subjects had similar facial features and characteristics and witness was
unfamiliar with defendant's name at time of photographic identification, photographic line-up did not deny
defendant due process even though subjects' names were on front of photographs.
Where robbery victim's in-court identification of defendant had an independent origin, defendant was not
denied due process even if photographic line-up had been conducted improperly.
3. Criminal Law.
It is the duty of the state to preserve photographs used for identification purposes to guard against
misidentification leading to untrustworthy in-court identification and to ensure that police make no
impermissible suggestions or arrangements of photographs.
4. Witnesses.
A defendant's right to cross-examination regarding a photographic identification is effectively precluded
if photographs are not available at trial.
5. Criminal Law.
State's failure to present at trial photographs from which robbery victim had identified defendant was not
fatal to state's case where there was no indication of any unfairness or impermissive suggestiveness at
photographic identification and victim's in-court identification of defendant was based upon her
opportunity to carefully observe him at scene of crime.
6. Criminal Law.
Trial judge must be extremely careful of his actions and utterances due to profound effect they can have
upon members of jury.
7. Criminal Law.
Trial judge's questioning of witness in presence of jury concerning her identification of defendant was
permissible procedure where questions were merely repetitive of those asked by counsel, no new avenues
were opened by questioning, responses to questions were repetitive, there was no attempt to mislead jury or
prejudice either party and trial judge did not exhibit any partiality.
OPINION
A jury found Florencio Hernandez guilty of robbery and he was sentenced to eight years
imprisonment. He appeals from that judgment and asserts a new trial must be granted
because he was denied due process of law.
that judgment and asserts a new trial must be granted because he was denied due process of
law. Finding no violation of due process, we affirm.
Miss Marie Offord was working as a night auditor at the Hyatt Lodge in Las Vegas,
Nevada, in the early morning of September 21, 1969. At approximately 1:30 a.m. a man later
identified as Hernandez entered the motel office and asked Miss Offord about
accommodations.
At that time Hernandez stated he was waiting for friends who were attempting to cash
traveler's checks at a nearby hotel.
After waiting about fifteen minutes he left. Later, at approximately 2:50 a.m., Hernandez
returned, stated he was still waiting for his friends, and suddenly he jumped over the counter
and placed a revolver at Miss Offord's ribs stating: This is a stick-up. Upon the robber's
command, Miss Offord opened the cash drawer and was then forced into a back room where
she was struck over the head. When she returned from the back room, she found the cash
drawer empty and the robber gone.
Shortly after the robbery the victim was shown two books of mug shots, but she failed to
identify a suspect. She was also shown small groups of photographs on several occasions
during the following weeks, but again no identification was made. In early October
Hernandez was implicated in this crime by his roommate, and this led the police to take
another group of photographs to Miss Offord's home. Apparently only three photographs
were shown the victim at this time; she immediately identified the one of Hernandez as that
of the man who had robbed her. These photographs were not preserved for trial.
During appellant's trial, the court questioned Miss Offord in the presence of the jury. This
questioning by the court occurred after both the prosecution and the defense had concluded
their examination of this witness.
Hernandez asserts his due process rights were violated and a new trial must be granted
because: (1) The photographic line-up was impermissibly suggestive, and the state failed to
preserve the group of photographs from which the identification was made, and; (2) the trial
judge acted in an improper manner and to the prejudice of the appellant when he propounded
questions from the bench to the witness in the presence of the jury.
[Headnote 1]
1. The assertion that the photographic line-up was impermissibly suggestive is not
supported by the evidence. The victim testified that the officers made no statement at the
time of the identification in an effort to encourage her to identify a suspect.
testified that the officers made no statement at the time of the identification in an effort to
encourage her to identify a suspect. Although Miss Offord could not clearly recall the
likeness of any photograph shown her other than the one of Hernandez, the officer testified
that the photographs were chosen because they were all of individuals of the same nationality.
He also stated that they all pictured the subjects from the waist up and all had similar facial
features and characteristics. The photographs did have the subjects' names on the front, but at
the time of the identification the name Florencio Hernandez was totally unfamiliar to the
witness. This photographic line-up was similar to one approved by this court in Thompson v.
State, 85 Nev. 134, 451 P.2d 704 (1969), where we said, at 140, that: Although we do not
have all of the photographs used at the police station when appellant was identified, the
witnesses did testify that all were similar, were of persons of the same race and size, that the
police officers imposed no suggestive influence, and that their opportunity for observation of
the robber was very extensive. Thus we hold that there is no very substantial likelihood of
irreparable misidentification. Therefore there was no denial of due process of law.
[Headnote 2]
The record does not indicate that this photographic identification was ever relied upon by
Miss Offord for her in-court identification. In fact, the record clearly shows that the critical
in-court identification had a solid independent origin. Thompson v. State, supra. The victim
had been within several feet of Hernandez for nearly twenty minutes during the morning of
the robbery, and she testified at the trial that this observation was the basis for her in-court
identification. Since the in-court identification had a solid independent origin, there was no
denial of due process even if the photographic line-up was improperly conducted. Carmichel
v. State, 86 Nev. 205, 467 P.2d 108 (1970); Thompson v. State, supra.
[Headnotes 3-5]
Hernandez further asserts that a new trial is mandated by the fact that the photographs used
for the identification were not preserved for trial. While we do not accept the appellant's
contention, we again emphasize, as we did in Thompson v. State, supra, that it is the duty of
the state to preserve photographs used for identification purposes. This is necessary to guard
against misidentification leading to untrustworthy in-court identification, and to ensure that
the police make no impermissive suggestions or arrangements of the photographs.
identification, and to ensure that the police make no impermissive suggestions or
arrangements of the photographs. A defendant's right to cross-examination regarding a
photographic identification is effectively precluded if the photographs are not available. The
failure to present the photographs at trial in the instant matter was not fatal to the state's case
because there was no indication of any unfairness or impermissive suggestions at the
photographic identification, and the in-court identification was based upon the victim's
opportunity to carefully observe the appellant at the scene of the crime. Simmons v. United
States, 390 U.S. 377 (1968); Stovall v. Denno, 388 U.S. 293 (1967); Carmichel v. State,
supra; Thompson v. State, supra.
2. In addition to the above assertions, Hernandez contends that a new trial must be granted
because of the trial court's questioning of the witness, Miss Offord. We find no error on the
part of the trial court.
Miss Offord was subjected to full examination and cross-examination by the state and the
prosecution, and upon the conclusion of that questioning the court asked the following
questions:
The Court: Mrs. [sic] Offord, you have testified concerning the events of the morning of
September 21, 1969. Are you able to identify the person that came into the lobby that evening
at or about 1:30, and two times thereafter?
The Witness: Yes, sir.
The Court: Where is he?
The Witness: Sitting over next to Mr. Sobel with the white shirt on.
The Court: What is the basis of your identification at this time?
The Witness: I remember seeing him in the lobby that night. I know he is the man that
robbed me and hit me and beat me, or whatever you want to call it. I have no hestitation [sic]
about that at all.
[Headnotes 6, 7]
A trial judge must be extremely careful of his actions and utterances due to the profound
effect they can have upon the members of the jury. Peterson v. Silver Peak, 37 Nev. 117, 140
P. 519 (1914). In the instant case the questions asked by the court were merely repetitive of
those asked by counsel; no new avenues were opened by this questioning. The responses to
these questions were also repetitive. There was no attempt by the trial judge "to mislead the
jury or prejudice either party" {Peterson v. Silver Peak, supra at 122), nor did he exhibit
any partiality {Kinna v.
the trial judge to mislead the jury or prejudice either party (Peterson v. Silver Peak, supra at
122), nor did he exhibit any partiality (Kinna v. State, 84 Nev. 642, 647, 447 P.2d 32, 35
(1968)). The trial judge apparently felt impelled to make certain that the witness's
identification of the appellant was based upon her observations at the scene of the crime. This
was permissible procedure.
Affirmed.
____________
87 Nev. 558, 558 (1971) Sherman Gardens Co. v. Longley
SHERMAN GARDENS COMPANY, a Copartnership Consisting of ROBERT J. GORDON
and DICK Y. NAKAMURA, and FIREMAN'S FUND INSURANCE COMPANY, a
California Corporation, Appellants and Cross-Respondents, v. TED CONNER LONGLEY,
as Receiver of ROBERT A. PIERCE CO., a Dissolved Nevada Corporation, Respondent and
Cross-Appellant.
No. 6485
December 1, 1971 491 P.2d 48
Appeal from decision of the Eighth Judicial District Court, Clark County, granting
judgment to the subcontractor in an action to foreclose a mechanic's lien; cross-appeal from
order of the Eighth Judicial District Court, Clark County, amending the judgment by deleting
$20,000 from the recovery; Howard W. Babcock, Judge.
Action by sub-subcontractor to foreclose mechanic's lien. The district court rendered
judgment for owner and others, and sub-subcontractor appealed. The Supreme Court, 82 Nev.
395, 419 P.2d 781 (1966), reversed in part and remanded for new trial. Following remand, the
district court granted judgment in favor of sub-subcontractor, and owner appealed. The
Supreme Court, Gang, D. J., held that sub-subcontractor who performs work on more than
one job for a contractor has burden of ascertaining correct source of payment received from
contractor who in turn has received payment from owner before he may place a mechanic's
lien upon an owner's property, and owner could not be compelled to pay twice by virtue of
fact that sub-subcontractor, who had performed work for subcontractor other than on
owner's property and who was paid by subcontractor who in turn had been paid by
owner, credited payment to an account other than owner's.
fact that sub-subcontractor, who had performed work for subcontractor other than on owner's
property and who was paid by subcontractor who in turn had been paid by owner, credited
payment to an account other than owner's.
Affirmed.
[Rehearing denied January 7, 1972]
Morse, Foley & Wadsworth, of Las Vegas, for Appellants and Cross-Respondents.
Morton Galane, of Las Vegas, for Respondent and Cross-Appellant.
1. Mechanics' Liens.
In mechanic's lien action, finding that subcontractor did not intentionally overstate amount of lien was not
clearly erroneous and would not be set aside on appeal. NRS 108.229, subd. 1.
Supreme Court will not disturb findings of the trial court where evidence is conflicting.
Trier of fact is judge of credibility of a witness, and findings of fact will not be set aside unless they are
clearly erroneous. NRCP 52(a).
Owner's claim that mechanic's lien foreclosure action was improperly commenced, since corporate
sub-subcontractor bringing action had been dissolved prior to first trial of action, could not be raised on
second appeal following remand, where question was raised and adjudicated on first appeal. NRS
78.585, subd. 1.
Surety bond which was posted by owner in sub-subcontractor's mechanic's lien foreclosure action in
substitution of mechanic's lien and which specifically provided that bond was to remain in full force and
effect in event surety did not pay any judgment which might be rendered in favor of sub-subcontractor was
not exonerated by virtue of fact that sub-subcontractor failed to post supersedeas bond on the appeal after
losing first trial and appealing, following which sub-subcontractor on second trial recovered judgment,
since, pursuant to its conditions, bond remained in full force and effect until sub-subcontractor's judgment
was paid. NRS 108.2391; NRCP 62, 73(d).
6. Interest; Mechanics' Liens.
Where no offer of judgment was made, no deposit made with court, and no formal tender made by owner
to sub-subcontractor who brought mechanic's lien foreclosure action, tender of an amount in settlement,
which did not make it clear that sub-subcontractor could accept it without impairing its claim for larger
amount, did not negate sub-subcontractor's right to attorneys' fees and interest on principal amount due and
owing, even if offer was in excess of principal amount of judgment subsequently entered.
in excess of principal amount of judgment subsequently entered. NRCP 67, 68.
Where issue of true amount owing to sub-subcontractor from subcontractor was not considered on first
appeal by sub-subcontractor in its mechanic's lien foreclosure action, determination of issue did not
therefore become law of case and bind lower court on remand; decision to decrease amount awarded in
judgment upon theory that law of the case under holding on first appeal demanded such a ruling was
error.
Sub-subcontractor who performs work on more than one job for a subcontractor has burden of
ascertaining correct source of payment received from subcontractor who in turn has received payment from
owner before he may place a mechanic's lien upon an owner's property, and owner could not be compelled
to pay twice by virtue of fact that sub-subcontractor, who had performed work for subcontractor other than
on owner's property and who was paid by subcontractor who in turn had been paid by owner, credited
payment to an account other than owner's.
OPINION
By the Court, Gang, D. J.:
This is an action to foreclose a mechanic's lien and is before this Court for the second time.
In the first trial, the lower court rendered a judgment for the owner and others, and the
subcontractor appealed. We reversed and remanded for a new trial based upon the lower
court's error in excluding evidence. Upon retrial, the lower court found for the subcontractor
and awarded judgment in the following amounts: $40,630 on the subcontract, $4,744.34 for
extras, $20,499.43 interest from February 4, 1963, at 7 percent, and $8,300 attorneys' fees. A
motion for a new trial and to amend the findings of fact and conclusions of law followed,
resulting in the lower court's deleting $20,000 from the judgment and proportionately
reducing the interest, upon the theory that the law of the case of our first holding demanded
such a ruling.
Factually, the case is not difficult to present. In 1962, Robert J. Gordon was a partner in
Sherman Gardens Co., and was the principal stockholder in Robert J. Gordon Construction
Co., which had the contract with Sherman Gardens Co. for the construction of apartments.
Robert J. Gordon Construction Co. granted a subcontract to Allied Corporation for lathing
and plastering. Allied Corporation had a sub-subcontract with Robert A. Pierce Co., which
was to perform the lathing portion of the work. Robert A. Pierce Co. performed work for
Allied Corporation, on jobs of Allied, other than just the Sherman Gardens job.
work for Allied Corporation, on jobs of Allied, other than just the Sherman Gardens job.
Throughout this opinion, the sub-subcontractor (respondent herein) will be referred to as
Pierce, and the owner (appellant herein) will be referred to as Sherman Gardens.
On February 20, 1963, Allied received a progress payment of $47,500 from Robert J.
Gordon Construction Co. Allied in turn paid Pierce $20,000 from these funds. The record
clearly reflects that the source of the $20,000 payment from Allied to Pierce was from
Sherman Gardens; this is undisputed at this time by Pierce. At the time of the payment, Pierce
claimed not to have had knowledge as to the source of the $20,000 payment.
Pierce credited the $20,000 payment to jobs of Allied upon which it was performing work,
other than the Sherman Gardens apartments. Allied ran into financial difficulty and, on May
1, 1963, Pierce perfected its mechanic's lien in the amount of $45,374.24 on the owner's
property, to wit, Sherman Gardens. Thereafter, Fireman's Fund Insurance Company posted a
security bond in substitution of the lien. Suit was filed on October 28, 1963. Allied failed to
answer the complaint, and a default judgment was entered on July 30, 1965. Since the
plaintiff was a dissolved Nevada corporation (it was dissolved one month prior to suit being
filed), the lower court appointed a receiver to continue the litigation. This appointment was
affirmed by us in the first appeal of the lawsuit. Robert A. Pierce Co. v. Sherman Gardens, 82
Nev. 395, 419 P.2d 781 (1966).
Sherman Gardens appeals from the second trial of this case, claiming that the lower court
erred in entering judgment for any amount in favor of Pierce, since Pierce intentionally, and
with intent to defraud, materially overstated its lien. Pierce cross-appealed claiming that the
lower court erred when it reduced the judgment by $20,000 and reduced the interest
correspondingly.
THE APPEAL
Appellant, Sherman Gardens Co., et al., specifies five issues to be decided by this Court:
(a) Although the evidence is in conflict, is the evidence sufficient to show that plaintiff has
intentionally overstated the amount of the lien in a material amount to vitiate the lien?
(b) Does the evidence support the allowance of $4,744.34 in extras?
(c) Was the action properly commenced by plaintiff in that prior to commencing the action
plaintiff was voluntarily dissolved? {d) Was the bond {of the surety company), exonerated
by the judgment filed July 16, 1965, in any manner reinstated in the absence of posting of
a supersedeas bond by the plaintiff in the first appeal?
(d) Was the bond (of the surety company), exonerated by the judgment filed July 16, 1965,
in any manner reinstated in the absence of posting of a supersedeas bond by the plaintiff in
the first appeal?
(e) Does the offer to settle the litigation for a sum in excess of the principal amount of the
judgment subsequently entered negate a right to interest and attorneys' fees on the principal
amount due and owing?
[Headnotes 1-3]
The appellant, Sherman Gardens, acknowledges that the evidence is in conflict, but argues
that the evidence is sufficient to show that plaintiff has intentionally overstated the amount of
the lien. The lower court did not so find. If this had been true, then, pursuant to NRS
108.100(1),
1
the lien could have been defeated in its entirety. We have held in the past, and
reemphasize in this case by this decision, that we will not disturb findings of a trial court
where the evidence is conflicting. See Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971). The
trier of the fact judges the credibility of the witness, and the findings of fact will not be set
aside unless they are clearly erroneous. NRCP 52(a); McMillan v. Torre, 84 Nev. 556, 445
P.2d 160 (1968). The lower court's finding that Pierce did not intentionally overstate its lien is
supported by the evidence, and is not clearly erroneous.
Appellant's second claim of error is also without merit. Evidence in the record clearly
supports the lower court's determination of the sum due for extras.
[Headnote 4]
Appellant's claim that the action was improperly commenced, since the corporation was
dissolved prior to the first trial of the action, cannot be raised at this late date. Our decision in
Robert Pierce Co. v. Sherman Gardens, supra, specifically affirmed the appointment by the
lower court of a receiver to continue the action.
2
Included in that determination is the
necessary finding that the action was properly before the Court on the first trial.
____________________

1
NRS 108.100(1) was amended in 1965. It is now NRS 108.229(1). The substance of the statute remains
unchanged and is as follows:
Upon the trial of any action or suit to foreclose such lien, no variance between the lien and the proof shall
defeat the lien or be deemed material unless the same results from fraud or is made intentionally, or has misled
the adverse party to his prejudice, but in all cases of immaterial variance the claim of lien may be amended, by
amendment duly recorded, to conform to the proof.

2
NRS 78.585(1) specifically authorizes the continuation of a dissolved corporation for purposes of
prosecuting and defending lawsuits:
All corporations, whether they expire by their own limitation, or
is the necessary finding that the action was properly before the Court on the first trial.
After a case is remanded, the Court on the second appeal will not consider those questions
adjudicated on the first appeal.
The decision (on the first appeal) is the law of the case, not only binding on the parties
and their privies, but on the court below and on this court itself. A ruling of an appellate court
upon a point distinctly made upon a previous appeal is, in all subsequent proceedings in the
same case upon substantially the same facts, a final adjudication, from the consequences of
which the court cannot depart. The supreme court has no power to review its own judgments
in the same case, except upon petition for rehearing, in accordance with the rules established
for the purpose. Wright v. Carson Water Co., 22 Nev. 304, 308, 39 P. 872, 873-874 (1895).
[Headnote 5]
Appellant's claim that the surety bond, which was posted to discharge the lien, was
exhausted because Robert Pierce Co. failed to post a supersedeas bond after losing the first
trial and appealing, is without merit. Robert A. Pierce Co. lost the first trial. Judgment was
entered entitling it to no recovery and awarding costs and attorneys' fees to Sherman
Gardens, the appellant herein. Pierce posted a supersedeas bond to stay enforcement of the
award of costs and attorneys' fees against it. NRCP, Rule 62, provides that the giving of a
supersedeas bond stays proceedings to enforce a judgment. The purpose of a supersedeas
bond is to stay the enforcement of a judgment. NRCP, Rule 73(d); Malo v. Anderson, 454
P.2d 828 (Wash. 1969); Caplow v. Dist. Court, 72 Nev. 265, 302 P.2d 755 (1956). It is
indeed unique to argue that the loser in a trial (plaintiff below) must post a supersedeas bond
on the appeal in order to stay the release of a surety which was posted by the defendant in the
action in substitution of a mechanic's lien. By filing the foregoing bond, the surety agrees to
pay the lien claimant the amount a court of competent jurisdiction may adjudge to have been
secured by the lien, with interest, costs, and attorneys' fees.
____________________
are otherwise dissolved, or whose charter has been forfeited, shall nevertheless be continued as bodies corporate
for the purpose of prosecuting and defending suits, actions, proceedings and claims of any kind or character by
or against them, and of enabling them gradually to settle and close their business, to collect and discharge
obligations, to dispose of and convey their property, and to distribute their assets, but not for the purpose of
continuing the business for which the corporation shall have been established.
and attorneys' fees. NRS 108.210.
3
The proper perfection of the appeal stays the release of
the surety. The surety bond filed to discharge Pierce's mechanic's lien specifically provided:
The condition of this obligation is such that if the above principal and surety, their
executors, administrators and assigns, shall well and truly pay any judgment which may be
rendered in favor of Robert A. Pierce Co., a Nevada corporation, on its claim contained in its
notice and claim of lien not exceeding the sum of $55,000, then this obligation to be void;
otherwise to remain in full force and effect. As indicated earlier in this opinion, Pierce
recovered judgment in the court below. Pursuant to the conditions of Sherman Gardens' bond,
it remains in full force and effect until Pierce's judgment is paid.
[Headnote 6]
Appellant's final contention that its purported offer to settle the litigation should negate an
award of interest and attorneys' fees is also without merit.
No offer of judgment was made as contemplated by NRCP, Rule 68, nor was a deposit
made with the court as allowed by NRCP, Rule 67. Sherman Gardens had indicated a
willingness to pay to Pierce the sum of $27,000, which represented the retentions it had
withheld from Allied, if Pierce would release its mechanic's lien. A formal tender of the
foregoing amount was never made by Sherman Gardens. Under these circumstances, a tender
of an amount in settlement of a dispute, which does not make it clear that the recipient
accepts it without impairing his claim for a larger amount, does not stop the running of
interest even if the judgment does not exceed the amount of the offer. United States v.
Fogarty, 344 F.2d 475 (6th Cir. 1965); Grant v. Auvil, 238 P.2d 393 (Wash. 1951).
THE CROSS-APPEAL
[Headnote 7]
The lower court, after hearing the appellant's motion to amend the findings of fact and
conclusions of law, decreased the amount of the judgment by $20,000 and the interest
proportionately. The judge reasoned that, since a default judgment was entered against Allied
at the conclusion of the first trial (Allied was not represented by counsel and did not
participate in the litigation) for the sum of $15,374.34, and that since there was no appeal
from the default judgment, it had been decided by this Court in the first appeal that
$25,374.34 was the true sum owing to Pierce from any of the defendants, and this
determination became binding on the trial court as the "law of the case."
____________________

3
This statute has been amended in 1965 and is presently NRS 108.2391. The substance of the statute remains
unchanged.
there was no appeal from the default judgment, it had been decided by this Court in the first
appeal that $25,374.34 was the true sum owing to Pierce from any of the defendants, and this
determination became binding on the trial court as the law of the case.
It cannot be implied from the previous opinion that we considered the issue of the true
amount owing to Pierce from Allied. That issue was not before us on the first appeal and,
since it was unnecessary to consider the issue in reaching our decision, one cannot imply that
it was considered.
All the propositions assumed by the court to be within the case, and all questions
presented and considered, and deliberately decided by the court, leading up to the final
conclusion reached, are as effectually passed upon as the ultimate questions solved [citation].
The judgment is authority upon all points assumed to be within the issues which the record
shows the court deliberately considered and decided in reaching it. State of Nevada v.
Loveless, 62 Nev. 312, 319, 150 P.2d 1015, 1018 (1944). (Emphasis supplied.) Absent the
necessary implication that an issue was presented, considered, and deliberately decided, it
does not become the law of the case and therefore does not bind the lower court on a remand.
Lanigir v. Arden, 85 Nev. 79, 450 P.2d 148 (1969).
[Headnote 8]
The decision, however, of the lower court to delete $20,000 from the judgment and to
reduce the interest correspondingly, is affirmed, based upon a different theory.
There is a split of authority in the United States on the issue of whether an owner who pays
a contractor, who in turn uses this money to pay a subcontractor, can be compelled to pay
twice, when the subcontractor credits the money to an account other than the owner's and
brings suit against the owner to foreclose a lien. The better reasoned cases hold that the owner
cannot be compelled to pay twice. The principles of justice and equity demand such a
decision. Williams v. Willingham-Tift Lumber Co., 63 S.E. 584 (Ga.App. 1909).
It was pointed out in an early California case that:
All payments made by the owner of a building to his contractor, and those made by the
contractor to a material-man for materials furnished to be used in a building, should be
applied in satisfaction of the original contract. Neither the contractor, nor a material-man, nor
workman upon a building, can legally apply any portion of such payments to the satisfaction
of general debts or demands existing between himself and others who may be entitled to file
liens upon the building against the owner.
may be entitled to file liens upon the building against the owner. If that could be done, it
would have the effect of subjecting the owner to payment of other debts between the
contractor and his employees, outside of his building contract. Goss v. Strelitz, 54 Cal. 640,
645 (Cal. 1880), concurring opinion.
The leading case in the United States following the theory we enunciate today is Sioux
City Foundry and Mfg. Co. v. Merten, 156 N.W. 367 (Iowa 1916), wherein the court held:
We hold the money of the owners was misappropriated, and that equity will correct this
against the one who did the misappropriating, even if he did not know at the time that he was
misappropriating, when no controlling equity stands in the way of the correction. We hold
further that none such intervenes where the materialman loses, if at all, because he
volunteered to use the money of one to pay the debt of another; while, on the other hand, the
owners will, through an act of the materialman, be compelled to pay their debt to him
twicewhen on one side stands one who received $300 and credited some debtor of his in
that amount, and, on the other, one who has paid $300 at a time when he owed it, and is now
to pay it again, because the money was used to credit another debtor. 156 N.W., at 372.
The factual circumstances in the case of Dearth v. Robinson, 80 Nev. 272, 392 P.2d 512
(1964), are directly in point with those presented in the case at bar, and our decision in that
case supports the decision we reach today. We pointed out in Dearth:
We can perceive no undue hardship upon lien claimants by requiring them to keep
appropriate records in support of their claims of lien. 80 Nev., at 278. The lower court
specifically found that at the time of the $20,000 payment Pierce did not know the source of
the payment. Pierce discovered the source at a later time. When a subcontractor performs
work on more than one job for a contractor, cases in other jurisdictions impose upon the
subcontractor the burden of ascertaining the correct source of the payment, before he can
place a mechanic's lien upon an owner's property. Williams v. Willingham-Tift Lumber Co.,
supra; Westwood Building Materials Co. v. Valdez, 322 P.2d 79 (Cal.App. 1958). In a
three-party situation, we do not feel that the imposition of this burden upon a subcontractor is
too onerous a requirement in order that the subcontractor be entitled to perfect a lien upon an
owner's property. The general rule that a creditor has the right, in the absence of direction by
his debtor, to apply a payment on account, is a rule between creditor and debtor, and does
not apply where the money is received by the debtor from a third party.
account, is a rule between creditor and debtor, and does not apply where the money is
received by the debtor from a third party. LRA 1916 D. 1258.
4

In the case at bar, the owner, Sherman Gardens, retained $27,000 from the final payment
to Allied, the contractor with whom Pierce had its contract. In reducing the judgment, the
lower court found Sherman Gardens was obligated to pay the principal amount of $25,374.34,
which is less than the sum Sherman Gardens retained from Allied.
For the reasons indicated in this opinion, we affirm.
____________________

4
The case of Titus v. Electric Supply Co., 45 P.2d 515 (Okla. 1935), which supports the view contrary to our
holding today, claims in a note to the decision that it represents the majority view. Our research indicates that if
there is a majority view it is the one we enunciate today. The cases supporting one theory or the other often are
decided on the basis of the knowledge of the subcontractor, at the time of the payment, of the source of the
payment. We feel those cases are not in point, since we hold that the subcontractor has the burden of
ascertaining the source of the payment in order to perfect his lien.
____________
87 Nev. 567, 567 (1971) Fox v. State
ANTHONY FOX, Appellant, v. THE STATE
No. 6455
December 2, 1971 491 P.2d 35
Appeal from judgment of conviction for sale of narcotics entered in Eighth Judicial
District Court, Clark County; William R. Morse, Judge.
Defendant was convicted in the district court of unlawful sale of narcotics and he
appealed. The Supreme Court, Mowbray, J., held that where defense counsel was given wide
latitude in cross-examination of witness, an admitted heroin addict who was allegedly under
influence of heroin at time of trial, and where judge also gave cautionary instruction to jury
regarding credibility and weight to be given testimony of an informer or an addict, refusal to
order physical examination of witness to determine whether he was under influence of heroin
and admission of witness' testimony did not constitute abuse of discretion.
Affirmed.
87 Nev. 567, 568 (1971) Fox v. State
Robert G. Legakes, Public Defender, Clark County, for Appellant.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney and
1. Criminal Law.
Admissibility of testimony by an admitted heroin addict who was allegedly under influence of heroin
at time of trial of defendant for unlawful sale of narcotics was not reviewable on appeal where defendant
failed to challenge witness' testimony by proper motion during trial.
2. Witnesses.
When competency of any witness has been questioned, it is within discretion of trial court to consider
facts relative to qualification and to determine if such person is competent to testify. NRS 175.221,
subd. 2.
3. Witnesses.
Where defense counsel was given wide latitude in cross-examination of witness, an admitted heroin
addict who was allegedly under influence of heroin at time of trial, and where judge also gave cautionary
instruction to jury regarding credibility and weight to be given testimony of an informer or an addict,
refusal to order physical examination of witness to determine whether he was under influence of heroin
and admission of witness' testimony against defendant charged with unlawful sale of narcotics did not
constitute abuse of discretion. NRS 175.221, subd. 2.
OPINION
A jury found Appellant Anthony Fox guilty of the unlawful sale of narcotics. He seeks
reversal of his judgment of conviction on the ground that the State's two leading
witnessesVerne Ray Boley, Jr., and his wife, Reiane Boleyare heroin addicts and that
they were under the influence of heroin when they gave their testimony to the jury. The sole
specification of error reads:
The testimony of the two key witnesses was incompetent and inadmissible because they
were admitted heroin addicts and because they were under the influence of heroin at the time
of trial.
[Headnote 1]
Fox failed, however, to challenge, by proper motion during the trial, Reiane's testimony.
The appeal is therefore limited to a determination of whether the district judge committed
reversible error in permitting Verne's testimony to stand.
87 Nev. 567, 569 (1971) Fox v. State
reversible error in permitting Verne's testimony to stand. Cross v. State, 85 Nev. 580, 460
P.2d 151 (1969); Cranford v. State, 76 Nev. 113, 349 P.2d 1051 (1960).
Verne Ray Boley, Jr., has a long history of narcotics addiction that stretches over a period
of 10 or 11 years. In his testimony before the jury, Boley admitted taking heroin at the scene
of the controlled purchase that was the basis for the State's charge against Appellant Fox.
Boley also admitted taking heroin the evening prior to the day he gave his testimony before
the jury. He claimed, however, that he had no remaining effect from the heroin at the time he
testified. At this point in the trial, appellant's counsel moved the court to strike Boley's
testimony as being incompetent because Boley was under the influence of heroin. The jury
was properly excused, and the court examined the witness, Boley, who stated that, while he
had some difficulty with times and dates, he remembered the sale in question. During this
examination, appellant's counsel asked the court for an order requiring the witness to submit
to a physical examination by a physician to determine whether Boley was under the influence
of heroin. After extensive examination by counsel and the district judge, the motion to strike
Boley's testimony was denied, and also the motion seeking his physical examination.
Questions of the competency of witnesses in criminal trials must be determined in
accordance with the general principle enunciated in NRS 175.221, subsection 2:
The admissibility of evidence and the competency and privileges of witnesses shall be
governed, except when otherwise provided by statute, by the principles of the common law as
they may be interpreted by the courts of the State of Nevada in the light of reason and
experience.
[Headnote 2]
As this court said in Shuff v. State, 86 Nev. 736, 738, 476 P.2d 22, 24 (1970):
When the competency of any witness has been questioned, it is within the discretion of
the trial court to consider factors relative to qualification and to determine if such person is
competent to testify.
In Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968), this court held that the testimony of a
single police informer was sufficient to sustain a conviction for the sale of narcotics. The
court, in so holding, ruled that reliance upon the testimony of the informer, who was also a
narcotics user, was a matter of credibility and thus within the province of the jury. In Lujan v.
State, 85 Nev. 16, 18, 449 P.2d 244, 245 (1969), we held: ". . . Even if Alexander were an
addict, which the lower court found he was not, the uncorroborated testimony of one
addict, if believed by the jury, will sustain a conviction.
87 Nev. 567, 570 (1971) Fox v. State
. . . Even if Alexander were an addict, which the lower court found he was not, the
uncorroborated testimony of one addict, if believed by the jury, will sustain a conviction.
[Citations omitted.]
A witness cannot be excluded on the ground that he is a drug addict unless it appears that
he was so under the influence of a drug that he was not able to observe what occurred or that
his intellect was unbalanced. (Footnote omitted.) 3 Wharton Cr. Evid. 758 (12th ed. 1955).
While this court has not ruled on the admissibility of the testimony of an addict-witness
who is found to be under the influence of narcotics when testifying, other jurisdictions have
considered the problem. In State v. White, 39 P. 160, 161 (Wash. 1895), the Supreme Court
of Washington considered the testimony of a witness who was a confessed opium consumer,
who admitted that he was under the influence of opium both at the time of the occurrences to
which he testified, and when he was on the witness stand. The court approved the admission
by the trial court of the witness's testimony, noting, however, that such testimony was
unreliable and that juries should be carefully cautioned regarding the credence to be given
such testimony.
In State v. Ballesteros, 413 P.2d 739 (Ariz. 1966), the appellant, who had been convicted
of the illegal sale of narcotics, appealed on the ground that the trial court erred in failing to
require the witness, an admitted addict, to undergo a chemical test to determine whether he
was under the influence of narcotics at the time of trial. In that case, the court ruled, 413 P.2d
at 741, that being under the influence of narcotics does not necessarily disqualify a witness
from testifying. The court upheld the conviction because the chemical test requested would
have indicated only the presence of narcotics. A positive indication of the presence of
narcotics would still leave for determination the question of admissibility. As the court said,
413 P.2d at 741-742:
. . . If the trial judge had ordered the witness to submit to a Nalline test the question of
competency would still have remained to be determined. Here, the trial judge was satisfied
from personal observation that the witness was capable of comprehending the significance of
questions addressed to him and of responding in a lucid manner. . . .
United States ex rel. Lemon v. Pate, 427 F.2d 1010 (7th Cir. 1970), stemmed from a bench
trial conviction of the sale of a narcotic drug in violation of state law. The case came before
the United States Court of Appeals from the denial of a writ of habeas corpus filed in the
United States District Court.
87 Nev. 567, 571 (1971) Fox v. State
before the United States Court of Appeals from the denial of a writ of habeas corpus filed in
the United States District Court. One of the witnesses at the state trial was an informer, an
addict who had been convicted of possession of narcotics. He had taken narcotics on the day
of the controlled purchase and had used narcotics on the day of the trial some time prior to
testifying (facts similar to the instant case). The petitioner was seeking relief from the federal
court under the Sixth and Fourteenth Amendments because no hearing took place at the state
trial with regard to the competency of the witness. (The district judge in this case did conduct
such a hearing.) The circuit court noted that no objection to competency was made at the state
level. (There was such an objection in the case at bar.) The United States Court of Appeals
upheld the trial judge's exercise of his discretion in allowing testimony of the witness. In its
opinion, the court noted, 427 F.2d at 1013, facts that resemble those in the case before us:
[T]he transcript reveals that Carter [the informer] was subjected to a vigorous
cross-examination and that he was an alert witness.
In the case we are here considering, Trial Judge William R. Morse made the following
explanation for permitting Boley's testimony to stand:
The Court: Record will show that in the court's opinion . . . the witness didn't appear to
me to be high on narcotics. He handled himself pretty well under cross examination, in fact,
very well on expert cross examination and as many times as you [defense counsel] tried to
cross him up and throw rapid-fire questions at the man, he did fairly well. . . .
. . .
The Court: In fact, very good, and handled himself in a manner that some people who . . .
hadn't had a drug can't.
. . .
The Court: . . . I see nothing in any statute that says that the witness . . . Mr. Boley is
incompetent to testify, and it's up to the jury to determine his credibility and . . . they saw
him, saw his actions, saw his demeanor.
[Headnote 3]
The district judge gave defense counsel wide latitude in his cross-examination of Witness
Boley, and he also gave a cautionary instruction to the jury regarding the credibility and
weight to be given the testimony of an informer or an addict. Wide latitude on
cross-examination and cautionary instructions are necessary in situations such as faced the
court below. Cf. Crowe v. State, supra.
87 Nev. 567, 572 (1971) Fox v. State
We conclude that the district judge did not abuse his discretion in refusing to order a
physical examination of witness Boley and that under the facts presented it was proper to
permit Boley's testimony to stand.
The judgment of conviction is affirmed.
Zenoff, C. J., Batjer and Thompson, JJ., concur.
I agree the judgment and sentence should be affirmed; for it appears, from the entire
transcript, that even had a medical examination shown Boley to be thoroughly under the
influence of narcotics when he testified, the evidence of appellant's guilt would nonetheless
have been overwhelming. Thus, it appears to me that any error by the trial court, in refusing
to grant appellant's motion for a medical examination of witness Boley, may be deemed
harmless.
The testimony of two police officers, Patrick Stevens and Michael Mouliot, establishes
that at about 6:30 p.m. on the night in question, Mr. and Mrs. Boley were at the Las Vegas
Police Department. At that time, neither Boley appeared high. The officers observed as
Boley dialed appellant's phone number, and asked for Anthony. Listening on an extension
phone, Officer Stevens heard appellant Anthony Fox, whose voice he recognized, come on
the line and agree to meet the Boleys with narcotics at the filling station at F and Bonanza
streets. Officer Mouliot went through Boley's pockets to ascertain that he was not in
possession of narcotics; then, the officers followed the Boleys to the place where Fox had
agreed to meet them. Watching through binoculars, the officers observed appellant arrive as
agreed, go into the men's room with Mr. and Mrs. Boley, and remain there for sufficient time
to fix them. When the Boleys emerged, the officers kept them under surveillance, and back
at the police station, Boley removed narcotics from one of his pockets, which Officer Mouliot
had searched before the meeting with appellant. Then, Boley appeared to be high on drugs.
I have grave reservations about language in certain decisions of this court, which might be
taken to suggest that uncorroborated testimony of an addict-informer like Verne Boley,
however depraved and however self-interested, is sufficient evidence upon which to
incarcerate other men for substantial portions of their lives. Cf. Tellis v. State, 84 Nev. 587,
445 P.2d 938 (1968); cf. Lujan v. State, 85 Nev. 16, 449 P.2d 244 (1969). I suggest there are
situations in which the testimony of people like Boley, alone, does not constitute proof
beyond a reasonable doubt. Cf. People v. Bazemore, 1S2 N.E.2d 649 {Ill.
87 Nev. 567, 573 (1971) Fox v. State
like Boley, alone, does not constitute proof beyond a reasonable doubt. Cf. People v.
Bazemore, 182 N.E.2d 649 (Ill. 1962). However, the instant case was not one which
developed in such a way that the informer was at liberty to name almost any person he wished
to select as the guilty one. Id., at 651. On the contrary, the instant case shows that
respectable police work can provide corroborative evidence, rendering it unnecessary to
hazard the danger of convictions grounded solely on the testimony of addict-informers.
Here, while the controls imposed to obtain corroboration of the Boleys' testimony may not
have been ideal, they resulted in such proof of appellant's guilt that the jury was required to
rely only minimally on the Boleys' testimony. It is impossible to see how a medical
examination of Verne Boley would have altered the outcome of the case.
____________
87 Nev. 573, 573 (1971) Ogle v. Miller
W. W. OGLE, A. CONROY, FLOYD TURNER, RONALD REISS, and GEORGE
SHIROKY, Appellants, v. BILL MlLLER, Individually, and BILL MILLER dba BILL
MILLER SPORTS PROMOTIONS, Respondent.
No. 6507
December 2, 1971 491 P.2d 40
Appeal from order of Eighth Judicial District Court, Clark County, William R. Morse,
Judge, setting aside default judgment.
Defendant moved for order setting aside default judgment that had been entered against
him for wages. The district court set aside judgment and judgment creditors appealed. The
Supreme Court, Mowbray, J., held that where, upon being served with process with respect to
claim for wages, defendant contacted attorney who advised him that he would suggest that
codefendant take care of obligation and, believing matter was settled, defendant did nothing
until he received notice that a judgment for many times the amount of the original claim had
been entered against him, district judge did not abuse his discretion in finding that defendant's
failure to answer was excusable neglect.
Affirmed.
87 Nev. 573, 574 (1971) Ogle v. Miller
Keith C. Hayes, of Las Vegas, for Appellants.
George, Steffen & Simmons, of Las Vegas for Respondent.
1. Judgment.
In addition to showing excusable neglect as basis for relief from final judgment, movant must
demonstrate that he has a meritorious defense to the action. NRCP 60(b)(1).
2. Judgment.
Determination of existence of excusable neglect as ground for relief from final judgment is matter within
sound discretion of district judge. NRCP 60(b)(1).
Judge's ruling on motion to set aside default judgment will not be disturbed when there has been no abuse
of discretion. NRCP 60(b)(1); NRS 608.010 et seq.
4. Judgment.
Under statute providing that court may relieve party from final judgment on ground of mistake,
inadvertence, surprise or excusable neglect, there must be prompt application to remove the default
judgment, absence of intent to delay the proceedings, lack of knowledge of party or counsel as to
procedural requirements and good faith. NRCP 60(b)(1); NRS 608.010 et seq.
5. Judgment.
Where, upon being served with process with respect to claim for wages, defendant contacted attorney
who advised him that he would suggest that codefendant take care of obligation and, believing matter was
settled, defendant did nothing until be received notice that a default judgment for many times the amount of
the original claim had been entered against him, district judge did not abuse his discretion in finding that
defendant's failure to answer was excusable neglect and in setting aside judgment. NRCP 60(b)(1); NRS
608.010 et seq.
6. Judgment.
Although defendant's affidavit in support of his motion to set aside default judgment was insufficient to
show that he had meritorious defense to the action, defendant's testimony, which, if true, would provide
meritorious defense provided sufficient showing. NRCP 60(b)(1); NRS 608.010 et seq.
7. Judgment.
Basic underlying policy in regard to setting aside of default judgments is to have each case decided upon
its merits. NRCP 60(b)(1); NRS 608.010 et seq.
OPINION
This is an appeal from an order of the district court granting Respondent Bill Miller's
motion to set aside a default judgment that the appellants had caused to be entered against
him for wages they claimed were due them for their work on the Liston-Martin prize fight
held in Las Vegas on December 6, 1969.
87 Nev. 573, 575 (1971) Ogle v. Miller
wages they claimed were due them for their work on the Liston-Martin prize fight held in Las
Vegas on December 6, 1969. They also sought recovery of substantial statutory penalties as
prescribed for nonpayment of wages in chapter 608 of NRS.
On January 20, 1970, Miller was served with a copy of the complaint and summons. He
did not answer the complaint, and judgment by default was entered against him on February
27, 1970.
1
On August 19, 1970, Miller filed a motion and his affidavit in support thereof to
set aside the default judgment. The district judge granted the motion, and he ordered the
default judgment set aside, which order we affirm.
Respondent Miller's motion was predicated upon NRCP 60(b)(1), which provides:
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;.
[Headnotes 1-4]
In addition to showing excusable neglect, the movant must demonstrate that he has a
meritorious defense to the action. Minton v. Roliff, 86 Nev. 478, 481, 471 P.2d 209, 211
{1970).
____________________

1
The judgment read, in part:
1. That Plaintiffs have Judgment against BILL MlLLER, individually, and BILL MILLER, d/b/a BILL
MILLER SPORTS PROMOTIONS as follows:
(a) Plaintiff W. W. OGLE is awarded judgment in the sum of $169.56, together with interest, from December
6, 1969 and for penalty in the sum of $4,710.00, together with interest from the date hereof; for attorney fees in
the sum of $100.00.
(b) Plaintiff A. CONROY is awarded judgment in the sum of $169.56, together with interest, from December
6, 1969 and for penalty in the sum of $4,710.00, together with interest from the date hereof; for attorney fees in
the sum of $100.00.
(c) Plaintiff FLOYD TURNER is awarded judgment in the sum of $169.56, together with interest, from
December 6, 1969 and for penalty in the sum of $4,710.00, together with interest from the date hereof; for
attorney fees in the sum of $100.00.
(d) Plaintiff R. REISS is awarded judgment in the sum of $38.76, together with interest, from December 6,
1969, and for penalty in the sum of $1,076.40, together with interest from the date hereof; for attorney fees in the
sum of $100.00.
(e) Plaintiff G. SHIROKY is awarded judgment in the sum of $38.76, together with interest, from December
6, 1969, and for penalty in the sum of $1,076.40, together with interest from the date hereof; for attorney fees in
the sum of $100.00.
2. That Plaintiffs are further awarded their costs incurred.
DATED this 27th day of February, 1970.
87 Nev. 573, 576 (1971) Ogle v. Miller
(1970). The determination of the existence of excusable neglect is a matter within the sound
discretion of the district judge. Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841
(1961). The judge's ruling on a motion to set aside a default judgment will not be disturbed
when there has been no abuse of discretion. Lentz v. Boles, 84 Nev. 197, 438 P.2d 254
(1968); Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293
(1963); Blakeney v. Fremont Hotel, Inc., 77 Nev. 191, 360 P.2d 1039 (1961). In Hotel Last
Frontier, this court reviewed the divergent results of the cases that had come before this court
on appeals from orders granting and denying motions to set aside default judgments. The
court stated that the determination of what facts will establish the existence of one or more of
the specified conditions required by NRCP 60(b)(1) is largely discretionary, but that certain
guides had been declared. They may be summarized as (a) prompt application to remove the
judgment, (b) absence of an intent to delay the proceedings, (c) lack of knowledge of the
party or counsel as to procedural requirements, and (d) good faith.
[Headnote 5]
In the instant case Miller, upon being served with process, contacted Attorney Michael
Wendell, a friend, who also represented a codefendant. Mr. Wendell advised Miller that he
would . . . suggest to Mr. Cassina that we, Feature Attractions [the codefendant], take care of
this obligation. Believing the matter was settled, Miller did nothing further until he received
notice that a whopping judgmentmany, many times the amount of the original claimhad
been entered against him. He then engaged his own attorney, who, after several months of
negotiations with counsel for appellants, moved to set aside the default judgment. The district
judge, under the facts presented, certainly did not abuse his discretion in finding that Miller's
failure to answer was excusable neglect on his part.
Certain procedures have been suggested for satisfying the requirement that one who seeks
to set aside a default judgment must show that a meritorious defense exists to the complaint:
(1) Admissible testimony or affidavits that, if true, would tend to establish a defense to all or
part of the claim for relief asserted; (2) the opinion of counsel based upon facts related to
him, without need to set them forth, that a meritorious defense exists to all or part of the
claim asserted; (3) a responsive pleading in good faith that, if true, would tend to establish a
meritorious defense to all or part of the claim for relief asserted; {4) any combination of the
above.
87 Nev. 573, 577 (1971) Ogle v. Miller
asserted; (4) any combination of the above. Hotel Last Frontier Corp. v. Frontier Properties,
Inc., supra; Minton v. Roliff, supra.
[Headnote 6]
Although Miller filed an affidavit in support of his motion to set aside the default, it,
standing alone, was insufficient to show that he did have a meritorious defense to the action.
At the hearing on the motion, however, Miller testified without objection regarding a certain
contract and its contents, which testimony, if true, would provide the necessary meritorious
defense required. Miller's testimony, therefore, provided a sufficient basis for the district
judge's finding that a proper showing had been made.
[Headnote 7]
As the court said in Hotel Last Frontier, supra, 79 Nev. at 155, 380 P.2d at 295:
Finally we mention, as a proper guide to the exercise of discretion, the basic underlying
policy to have each case decided on its merits. In the normal course of events, justice is best
served by such a policy. Because of this policy, the general observation may be made that an
appellate court is more likely to affirm a lower court ruling setting aside a default judgment
than it is to affirm a refusal to do so. In the former case a trial upon the merits is assured,
whereas in the latter it is denied forever. (Emphasis in original.)
2

This appeal is a classic example of such a case. Under the facts presented, it would have
been a clear abuse of discretion to permit a judgment of this nature to stand and thereby deny
the party against whom it is entered his day in court. The order of the district judge is
affirmed.
____________________

2
Cf. McClellan v. David, 84 Nev. 283, 439 P.2d 673 (1968), where the majority of the court overruled the
lower court's order setting aside a default judgment upon facts substantially different from those in the instant
case, in that David was served on May 14, 1965, and judgment was entered on December 15, 1966, with no
explanation appearing in the record for the lapse of 19 months between the time of service and the entry of the
default judgment.
____________
87 Nev. 578, 578 (1971) Austin v. State
CURTIS AUSTIN, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6300
December 7, 1971 491 P.2d 724
Appeal from judgment of conviction and sentence of the Fifth Judicial District Court, Nye
Defendant was convicted in the district court of possessing heroin, and he appealed. The
Supreme Court, Gunderson, J., held that where alleged accomplice's acts in connection with
heroin allegedly given to him by defendant for purposes of sale were such as to render him
subject to prosecution in Nevada on charge of possession and alleged accomplice was only
person who incontestably possessed heroin and used it criminally, alleged accomplice was in
fact an accomplice, and permitting jury to determine alleged accomplice was feigned
accomplice only and to convict on uncorroborated testimony of alleged accomplice was error.
Reversed; information dismissed and appellant discharged, without prejudice to
institution of new proceedings.
Thompson and Mowbray, JJ., dissented.
Robert List, Attorney General, Carson City; William P. Beko, District Attorney, Nye
County, for Respondent.
1. Criminal Law.
Defendant's proximity at time of arrest to individual whose luggage was subsequently found to contain
heroin was insufficient corroboration of alleged accomplice's testimony that defendant knew other
individual possessed narcotics, that defendant owned the narcotics, and that defendant therefore
constructively possessed them through other individual. NRS 175.291, subd. 1, 453.030.
2. Criminal Law.
Where alleged accomplice's acts in connection with heroin allegedly given to him by defendant for
purposes of sale were such as to render him subject to prosecution in Nevada on charge of possession and
alleged accomplice was only person who incontestably possessed heroin and used it criminally, alleged
accomplice was in fact an accomplice, and permitting jury to determine alleged accomplice was
feigned accomplice only and to convict on his uncorroborated testimony was error.
alleged accomplice was feigned accomplice only and to convict on his uncorroborated testimony was error.
NRS 175.291, subds. 1, 2, 194.020, subds. 1, 3, 5, 195.020, 453.030.
OPINION
Convicted of possessing heroin in violation of NRS 453.030, appellant Curtis Austin
contends that because the State adduced no evidence to corroborate its principal witness,
Jesse Martin, and because Martin's testimony unequivocally established Martin was himself
an active, corrupt participant in the criminal endeavor he ascribed to appellant Austin, the
evidence against appellant was therefore insufficient to sustain his conviction in view of our
legislature's pronouncement that [a] conviction shall not be had on the testimony of an
accomplice unless he is corroborated. NRS 175.291(1). We are constrained to agree.
As counsel for appellant contends, the trial transcript contains nothing inculpatory of
Austin except the testimony of Jesse Martin, a heroin dealer with a lengthy and varied
criminal history who, when apprehended with a whole bunch of narcotics several months
before the incident concerned herein, had undertaken to incriminate others in exchange for
cash and to avoid prosecution for his own criminal activities. Without Martin's testimony the
record shows only that on October 3, 1969, Austin drove from Las Vegas to Beatty, Nevada.
There, at the Exchange Club, a casino-restaurant serving also as a bus station, Austin met
Tanya Edwards, who had arrived by bus from Portland, Oregon, some eight hours earlier.
Austin bought a glass of milk. Then, both left the casino and entered Austin's car; Miss
Edwards placed her luggage on the rear seat; police officers appeared, showed a search
warrant, and found heroin concealed in a slipper in Edwards' luggage.
1

Austin thus stands convicted of possessing narcotics which arrived in Nevada with
Edwards, which never thereafter came into Austin's actual possession, and over which he
exercised no dominion whatever on the date of the alleged offense.
____________________

1
We can find nothing suspicious or unusual about Austin's meeting with Edwards, evidencing Austin knew
Edwards possessed a quantity of narcotics. True, Beatty is approximately 115 miles from Las Vegas; however,
the highway is good, for much of the way there is no posted speed limit, and Edwards apparently is an attractive
woman, commonly employed as a cocktail waitress and singer. Men often embark on more arduous journeys for
less reason than this. They met in a public place; Austin showed no interest in her luggage; his actions were not
hurried or furtive. Indeed, the place and time of their meeting tend
arrived in Nevada with Edwards, which never thereafter came into Austin's actual possession,
and over which he exercised no dominion whatever on the date of the alleged offense.
Therefore, it is vital to appreciate that the conviction must be justified, if at all, on the theory
that, through Martin, the State proved Austin, as owner of the narcotics, constructively
possessed them through Edwards, and before her through Martin himself.
2
It is vital, we say,
because without recognition of this, Martin's status as an accomplice to the crime charged
cannot properly be evaluated. The rationale that one participant in a criminal scheme is
culpable for the others' acts is a sword that cuts both ways. And from Martin's testimony a
chronology of events emerged, principally on cross-examination, that would constitute him an
active criminal participant with Austin in possession of the heroin concerned.
According to Martin, about September 23, Austin proposed that Martin leave Las Vegas
to sell narcotics for him; Martin agreed, without learning how, where or when he was
supposed to go. On September 26, Martin testified, he asked Austin about the trip; then he
learned Austin wanted him to leave Las Vegas to market heroin in Portland, Oregon, a city
with which Martin had no familiarity. Pursuant to instructions from Austin, he checked the
bus station and got the amount of the fares from Las Vegas to Portland and the time that the
bus would leave."
____________________
more to suggest Austin did not know Edwards carried contraband than to prove that he did. It seems strange
Austin, a black man, would select a small town like Beatty for a criminal rendezvous, since there blacks are a
relative rarity. There are at least three answers to any suggestion that this may be explained by inferring Austin
thus sought to avoid detection. First, Austin could have met Edwards any number of places in Las Vegas without
the slightest prospect of apprehension. Second, if she carried contraband belonging to him and he therefore
desired not to attract attention to their meeting, it is hard to understand why he did not meet her when she first
arrived in Beatty. Third, if he desired to meet her outside Las Vegas, to avoid being seen with her, he could have
arranged their rendezvous more conveniently at points outside but closer to Las Vegas. Thus, the circumstances
of their meeting seem to us to have no incriminating significance.
It may also be noted that even if there were independent evidence to show Austin knew Edwards was likely
to possess narcotics (and there is not), it would remain most doubtful that his knowing association with a
probable narcotics violator would justify any reasonable inference that Austin himself was guilty of criminal
misconduct. Cf. Sibron v. New York, 392 U.S. 40, 62 (1967).

2
Our brother Thompson seems to recognize this, for his opinion is grounded on the concept that Austin was
deemed to have the same possession as any person possessing the narcotics pursuant to his direction.
bus would leave. At 6:00 p.m. that evening, Martin met Austin and Edwards; she said yes
she was ready to go; then Austin told me be ready at 9 o'clock. At this point, according to
Martin, he went home and called the police department. However, what he told the police
at this juncture is not clear.
As Martin's story proceeded, Austin and Edwards picked him up in Austin's car; Austin
stopped, went into the desert, came back and gave Martin ten balloons containing 20 heroin
capsules each, a total of 200 caps, retail value $5 each, a total of $1,000. Then Austin drove
them to Beatty, where Martin last saw him approximately 11 o'clock that night on the 26th
when Austin gave Edwards money to purchase their tickets to Portland. Upon arrival there
about 10:00 p.m. September 27, they rode around in a taxi an hour or so, then took separate
motel rooms. Thereupon, Martin went out to find where the fast action was. (As Martin
said Edwards did nothing after their arrival, except to hold some of the heroin Martin
transported there, Martin's story does not account for why Austin sent her along, as
supposedly he did.)
Martin first said he had no money when they arrived, then said he had less than $30; he
stayed eight days; still, he claimed he sold no narcotics. Instead, he said, he proceeded to
search out addicts and give the narcotics away, leaving with Edwards all that he did not take
with him down on the street. (Considering expenses necessarily inherent in the venture, it is
hard to see how Austin could profit from it, even had Martin sold everything supposedly
entrusted to him.)
Martin explained he gave away the narcotics because Austin told him to generate business
by distributing samples. He kept giving them away, he said, because no contact appeared to
show him the ropes, as Austin supposedly had promised. Yet it was apparent Martin needed
no one to show him the ropes; he is justifiably proud of his own expertise in the narcotics
trade.
3
Probably because he could not explain his survival in any other way, he admitted that
he accepted meals and favors from addicts he raised, but denied accepting money. He was
communicating with the Las Vegas police, he claimed, but did not tell them of his own
criminal activities because he "figured it was none of their concern."
____________________

3
Consider the following excerpt from cross-examination of Martin:
Q. So, you just looked over the crowd and if you saw a fellow you thought was an addict you just A. If I
saw one that I knew was an addict. Q. You are deft enough that you can look at a man and tell he is an addict?
A. Well, I would say I have a fair knowledge of it. Q. You have that much knowledge of the traffic you can look
at a man and tell whether he is an addict or not, right? A. Well, I did that time.
but did not tell them of his own criminal activities because he figured it was none of their
concern. His own activities, he said, were not a crime if he didn't get caught. (Inasmuch as
Martin did not tell the police what he was actually doing in Portland, and Edwards
concededly did not actively participate in Martin's criminal pursuits, what truthful
information he could have reported to the police is something of a mystery.)
4

According to Martin, only four days after Edwards and Martin arrived in Portland, Austin
became disgruntled because Martin was not making any money there, and directed that
Edwards should return with such narcotics as were undistributed. (Martin testified that the
night before Edwards leftwhich would have been October 1, as she had to leave Portland
October 2, to arrive in Beatty October 3he was with her when she called Austin. This
testimony was at odds with that given at the preliminary hearing, when Martin testified he
was present only at the time Edwards called Austin from the bus depot on arrival.) When
Austin asked that Edwards return, Martin allowed her to leave with seven balloons of heroin
{140 "caps").
____________________

4
Martin's testimony would establish that his actions, including his own knowingly criminal endeavors, were
within the scope of the plan he claims to have entered into with Austin: Q. What were your directions by Mr.
Austin to do when you went up there if you were taking that heroin up there for him, what were your directions
by him to do with it? A. Just what I did with it except he told me to give out some samples and let the guys on
the street know what I had, and then they would start to buy. But I never did sell any. Q. That's all the
instructions you had? A. Well, except someone was suppose [sic] to contact me and show me the ropes, the ins
and outs, and all, which never did happen. Q. He told you someone would contact you and show you all the
ropes? A. Yes.
Q. And nobody showed up? A. No. . . . Q. So, then, you went on your own to give it away? A. No, I wasn't
giving it away on my own; I was giving it away because be told me to. Q. Because he told you to? A. To give out
some samples, and that is what I was doing. Q. Does that seem reasonable, Mr. Martin, that he would tell you
somebody would contact you up there and show you the ropes and then he would tell you to go out on your own
and give it away? A. Well, I guess it seemed reasonable enough to me, I guess, because nobody contacted
me. . . . Q. But you did go out and stay with addicts during the night and they bought meals and everything for
you. And you, instead of charging them for the heroin, you would give it to them? A. Yes, I gave it to them.
Q. Did you know at the time that you were furnishing heroin to those addicts you were violating the Oregon state
law? A. Well, they didn't catch me at it. . . . Q. Well, that was my question. You didn't know it was a violation or
a felony in Oregon to give it away to anybody? A. (No response.) Q. Right? A. Are you still waiting for an
answer? I thought I answered you. No, I wasn't really too concerned about whether it was a violation or not. I
didn't think it was a violation if I didn't get caught at it, at least.
heroin (140 caps). Of the balance that he retained, he says he supplied one balloon (20
caps) to the police; he gave away the contents of the other balloons (40 caps) over the
course of his stay. Martin testified he was in Edwards' motel room on October 2 as she
finished packing, and saw her pack the balance of the narcotics that Martin had given her.
When she departed, he called the bus station, ascertained when her bus would depart Portland
and arrive in Beatty, and called the police in Las Vegas to tell them where Edwards had
packed the narcotics he had given her, and where to be to arrest her and Austin.
5

The police apparently did not know that, in fact, Martin had been purveying heroin in
Portland; for they obtained a search warrant upon an affidavit that assumed Martin was
merely keeping Miss Edwards and the narcotics under surveillance. Martin's testimony does
establish, however, that he was a heroin dealer, and had been well over a year before his
alleged transaction with Austin. Some three months before events involved in Austin's
conviction, Martin admitted, he was apprehended with 56 caps of heroin; then, to avoid
prosecution, he undertook to incriminate others, and supplied or fabricated evidence on at
least one other associate besides Austin and Edwards. From testimony of police officers as
well as Martin it is clear that in exchange for Martin's co-operation and testimony, the police
gave Martin money when he requested it, and refrained from prosecuting him.
6
The courts
have long recognized not only that the uncorroborated testimony of an accomplice has
doubtful worth, but that his incrimination of another is not corroborated simply because
he accurately describes the crime or the circumstances thereof.7 Our legislature, as
legislatures in a multitude of other states, has codified this historic view.
____________________

5
Martin's testimony did not explain why Austin should become disgruntled over Martin's failure to make
money, which is strange when one recalls Martin was supposedly giving away the narcotics because Austin told
him to, and Austin never arranged the promised contact to help Martin begin to make sales. It is also
interesting that while any police plan to capture Austin with narcotics in Nevada was necessarily dependent from
its inception upon the narcotics being returned here, Martin's story attributed their return to Austin's spontaneous
decision, and attributed that decision to Austin's self-inflicted disgruntlement with the venture. It is also curious
that, although Martin said he saw where the narcotics were packed and told the police, they did not find them
immediately when they conducted their search in Beatty. Only after failing to find them on the first search of
Edwards' effects did they ultimately find contraband in the toe of her slipper.

6
On this point, cross-examination of Martin proceeded:
Q. How much did you have on you when they caught you? A. Oh, I think it was something like 56 caps, I
think. Q. Of heroin? A. Yes. Q. Where did they catch you? A. F Street and Jackson. Q. Did they throw you in
jail? A. Yes. Q. And then they made a deal with you, didn't they? A. Well, what do you mean when you say they
made a deal? Q. Well, they made a deal with you that you would go free if you catch other people, testify against
them and throw
The courts have long recognized not only that the uncorroborated testimony of an
accomplice has doubtful worth, but that his incrimination of another is not corroborated
simply because he accurately describes the crime or the circumstances thereof.
7
Our
legislature, as legislatures in a multitude of other states, has codified this historic view. NRS
175.291 provides:
1. A conviction shall not be had on the testimony of an accomplice unless he is
corroborated by other evidence which in itself, and without the aid of the testimony of the
accomplice, tends to connect the defendant with the commission of the offense; and the
corroboration shall not be sufficient if it merely shows the commission of the offense or the
circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical
offense charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.
It is therefore apparent: first, NRS 175.291 (1) requires us to consider whether Martin has
been adequately corroborated, assuming he is an accomplice; and, second, if no
corroboration is found, NRS 175.291(2) requires us to decide whether Martin's
participation in the criminal endeavor he attributed to Austin constituted Martin an
accomplice. We will consider these issues in the order stated.
____________________
everybody else in jail to save yourself? A. They didn't say that. Q. Well, what did they do with you? Do you
have a case pending? A. No, I don't have no case pending so far as I know. Q. They dropped it all on you, didn't
they? A. Well, let me answer that this way: They said that they would make recommendations to the District
Judge for me. Q. Well, you have never been in front of a District Judge, have you? A. Pardon? Q. You have
never been in front of a District Judge, have you, on your own case? A. No, so far I haven't. Q. And they haven't
go[t] a case pending against you now, have they? A. No, they don't have. Q. You got it all dropped, didn't you?
A. Yes.
Martin also testified:
Q. Now, you have sold quite a bit of heroin in your time, haven't you? A. Not too much. Q. But you have
sold quite a bit, haven't you? A. Not too much. Q. Well, what do you call too much? A. What do you call quite a
bit? Q. Well, how much have you sold? A. Well, I don't remember.

7
1837, Lord Abinger, C.B., in R. v. Farler, 8 C.&P. 106: A man who has been guilty of a crime himself will
always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without
identifying the person, that is really no corroboration at all.
1826, Bushe, C. J., and others, in R. v. Sheehan, Jebb 54, 57, thought that ex concesso' an accomplice was
concerned in the crime and knew all the facts. . .
[Headnote 1]
1. Could Austin's proximity to Edwards constitute corroboration of testimony by
Martin showing that Austin knew she possessed narcotics, that Austin owned the narcotics,
and that Austin therefore constructively possessed them through Edwards?
Under statutes such as NRS 175.291 it is commonly held that corroborative evidence is
insufficient when it merely casts a grave suspicion upon the accused. People v. Shaw, 112
P.2d 241, 255 (Cal. 1941), and cases there cited; Cooper v. Territory, 91 P. 1032 (Okla.
1907). As the California Supreme Court said in People v. Shaw, supra, citing numerous
authorities:
The difficulty comes in determining what corroboration is sufficient. First, we must
eliminate from the case the evidence of the accomplice, and then examine the evidence of the
remaining witness or witnesses with the view to ascertain if there be inculpatory evidence,
evidence tending to connect the defendant with the offense. If there is, the accomplice is
corroborated; if there is no inculpatory evidence, there is no corroboration, though the
accomplice may be corroborated in regard to any number of facts sworn to by him. Id., at
255; emphasis in original.
This seems the approach the courts have uniformly taken to application of statutes like
NRS 175.291; indeed, it seems the only approach available. How else may we implement the
legislative edict that there must be corroborative evidence which in itself tends to connect
the defendant with the commission of the offense without the aid of the testimony of the
accomplice? How else may we honor the legislative mandate that corroboration shall not be
sufficient if it merely shows the commission of the offense or the circumstances thereof?
Implicitly recognizing the propriety of the aforedescribed approach to application of NRS
175.291, this court held in Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960), that an
accomplice was not sufficiently corroborated, even to show probable cause to hold for trial,
merely by showing the defendant was with the accomplice near the scene of the crime on the
night it was committed, at the time the accomplice testified they committed it in concert.
8
Similarly, as Austin's proximity to Edwards is not independent inculpatory evidence
connecting him to her possession of heroin, therefore if Martin's testimony establishes
himself as an accomplice of Austin, then, as appellant's counsel contends, the evidence
adduced against him was insufficient.
____________________

8
A recent case similar to Hutchinson and to the one before us is State v. Jones, 465 P.2d 719 (Ore.App.
1970). There, the court held testimony showing only that a burglary was committed, that the defendant had been
in the store in question earlier on the same evening as the burglary, and that later that evening the defendant was
still in
proximity to Edwards is not independent inculpatory evidence connecting him to her
possession of heroin, therefore if Martin's testimony establishes himself as an accomplice of
Austin, then, as appellant's counsel contends, the evidence adduced against him was
insufficient. This is the mandate of our legislature. As this court said in another case
involving the same statute, if re-examination is now to be had it should . . . be by legislative
rather than judicial act. Ex parte Sullivan, 71 Nev. 90, 93, 280 P.2d 965, 966 (1955).
The State's only response to this is summarized in, and almost limited to, one sentence in
its answering brief: The law does not require corroboration of an informant. Thus, it seems
fair to say that lack of corroboration is conceded, so that Austin's conviction may not stand
if Martin was an accomplice within the meaning of our legislature's mandate. We pass to
consideration of this second issue.
[Headnote 2]
2. As Martin described the criminal endeavor in which he incriminated Austin, was
Martin within the statutory definition of an accomplice; and, if so, may application of NRS
175.291 properly be avoided, as the minority opinion suggests, by saying that Martin was at
the most a feigned accomplice?
NRS 175.291(2) defines an accomplice as one who is liable to prosecution, for the
identical offense, but inasmuch as the statute does not specify that an accomplice must be
liable to prosecution for the same offense in Nevada, a strong argument could be framed that
Martin would be an accomplice if his testimony merely established that in concert with acts
justifying prosecution of Austin in Nevada, Martin rendered himself liable to prosecution for
possession of the same heroin in Oregon, or elsewhere. It is, however, unnecessary to decide
this question, because it is clear Martin's acts were such as to render him subject to
prosecution, together with Austin, on the same charge in Nevada. NRS 194.020(1)(3)(5);
NRS 195.020; State v. Chapman, 6 Nev. 320 (1871); State v. Cushing, 61 Nev. 132, 120 P.2d
208 (1941).
____________________
town with accomplices and others, was not sufficient corroboration of accomplices' testimony to support
defendant's conviction for the burglary. In so holding, the court quoted (id., at 720) from State v. Carroll, 444
P.2d 1006, 1007 (Ore. 1968): . . . Before independent evidence of defendant's association with an admitted
accomplice will furnish the corroboration necessary, it must appear that the defendant and the accomplice were
together at a place and under circumstances not likely to have occurred unless there was a criminal concert
between them.
It is equally clear that Martin was not merely a feigned accomplice because, unlike
situations concerned in the cases cited in the minority opinion, Martin's testimony shows
unequivocally that he participated criminally in the activities he described to incriminate
Austin. Indeed, Martin is the only person who incontestably possessed the heroin and used it
criminally. As this court said in State v. Verganadis, 50 Nev. 1, 248 P. 900 (1926), one of the
cases to which our brother Thompson has referred us:
Where the voluntary cooperation in the commission of a crime is admitted,' says Mr.
Wharton in his work on Criminal Evidence, vol. 1 (10th ed.) sec. 440, the court may charge
the jury that the witness is an accomplice; but where the evidence is conflicting as to the
manner of cooperation, the question as to whether or not the witness is an accomplice should
be submitted to the jury, under instructions as to voluntary or real cooperation in the
commission of the offense charged.' 50 Nev., at 7-8. Thus, neither the Verganadis case, nor
others in which this court has considered the subject of feigned accomplices, are in point on
the matter before us. Unlike the informant in Verganadis, whom this court said was not an
accomplice for the reason that there was no criminal intent on his part, Martin was not
merely feigning participation. He was a criminal with criminal intent, playing both sides, for
his own purposes, and not to further the ends of justice. The police obviously could not, and
apparently did not, sanction Martin's criminal acts. Martin purveyed narcotics, not to aid the
police, and not because compelled by the exigencies of the situation in which he found
himself. About this, we believe, reasonable men cannot differ.
It is Martin's criminal intent, not his intent to betray Austin, that is decisive of his status.
An accomplice is one culpably implicated in, or who unlawfully co-operates, aids, abets, or
insists in, the commission of the crime charged.' 2 Wharton's Crim. Ev. 448 (12th ed.
1955). The test as to whether one is an accomplice is whether his participation in the offense
has been criminally corrupt. Blake v. State, 24 P.2d 362 (Okla. Crim.App. 1933). In Savage
v. State, 170 S.W. 730 (Tex. Crim.App. 1914), where a witness testified the defendant had
offered to bribe him to leave the country, and that the witness actually left as agreed, but with
intent of betraying the defendant to the police, the court said:
It is useless for the court to assume, under the circumstances and statements as made by
this witness, that there was any question or issue as to his being an accomplice. . . .
Under this witness' evidence, he went into a scheme to work up a case against these parties at
the beginning in order to get them into trouble, and that, having done so, he accepted the
money and railroad ticket and agreed to leave the country, and did start to El Paso, and later
on did in another instance leave the country, and he testifies that appellant Savage sent him
money to different points in Texas, California, and Arizona to keep him out of the country in
the latter instance. There could be no question that Barkley was an accomplice, made so by
his own testimony. The court should have instructed the jury positively that he was an
accomplice. 170 S.W., at 733. Accord: Carr v. State, 82 S.W.2d 667 (Tex. Crim.App. 1935).
We view the instant matter in much the same light. As Martin's testimony left no doubt his
participation was criminally corrupt, the court erred in permitting the jury to determine he
was a feigned accomplice only, and to ignore our legislature's requirement of corroboration.
Whether the jury reached their verdict on this basis, or some other, Martin's testimony alone
was insufficient to support it.
We perceive no other way to view the matter. If the distinction between an actual
accomplice and a feigned accomplice does not depend on whether the informer participates
with criminal intent, or merely feigns it, then on what does the distinction depend? What are
we talking about feigning, if not the criminal intent? The distinction surely cannot depend
upon whether the informer harbored, at the time of his own criminal acts, intent to betray
supposed confederates to the police if it should seem expedient to do so. Nor can it turn on
whether, before performing his own criminal acts, the informer took the precaution to tell the
authorities of his intent to betray his confederates. We believe we are concerned with whether
Martin's criminality was feigned, not with whether his loyalty was.
By NRS 175.291, our legislature has declared that one who has participated criminally in a
given criminal venture shall be deemed to have such character, and such motives, that his
testimony alone shall not rise to the dignity of proof beyond a reasonable doubt. To this
legislative policy we must give meaningful effect.
9

Accordingly, appellant's conviction must be and hereby is reversed.
____________________

9
The minority opinion suggests the fault in our reasoning is that we deny the jury's right to find an informer
is a feigned accomplice although his own testimony unequivocally establishes him as a real accomplice. This
fault is in accord with our precedents. Cf. State v.
reversed. It is clear that, upon the present record, by virtue of NRS 175.291, there is
insufficient evidence to hold appellant to answer for the crime with which he stands charged.
Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). Thus, the charge against appellant is
hereby dismissed, and he is hereby discharged from custody.
10
However, as we wish to
afford the State an opportunity to prosecute appellant, in the event evidence to corroborate
Martin is available, dismissal of the charge against appellant shall be without prejudice to
institution of other criminal proceedings against him.
While other assignments of error have been raised, it is unnecessary to decide them.
Zenoff, C. J., and Batjer, J., concur.
Thompson, J., with whom Mowbray, J., agrees, dissenting:
1. Our Constitution limits the appellate jurisdiction of this court in criminal cases to
questions of law alone. Nev. Const. art 6, 4; State v. Millain, 3 Nev. 409 (1867); State v.
Fitch, 65 Nev. 668, 680, 200 P.2d 991 (1948); State v. Butner, 66 Nev. 127, 131, 206 P.2d
253 (1949). This command is to be obeyed, and denies our right to intrude upon the function
of the jury to weigh, evaluate and credit the testimony of a witness or witnesses. The fault of
the majority opinion lies in its acceptance of the whole of the testimony of the witness Martin
as being true, and upon that premise concluding that he was a real as distinguished from a
feigned accomplice. The jury was not compelled to credit all of the testimony given by
Martin. It was entirely free to accept a portion of his story and disbelieve the rest.
____________________
Pray, 64 Nev. 179, 179 P.2d 449 (1947), deciding that a witness's testimony showed her to be an accomplice as
a matter of law and, since her testimony was not sufficiently corroborated, reversing a verdict against the
defendant without allowing the State an opportunity to re-try him. Cf. In re Oxley and Mulvaney, 38 Nev. 379,
149 P. 992 (1915), as well as Ex parte Hutchinson and Ex parte Sullivan, supra, in which this court would not
even allow a trial upon the uncorroborated evidence of witnesses whose testimony established them as
accomplices.

10
Tanya Edwards, who arrived in Beatty with the heroin, was convicted of the offense concerned and has not
appealed. She did not take the witness stand, either to defend herself or to accuse Austin. Austin testified at
length, denying complicity with her and Martin. While the minority opinion suggests that lack of the
corroboration required by NRS 175.291 is somehow rendered less important by the fact that Austin denied
complicity with Martin, we cannot see how uncorroborated testimony becomes more trustworthy because it is
contradicted, nor where there is any latitude in the statute for a distinction of such character.
his story and disbelieve the rest. People v. Davis, 309 P.2d 1 (Cal. 1957); People v. Matlock
336 P.2d 505 (Cal. 1959); People v. Bodkin 16 Cal.Rptr. 506 (Cal.App. 1961). And, although
the State may have been bound by the evidence given by Martin, the jury, as the trier of the
facts, was not. State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962). Accordingly, it was
permissible for the jury to reject that portion of Martin's testimony inculpating him with
Austin, and to accept, as true, other testimony offered by him. Martin's implication of Austin
was, by Austin, denied. The evidence was in direct conflict as to Austin's involvement. It was
the jury's task to resolve that conflict under proper instructions from the court.
2. Of course it is true that the testimony of a real accomplice must be corroborated in
order to justify a conviction. NRS 175.291. It is equally true, however, that the testimony of
one who is a feigned accomplice need not be corroborated, and if believed in relevant part,
will support a conviction. State v. Verganadis, 50 Nev. 1, 7, 248 P. 900 (1926); State v.
Smith, 33 Nev. 438, 447, 117 P. 19 (1910); see also Ex parte Colton, 72 Nev. 83, 87, 295
P.2d 383 (1956); Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968). Whether the witness is a
real or a feigned accomplice is a jury question to be resolved under appropriate instructions,
State v. Verganadis, supra, and the finding of the jury is conclusive, Smith v. State, supra.
This is particularly true when the evidence is in conflict. Appropriate instructions were given
in this case.
3. Martin testified that he had alerted the police that Austin and Tanya Edwards were to
meet in Beatty, Nevada, on a certain day and that Tanya would have the narcotics in her
possession. Moreover, his testimony, if believed, established that the narcotics originally
belonged to Austin and were being redelivered to him by Tanya. Austin did meet Tanya in
Beatty on that day and she did have the narcotics in her possession. In short, the events which
transpired gave credit to that aspect of Martin's testimony and, as to that aspect, it was
permissible for the jury to believe that Martin was a feigned accomplice who voluntarily
cooperated with law enforcement to aid justice by detecting a crime.
4. Austin contends that the State failed to prove his possession of the narcotics. He had
driven to Beatty to meet Tanya who had the narcotics in her handbag. As they started to drive
away in Austin's automobile the police intervened, exhibited a search warrant, searched the
car and the handbag, found the narcotics, and placed Austin and Tanya under arrest.
Austin was never observed physically to have taken the handbag into personal custody.
However, if the narcotics were Austin's, as Martin testified, Austin would be deemed to have
the same possession as any person possessing the narcotics pursuant to his direction, since he
retained the right to exercise dominion and control. People v. White, 325 P.2d 985 (Cal.
1958).
5. The jury's verdict in this case should be sustained. We have no business setting aside
factual determinations. The majority opinion paints the witness Martin as a rascal and then
accepts his testimony as entirely true in order to rule as a matter of law, that he was a real
accomplice as to all phases of the transaction whether in Oregon or Nevada. The jury was not
obliged to so treat his testimony. It could sift, evaluate, accept some of it and reject the
balance. The jury apparently accepted Martin's advice to the police that a crime would occur
in Beatty because it did happen precisely as he said it would. I find no legal error in that
decision.
____________
87 Nev. 591, 591 (1971) Fox v. State
ANTHONY FOX, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6434
December 8, 1971 491 P.2d 721
Appeal from judgment of Eighth Judicial District Court, Clark County; Clarence Sundean,
Judge.
Defendant was convicted in the district court of selling narcotics, and he appealed. The
Supreme Court, Batjer, J., held that where witness' affirmative answer to prosecution question
as to whether witness had ever made a purchase of heroin before from defendant was
admitted for limited purpose of showing defendant's knowledge of narcotic nature of
substance sold, such testimony was properly received by trial court which instructed jury as to
limited purpose of testimony.
Affirmed.
Robert G. Legakes, Public Defender, and Jerrold J. Courtney, Deputy Public Defender,
Robert List, Attorney General, and Roy A. Woofter, District Attorney, Clark County, for
Respondent.
87 Nev. 591, 592 (1971) Fox v. State
1. Criminal Law.
In a narcotics case, state must prove defendant's knowledge of the substance as an element of the offense,
and proof of other narcotics offenses is probative to show such knowledge.
2. Criminal Law.
Where witness' affirmative answer to prosecution question as to whether witness had ever made a
purchase of heroin before from defendant was admitted for limited purpose of showing defendant's
knowledge of narcotic nature of substance sold, such testimony was properly received by trial court which
instructed jury as to limited purpose of testimony.
3. Criminal Law.
Even if allowing state's witness to testify as to prior heroin sale other than that with which defendant was
charged was error, such error was harmless in light of defendant's testimony at length that on day of sale
with which he was charged, he received $80 in marked money from witness for narcotics previously
delivered and not for any delivered on that day.
4. Poisons.
Evidence was not insufficient to support conviction for selling narcotics notwithstanding defendant's
assertion that witness' testimony was unreliable because he was an addict, lied about his job under oath and
admitted using heroin on day of sale in question.
OPINION
Anthony Fox was convicted by a jury of the crime of selling narcotics. He now asks us to
set aside this conviction because evidence of a previous crime was admitted at the trial. We
find that this evidence was properly received by the trial court, and therefore affirm the
judgment.
Carl Kaden, the witness who purchased the heroin from the appellant, was asked by the
deputy district attorney, during the course of the trial: Have you ever made a purchase of
heroin before from Anthony Fox? His answer was: Yes. The defense at this point moved
for a mistrial. The trial court denied the motion and admonished the jury by stating: It's
submitted for the limited purpose of showing the knowledge of the material that is the subject
of the sale. For that limited purpose only. It's not to be considered by the jury as any
commission of any previous, different or other crime. Before the jury retired for deliberation,
the court instructed them that the evidence of the other sale was to be considered by them
solely for the purpose of showing that the appellant had knowledge that the substance sold
was a narcotic.
87 Nev. 591, 593 (1971) Fox v. State
Appellant asserts that the prejudicial effect of this evidence, due to the strong public
attitudes against drug users and pushers, far outweighed its probative value and that even the
admonition and limiting instruction given by the court were not sufficient to assure a fair trial.
In the context of this case we deny such contention.
[Headnotes 1, 2]
It is the established law of this state that in a narcotics case the state must prove the
defendant's knowledge of the substance as an element of the offense, and proof of other
narcotics offenses is probative to show such knowledge. Dougherty v. State, 86 Nev. 507,
471 P.2d 212 (1970); Mayer v. State, 86 Nev. 466, 470 P.2d 420 (1970); Woerner v. State, 85
Nev. 281, 453 P.2d 1004 (1969); Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967);
Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); Overton v. State, 78 Nev. 198, 370 P.2d
677 (1962); Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961). As we noted in Dougherty
v. State, supra, there may be cases in which the state is able to show the defendant's
knowledge of the narcotic nature of the substance without submitting evidence of other
offenses. In those cases the court should not allow evidence of other offenses because its
prejudicial effect would outweigh its probative value. However, in cases where the
defendant's knowledge is not otherwise established, evidence of other offenses when offered
should be received, and the jury given an appropriate limiting instruction as to its purpose.
This is precisely what occurred in this case. The only evidence submitted during presentation
of the respondent's case in chief which was probative of the appellant's knowledge of the
narcotic nature of the substance sold was the evidence of the other offense testified to by the
witness Carl Kaden. Because of that circumstance, the trial court properly received such
evidence and instructed the jury as to its limited purpose.
[Headnote 3]
In the event we had determined that the trial court erred in allowing Kaden's testimony as
to a prior sale, such error was certainly harmless. As part of the defense the appellant testified
at length regarding previous illicit narcotics transactions with Kaden, as a result of which the
appellant claimed Kaden owed him money. The appellant told the jury, in essence, that on the
day of the sale with which he was charged, he received $80 in marked money from Kaden for
narcotics previously delivered, not for any delivered that day.
87 Nev. 591, 594 (1971) Fox v. State
previously delivered, not for any delivered that day. Kaden's testimony concerning the
occurrence of a prior illicit transaction merely corroborated the appellant's rather novel
defense.
1

[Headnote 4]
The appellant also contends, in addition to the above claim of error, that the evidence was
insufficient to support the verdict. He asserts that the testimony of Carl Kaden was unreliable
because he was an addict, lied about his job under oath and admitted using heroin on the day
of the sale in question. The jury chose to believe Kaden and the police officer. They had the
opportunity to observe all of the witnesses and attach the appropriate weight to their
testimony. There is sufficient evidence in the record for this court to conclude that the triers
of facts, acting reasonably, could find that the appellant was guilty of the crime charged.
Collins v. State, 87 Nev. 436, 488 P.2d 544 {1971); Graham v. State, S6 Nev. 290
____________________

1
Questions of the appellant by his attorney upon direct examination:
Q. Did you ever supply Carl Kaden, I'm not talking about January 3rd, but prior to that time, did you ever
trade any narcotics with Carl Kaden?
A. Yes, yes, because we did favors off and on. Through my acquaintance with Lonnie Champion.
Q. So in other words, if he needed some you would give him some; is that right?
A. Right.
Q. And did he ever give you any?
A. Yes, through purchases he made through different people then through Lonnie, understand me, the
channels he went through to get the narcotics.
Q. So that you obtained from him and he obtained from you whenever either of you needed or was short of if
the other had any; is that right?
A. Yes, something like that.
Q. Now, did Carl owe you any money before January 3, 1969?
A. Yes, sir; he owed me.
Q. How much did he owe you?
A. He owed me eighty-some dollars, I believe.
Q. And how is it he owed you this money?
A. Through fixes, because when we were fixing together and everything.
Q. Through your supplying him and him supplying you, he ended up owing you eighty dollars; is that
correct?
A. Yes.
Q. Did you very often loan each other pills?
A. Yes, at times, when Carl was short, but most of the time because I was more fortunate than Carl was.
87 Nev. 591, 595 (1971) Fox v. State
544 (1971); Graham v. State, 86 Nev. 290, 476 P.2d 1016 (1970).
Affirmed.
Zenoff, C.J., Mowbray, Thompson and Gunderson, JJ., concur.
____________
87 Nev. 595, 595 (1971) Howe v. Howe
RICHARD C. HOWE, Appellant, v. PATRICIA C.
HOWE, Respondent.
No. 6539
December 8, 1971 491 P.2d 38
Appeal from Order of the First Judicial District Court, Carson City, concerning visitation
rights; Frank B. Gregory, Judge.
Proceeding on motion by divorced husband to modify visitation provision of divorce
decree. The district court denied motion, and husband appealed. The Supreme Court held that
if motion to modify decree so as to provide that husband be allowed to have children during
Christmas and Easter vacations for period of one week and for six weeks during summer
vacation constituted request for partial custody of children, refusal to grant such request was
not abuse of discretion, absent showing that circumstances of parents had been materially
altered or that children's welfare would be substantially enhanced by change of custody. The
court further held that if motion were characterized as motion concerning visitation rights and
not as one requesting partial custody, refusal to grant such request was not abuse of
discretion.
Affirmed.
Fondi & Banta, of Carson City, for Respondent.
1. Divorce.
If divorced husband's motion to modify divorce decree so as to provide that he be allowed to have
children during Christmas and Easter vacations for period of one week and for six weeks during summer
vacation constituted request for partial custody of children, refusal to grant such request was not abuse of
discretion, absent showing that circumstances of parents had been materially altered or that children's
welfare would be substantially enhanced by change in custody.
87 Nev. 595, 596 (1971) Howe v. Howe
2. Infants.
It is presumed on appeal in child custody matters that trial court has properly exercised its judicial
discretion in determining what is for best interest of child.
3. Divorce.
If divorced husband's motion to modify divorce decree so as to provide that he be allowed to have
children during Christmas and Easter vacations for period of one week and for six weeks during summer
vacation were characterized as motion concerning visitation rights and not as one requesting partial
custody, refusal to grant such request was not abuse of discretion. NRS 125.140, subd. 2.
OPINION
Per Curiam:
Appellant Richard C. Howe and Respondent Patricia C. Howe were married in Reno,
Nevada, on September 17, 1960. There are two minor children who are the issue of this
marriage: Theresa Howe, born July 10, 1961, and Daniel Howe, born May 12, 1964.
The parties later separated and entered into a Property Settlement and Child Custody
Agreement on August 23, 1968. The part of the agreement pertinent to this appeal provides
as follows: 2. It has been determined by the parties that the welfare of the minor children of
the parties will be best provided for by their custody with the Wife, subject to the right of the
Husband to visit said children at all reasonable times. . . .
A final Judgment of Divorce was granted to Respondent Patricia C. Howe on September
16, 1968, in the First Judicial District Court, Frank B. Gregory, District Judge. The Judgment
of Divorce incorporated by reference into the decree the provisions of the Property Settlement
and Child Custody Agreement.
The mother and children reside in Carson City while the father and his new wife live in
Las Vegas. In November 1969, appellant contacted respondent to request that the children
visit him in Las Vegas. Respondent advised appellant that she was not in favor of the children
traveling to Las Vegas.
In reaction to respondent's refusal to allow the children to travel to Las Vegas, appellant
filed a Motion to Modify Decree of Divorce on February 10, 1970. Appellant subsequently
filed an Amended Motion to Modify Decree of Divorce on September 24, 1970.
Appellant in his Motion to Modify Decree of Divorce requested the trial court to modify
the visitation provision and specifically provide that he have the right to have the children
visit him in Las Vegas.
87 Nev. 595, 597 (1971) Howe v. Howe
specifically provide that he have the right to have the children visit him in Las Vegas.
Appellant further requested that he be allowed to have the children during Christmas and
Easter vacations for a period of one week and for a period of six weeks during summer
vacation. This appeal is a result of the district court's denial of these requests.
On November 19, 1970, District Judge Frank B. Gregory entered an Order declaring that
the [Appellant] shall have the right to visit with the two minor children and to remove them
from the [Respondent's] home for a period of forty-eight (48) hours, upon the [Appellant]
having given notice to the [Respondent] of the time and the date he requests for the said
visitation. . . . Judge Gregory went on further to expressly state at the hearing held on the
Motion that appellant was to visit the children in the Carson City area.
The sole issue to be decided on this appeal is whether the trial court's determination of
visitation rights and the limitations placed thereon constituted an abuse of discretion.
[Headnotes 1, 2]
If the lower court was correct in characterizing the appellant's Motion as a request for
partial custody of the children, then its Order denying such request was correct in light of the
fact that appellant made no showing that (1) the circumstances of the parents had been
materially altered; or (2) that the children's welfare would be substantially enhanced by a
change in custody. Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968); Ferguson v.
Krepper, 83 Nev. 408, 432 P.2d 668 (1967); Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623
(1966). In any event, there is a presumption on appeal in child custody matters that the trial
court has properly exercised its judicial discretion in determining what is for the best interests
of the child. Cosner v. Cosner, 78 Nev. 242, 245, 371 P.2d 278 (1962). Appellant has failed
to produce any evidence that would warrant setting aside this presumption.
[Headnote 3]
Even if this court should choose to characterize appellant's Motion as one concerning
visitation rights and not as one requesting partial custody, affirmance of the trial court's
decision is similarly compelled by virtue of the vast discretionary powers vested in that court
in cases involving the establishment or modification of visitation rights. NRS 125.140(2).
Given the broad powers of the trial court over such matters, the determination made by the
court did not constitute an abuse of its discretion. Timney v. Timney, 76 Nev. 230, 351 P.2d
611 {1960); Peavey v. Peavey S5 Nev. 571, 460 P.2d 110 {1969); Noble v. Noble S6 Nev.
459
87 Nev. 595, 598 (1971) Howe v. Howe
P.2d 611 (1960); Peavey v. Peavey 85 Nev. 571, 460 P.2d 110 (1969); Noble v. Noble 86
Nev. 459 470 P.2d 430 (1970).
Affirmed.
____________
87 Nev. 598, 598 (1971) Layton v. State
JOHNNY LEE LAYTON, Appellant, v. THE STATE
No. 6548
December 8, 1971 491 P.2d 45
Appeal from jury verdict finding appellant guilty of first degree murder with sentence
imposed at life without possibility of parole. Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
The Supreme Court, Zenoff, C. J., held that prosecutor's comments on defendant's silence
and prior convictions and prison terms, introduction of evidence of crime for which defendant
was not on trial and prosecutor's comment on it, and refusal to instruct jury in precise manner
requested by defendant did not, in aggregate, require reversal of first degree murder
conviction.
Affirmed.
[Rehearing denied February 17, 1972]
Douglas G. Lohse, of Reno, for Appellant.
Robert List, Attorney General, Herbert F. Ahlswede, Chief Deputy Attorney General, and
Robert E. Rose, District Attorney, Washoe County, for Respondent.
1. Criminal Law.
In view of prohibition against prosecutor's comment about defendant's silence, reviewing court must
search record to determine degree of prejudice resulting from such comment even though there was no
objection.
2. Criminal Law.
Mere passing reference to defendant's silence without more does not mandate automatic reversal but
consequences should be governed by consideration of trial as whole.
3. Criminal Law.
Where case was not close as to guilt or innocence, prosecutor's unobjected to comments about
defendant's silence did not require reversal.
4. Criminal Law.
In absence of objection, court would not reverse conviction because of prosecutor's alleged inquiry into
details of defendant's prior felony convictions and comments on defendant's past prison
terms.
prior felony convictions and comments on defendant's past prison terms. NRS 48.020, 48.130.
5. Criminal Law.
Prosecutor's comments on defendant's silence and prior convictions and prison terms, introduction of
evidence of crime for which defendant was not on trial and prosecutor's comment on it, and refusal to
instruct jury in precise manner requested by defendant did not, in aggregate, require reversal of first degree
murder conviction.
OPINION
Johnny Lee Layton was convicted of the murder of a taxi driver named Charles Anderson
on April 28, 1970 in the vicinity of the Mustang brothel east of Reno.
The evidence was entirely circumstantial. On the day of the murder Layton traveled by bus
to Reno from Sacramento and remained in the bus depot area during the afternoon.
Previously, the day before the shooting, he had purchased a 20-gauge shotgun in Sacramento.
In the early evening of the murder day he left the depot for the Mustang brothel in a taxi
driven by Anderson. The taxi was discovered very close to the brothel about 20 minutes from
the time Layton left the Reno bus depot in the taxicab; Anderson, dead from a shotgun blast,
was on the taxi's front seat.
It was established that Layton was at the brothel before and after the time the body was
found. Evidence further showed that afterward he left Mustang for Sparks and from there via
a flatbed railroad car traveled to Ogden, Utah. He carried a black flight bag with him
throughout the course of these events; later, a sawed-off barrel to a 20-gauge shotgun was
found in the restroom of the Ogden pawn shop where Layton had sold the flight bag.
Testifying, Layton admitted substantially all the evidence the state sought to prove except
that he contended the taxi took him all the way to the brothel's gate and that then Anderson
departed, and further, that he had left his shotgun in Sacramento in his brother-in-law's truck.
Based on the taxi's trip log and taxi-meter reading, the evidence indicated that the taxi never
reached the brothel and in fact stopped 8/10 of a mile away, that being the point where it was
found.
The claims of reversible error are directed largely to alleged prosecutorial misconduct and
to consequential accumulation of errors, all of which in the aggregate denied Layton due
process and a fair trial.
Appellate analysis is difficult because Layton's trial counsel failed to properly and timely
object in some instances. For example, the prosecutor in his summation to the jury made
reference to Layton's silence at the time of the arrest. Specific reference was made to Layton's
complete lassitude under circumstances that, according to the prosecutor, an innocent person
ordinarily would protest his arrest violently.
[Headnote 1]
1. As to the error of inappropriate prosecutor comment during trial this court and many
others strongly and consistently scored prosecutorial reference to defendant's silence. In cases
that are close on guilt or innocence such remarks have constituted reversible error. Griffin v.
State of California, 380 U.S. 609 (1965); Gillison v. United States, 399 F.2d 586 (Ct.App.
D.C. 1968); People v. Perez, 373 P.2d 617 (Cal. 1962); People v. Varnum, 450 P.2d 553, 558
(Cal. 1969); cf. Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (1965), and McNeeley v. State,
81 Nev. 663, 409 P.2d 135 (1965). In this case Layton's counsel failed to object, but because
the prosecutor's comment is ipso facto prohibited, our task is to declare error and search the
record to determine its degree of prejudice.
[Headnote 2]
A mere passing reference to defendant's silence without more does not mandate an
automatic reversal. Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1971), but the consequences
should be governed by a consideration of the trial as a whole. Reversal was ordered in Garner
v. State, 78 Nev. 366, 374 P.2d 525 (1962), but in that case this court stressed the defendant's
protection because he appeared without counsel.
[Headnote 3]
We said in Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970), that when an appellant fails
to object specifically to questions asked or testimony elicited during trial, but complains
about them in retrospect upon appeal, we do not consider his contention a proper assignment
of error. Here, defendant's silence was commented upon in the prosecutor's closing argument
without objection and summarily we could remove the issue from our consideration.
But, reviewing the transcribed testimony we would not consider this case close as to guilt
or innocence. The harmless error rule defined in Chapman v. California, 386 U.S. 18 {1967),
is not offended.
(1967), is not offended. It should be emphasized that the instances of prosecutorial
misconduct of this kind are unnecessary risks. The cost factor of reversal with consequential
additional trial expenses to the local county, together with the disappearance of key witnesses
command far more respect from the prosecutors to precedents that clearly proscribe any
comment on the defendant's silence. The failure to object in a case not close is overcome by
the facts, but that does not hold true where the issue of guilt or innocence is doubtful.
[Headnote 4]
2. The district attorney inquired into the details of Layton's prior felony convictions and
commented upon his past prison terms. Questioning of prior felony convictions is allowable
under NRS 48.020 and NRS 48.130 for impeachment purposes, but Layton complains on
appeal that the prosecutor questioned the details of the felonies. Again, no objection was
made and we are without knowledge whether the failure to object in this and other instances
was a defense counsel trial tactic or was inadvertence. Wilson v. State, supra. Furthermore,
we said in Plunkett v. State, 84 Nev. 145, 147, 437 P.2d 92 (1968), we hold that our statutes
do not preclude inquiry into the number and names of the prior felony convictions. It is a
matter addressed to the discretion of the trial judge and he may allow or rule out such inquiry
according to his view of the demands of fairness in the case before him.
[Headnote 5]
3. It is also contended that the trial court erred in admitting evidence of a crime for which
the appellant was not on trial and in allowing the district attorney to comment upon it. The
evidence indicates that when Layton purchased the shotgun in Sacramento he made a false
certification on the Federal Firearms Transaction Record. The penalty for the false statement
is a $5,000 fine or imprisonment. He cites State v. Skaug, 63 Nev. 59, 161 P.2d 708 (1945).
Again, no objection was made to the prosecutor's inquiry. Cross v. State, 85 Nev. 580, 460
P.2d 151 (1969).
Error was also asserted for the trial court's refusal to instruct on reasonable doubt as
requested by the defendant, but the trial court amply and properly instructed the jury although
not in the precise manner requested by the defendant.
Other matters were assigned as error, but we conclude that generally the doctrine of
Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794 (1967), does not fit this case. The aggregate of
alleged errors was not of such substance as to amount accumulatively to a prejudicial
trial if we were to adjudicate these to be errors.
alleged errors was not of such substance as to amount accumulatively to a prejudicial trial if
we were to adjudicate these to be errors.
Affirmed.
Batjer, Mowbray, and Gunderson, JJ., concur.
Thompson, J., concurring:
1. In this case the defendant was represented by the Public Defender of Washoe County, an
able, experienced, competent lawyer. I, therefore, do not wish to second guess about his
failure to object to the several matters mentioned in the opinion of the court. It is sufficient to
note that this trial was not a sham, a farce, or a pretense. Bean v. State, 86 Nev. 80, 465 P.2d
133 (1970). Moreover, the prosecutor was free to discuss all matters of evidence received
before the jury and should not be faulted for doing so. That is the way cases are tried.
2. Comment upon the defendant's silence when arrested was harmless within the context
of this case. The defendant testified fully at trial. Any possible prejudicial inference to be
drawn from the officer's comment upon the defendant's silence when arrested loses
significance in the face of the testimony offered by him in court before the jury. Indeed, the
jury permissibly could infer that had the defendant chosen not to remain silent, his statements
would have substantially conformed to his testimony at trial. Shepp v. State, 87 Nev. 179,
484 P.2d 563 (1971). Respectfully, the majority opinion is too loose since it fails to
distinguish comment upon an accused's pretrial silence in a case where he later testified fully,
from the case where he did not testify at all. In the former situation, such comment is
diminished in significance since the accused has testified fully before those who are to decide
his guilt or innocence, while in the latter situation we must evaluate the prosecutor's comment
upon silence in a vacuum and guess as to its effect.
I concur, with the reservations just expressed.
____________
87 Nev. 603, 603 (1971) Sheriff v. Povey
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v.
FRANCIS MICHAEL POVEY, Respondent.
No. 6445
December 8, 1971 491 P.2d 54
pre-trial habeas corpus with prejudice; John E. Gabrielli, Judge.
The district court granted relief and sheriff appealed. The Supreme Court, Batjer, J., held
that waiver of extradition executed by petitioner did not constitute a written demand for
speedy trial. The court also held that delay between February 4 and September 8 in bringing
petitioner to trial was not such an inordinate delay as would constitute denial of speedy trial.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Larry R. Hicks,
Deputy District Attorney, Washoe County, for Appellant.
H. Dale Murphy, Public Defender, and Jerome M. Polaha, Deputy Public Defender,
Washoe County, for Respondent.
1. Criminal Law.
Waiver of extradition executed by petitioner did not constitute a written demand for speedy trial.
2. Extradition.
Extradition is surrender by one state to another of an individual accused or convicted of an offense in
demanding state.
3. Extradition.
Waiver of extradition is consent directed to courts and officials of sanctuary state authorizing them to
surrender accused to officials of demanding state.
4. Criminal Law.
Delay between February 4 and September 8 in bringing petitioner to trial was not such an inordinate
delay as to constitute denial of right to speedy trial.
5. Habeas Corpus.
Dismissal of charges with prejudice was error, in habeas corpus case in which court found that defendant
had been denied right to speedy trial.
OPINION
On September 15, 1969, the State of Nevada charged the respondent with grand larceny
and embezzlement. On about November 5, 1969, he was arrested in Douglas, Arizona, on
other charges.
November 5, 1969, he was arrested in Douglas, Arizona, on other charges. At that time he
advised the Arizona authorities that he was probably wanted in Nevada. They verified this
information with the Nevada authorities and advised of his whereabouts. The respondent
waived extradition to facilitate his return to Nevada for trial or other disposition of the
charges pending here.
Before the authorities from Nevada arrived, the respondent was taken into custody by two
United States marshals and transported to the county jail in Tucson, Arizona, where he
remained for a period of several weeks. At that time no further effort was made by the
Nevada authorities to return him to this state. Thereafter the respondent was returned to the
federal penitentiary at Steilacoom, Washington to complete an additional 1,563 days for
violating a mandatory release. In January of 1970 he sent a written document to the Second
Judicial District Court of Washoe County, Nevada, demanding a speedy trial. On February 4,
1970, that court appointed the Washoe County Public Defender to represent him and notified
the District Attorney of Washoe County of his demand. On June 3, 1970, the respondent was
transferred to Reno, Nevada, he was arraigned on June 19, 1970, and a preliminary
examination was held on July 2, 1970, at which time he was bound over to district court for
trial. He pled not guilty to the information and trial was set for September 8, 1970. Before
trial, he petitioned for a writ of habeas corpus.
At the hearing upon his petition the district court determined that he had been denied his
constitutional right to a speedy trial; made the writ of habeas corpus permanent; dismissed the
charges against him with prejudice and remanded him to the custody of the federal
authorities. The appellant contends that there was an insufficient showing: (1) that the
respondent adequately demanded his right to a speedy trial, or; (2) that he had been
prejudiced by the delay in bringing him before the courts of this state.
[Headnote 1]
The district court considered the waiver of extradition executed by the respondent to be a
written demand for a speedy trial and based its entire order upon that assumption.
1

A waiver of extradition cannot be considered a demand for a speedy trial as
contemplated by Dickey v. Florida, 39S U.S. 30 {1970), Smith v. Hooey, 393 U.S. 374
{1969), and Stone v. State, S5 Nev. 60
____________________

1
The order releasing the respondent from custody contains the following language: Petitioner voluntarily
waived extradition at about the time of his arrest in October or early November, 1969, and this record fairly
reveals that for all practical purposes he requested a speedy trial at the time and the appropriate authorities were
made aware of it.
a speedy trial as contemplated by Dickey v. Florida, 398 U.S. 30 (1970), Smith v. Hooey, 393
U.S. 374 (1969), and Stone v. State, 85 Nev. 60, 450 P.2d 136 (1969).
[Headnotes 2, 3]
Extradition is the surrender by one state to another of an individual accused or convicted
of an offense in the one which demands his surrender. Terlinden v. Ames, 184 U.S. 270
(1902); Waller v. Jordan, 118 P.2d 450 (Ariz. 1941). A waiver of extradition is a consent
directed to the courts and officials of the sanctuary state authorizing them to surrender the
accused to the officials of the demanding state. It is not a demand for a speedy trial directed to
the authorities seeking the accused's return. Frequently they may never see the waiver.
[Headnote 4]
Here the record reveals that the respondent was taken into custody by the federal
authorities before the officers from the State of Nevada arrived. When he was taken into
federal custody the effect of the waiver of extradition directed to the Arizona officials
terminated and an entirely different procedure became necessary. It was not until February,
1970 that the respondent made an effective demand for a speedy trial upon the Nevada
authorities. The district court did not consider whether the delay between February 4, 1970
and September 8, 1970 deprived the respondent of his constitutional right to a speedy trial.
We have reviewed the record and fail to find such an inordinate delay in bringing the
respondent to trial as would require his release and the dismissal of the charge against him.
[Headnote 5]
The trial court also erred when it dismissed the charges against the respondent with
prejudice. See McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970).
We therefore reverse and remand this case to the district court for further proceedings.
Zenoff, C. J., Mowbray and Thompson, JJ., concur.
I believe the lower court could properly find that respondent's waiver of extradition, taken
with the fact that he caused the Nevada authorities to be notified of his whereabouts and
desire for a trial, constituted a request for a trial. However, because it appears that delays in
prosecuting respondent were not inordinate, in view of the difficulties that beset the State in
its attempts to return him to Nevada for trial, I can concur in the result reached in the
opinion by Mr.
its attempts to return him to Nevada for trial, I can concur in the result reached in the opinion
by Mr. Justice Batjer.
____________
87 Nev. 606, 606 (1971) Derouen v. City of Reno
EDWARD DEROUEN, Appellant, v. CITY OF
RENO, Respondent.
No. 6368
December 15, 1971 491 P.2d 989
Appeal from an order granting summary judgment. Second Judicial District Court,
Washoe County; Grant L. Bowen, Judge.
The district court rendered summary judgment in favor of city in action against it for false
arrest, and plaintiff appealed. The Supreme Court, Batjer, J., held that where claim filed with
city clerk was composed in sufficient detail to completely apprise the city of plaintiff's
grievance and was signed by plaintiff and his attorney, there was substantial compliance with
statute governing claims, though claim was not certified as provided by such statute.
Streeter, Sala & McAuliffe, and Phyllis Halsey Atkins, of Reno, for Appellant.
Robert VanWagoner, City Attorney, and Leslie Leggett, of Reno, for Respondent.
Statute providing that claims against an incorporated city arising out of a tort shall be certified by the
claimant before presentation does not conflict with constitutional provision that corporations may sue and
be sued in all courts in like manner as individuals, though such constitutional provision applies to
municipal corporations. Const. art. 8, 5; NRS 268.020.
Constitutional provision that corporations may sue and be sued in all courts in like manner as individuals
requires that same procedures be followed in the commencement and prosecution of suit against a
municipal corporation as are followed in proceeding against a private corporation or an individual, and the
words in like manner include the time within which relief may be sought; but the provision is not directed
to the existence of a cause of action or right of action and places no restriction upon the legislature's right
to limit cause of action or right of action. Const. art. 8, 5.
3. Fraud.
Any claim containing false or fraudulent claims, whether or not verified under oath, can be basis for
charge under statute providing that presentment of any false or fraudulent claim to any officer or board of
any political subdivision shall constitute a gross misdemeanor. NRS 197.160.
Where claim requesting damages for false arrest was composed in sufficient detail to completely apprise
city of claimant's grievance and was signed by claimant and his attorney, there was substantial compliance
with statute governing claims, though the claim was not certified as provided by statute. NRS 41.036,
subd. 1, 268.020, subds. 1, 2.
OPINION
On January 30, 1969 the appellant filed with the respondent's city clerk a written notice of
a request for damages claiming a false arrest. The claim was denied. On August 4, 1969 the
appellant filed his complaint. After the respondent answered it filed a motion for summary
judgment alleging that appellant's claim was barred by NRS 41.036(1)
1
because he had not
complied with NRS 268.020(1)(2)
2
which requires certification before presentation.
Summary judgment was granted.
[Headnote 1]
In his appeal from that judgment the appellant claims that the trial court erred as a
matter of law.
____________________

1
NRS 41.036(1): No action shall be brought under NRS 41.031 . . . against a city without complying with
the requirements of NRS 268.020, . . .

2
NRS 268.020(1)(2): 1. All demands and accounts and all claims of whatsoever kind, character or nature,
or however the same may have originated against any incorporated city in this state, must be presented to the city
council of the city, in writing, within 6 months from the time such demands or accounts became due or payable,
and within 6 months from the time the acts from which the claims originated shall happen. Claims for property
damage, personal injuries and any other claim arising out of a tort shall be certified by the claimant before
presentation. No other claim or account need be certified. The certification required by this subsection shall be
in substantially the following form: I hereby certify that the above and foregoing claim against the City of
_____________, State of Nevada, is just and reasonable, and that the claim is now due, owing and unpaid.'
2. No such demand, account or claim against any incorporated city in this state shall be audited, considered,
allowed or paid by the city council or any officer or officers of the incorporated city unless the provision of
subsection 1 shall have been strictly complied with.
the trial court erred as a matter of law. In support of this contention he argues that NRS
268.020 is unconstitutional because it is in direct conflict with Art. 8, 5, of the Nevada
Constitution.
Article 8 of the Nevada Constitution deals with Municipal and Other Corporations.
Section 5 of that article provides that Corporations may sue and be sued in all courts, in like
manner as individuals. In Lincoln County v. Luning, 133 U.S. 529, 531 (1890), the High
Court, specifically referring to Art. 8, 5, of the Nevada Constitution, held: [T]hat this
section is not to be limited to private corporations is evident not alone from the generality of
its language and from the title of the article, but also from several sections therein in which
municipal corporations are expressly named.
[Headnote 2]
As used in Art. 8, 5, supra, the phrase in like manner means a similar method of
procedure. The same procedures must be followed in the commencement and prosecution of a
suit against a municipal corporation as are followed in proceeding against a private
corporation or an individual. The words in like manner import not only similarity in
technical methods as to procedure, but also as to the time within which relief may be sought.
Beal v. Lynch, 136 N.E. 172, 174 (Mass. 1922).
However, there is nothing in this record to indicate an inconsistency in the requirements
for the commencement and prosecution of this lawsuit. The constitutional mandate is not
directed to the existence of a cause of action or a right of action, but only to the lawsuit itself.
The statute provides that no action shall be brought without complying with the requirements
of NRS 268.020. This court has held that a cause of action and a right of action are
synonymous. Lewis v. Hyams, 26 Nev. 68, 81, 63 P. 126, 127 (1900).
No constitutional restriction has been placed upon the legislature's right to limit a cause of
action or a right of action. Here the appellant's right of action depended upon compliance with
NRS 268.020. The trial court found insufficient compliance to support the bringing of an
action. The appellant contends that although he may not have strictly complied with NRS
268.020 there was substantial compliance, and that if he had not substantially complied he
was entitled to amend his claim in order to comply. The respondent, relying upon cases
construing statutes requiring verification, contends that the appellant's uncertified claim does
not amount to substantial compliance.
compliance. Redlands High School Dist. v. Superior Court, 125 P.2d 490 (Cal. 1942).
[Headnote 3]
The appellant counters by asserting that certification is not synonymous with verification
and for that reason the cases relied upon by respondent are all distinguishable. We agree that
a verification and the specific certification as required by NRS 268.020 are not synonymous,
for NRS 268.020 does not require an oath. The legislature apparently provided for
certification to prevent the filing of spurious claims against municipalities, and set out a
specific form of certification but only required it to be substantially followed. Where a
verification is required by statute the courts have usually found it to be essential for validity
because it can be the foundation for a perjury charge. In this state, however, any claim
containing false or fraudulent claims can be the basis for a charge under NRS 197.160.
3

[Headnote 4]
Substantial compliance with statutory requirements is sufficient. Hansen-Neiderhauser v.
Nev. Tax Comm'n, 81 Nev. 307, 402 P.2d 480 (1965); City of Reno v. Fields, 69 Nev. 300,
250 P.2d 140 (1952). Here there was substantial compliance with the statutory requirement of
notice of the appellant's claim against the respondent in spite of the fact that it did not contain
the statutory words of certification. The claim was composed in sufficient detail to
completely apprise the respondent of the appellant's grievance and it was signed by the
appellant and his attorney. The purpose of NRS 268.020(1)(2) is to advise an incorporated
city of a valid claim against it. It was never intended to be a trap for the unwary. A
certification upon a claim in no way enhances the prosecution of a person filing a false claim.
In Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969), we held that timely service upon the
Secretary of State, who is a member of the State Board of Examiners, rather than the
ex-officio clerk of the State Board of Examiners, was substantial compliance. In that case, at
363, we said: To hold that such claims must be presented to the clerk, and that
presentation to a member of the board is ineffective, would exalt form over substance.
____________________

3
NRS 197.160: Every person who, with the intent to defraud, shall knowingly present for audit, allowance
or payment to any officer or board of the state or of any county, city, town, school or other district authorized to
audit, allow or pay bills, claims or charges, any false or fraudulent claim, account, writing or voucher or any bill,
account or demand containing false or fraudulent charges, items or claims shall be guilty of a gross
misdemeanor.
that such claims must be presented to the clerk, and that presentation to a member of the
board is ineffective, would exalt form over substance. This, we decline to do, and rule that the
claims were presented on March 8, 1968 when served upon the Secretary of State.
Here notice was timely filed with the respondent, it acted upon the claim and denied it.
Certification on the claim would not have materially added to its content nor to its validity.
We find that there was adequate compliance by the appellant with the legislative
requirements of notice of his claim against the city. The district court erred in granting the
respondent's motion for summary judgment. The appellant's other claims of error need not be
considered.
Zenoff, C. J., Mowbray and Gunderson, JJ., and Compton, D. J., concur.
___________
87 Nev. 610, 610 (1971) Peoples v. Warden
ROBERT G. PEOPLES, Appellant, v. WARDEN,
No. 6525
December 15, 1971 491 P.2d 719
Appeal from order entered by Fifth Judicial District Court, Nye County, Kenneth L. Mann,
Judge, denying petition for post-conviction relief.
Petitioner appealed from order of the district court denying post-conviction relief,
following first-degree murder conviction. The Supreme Court, Mowbray, J., held that the
evidence was sufficient to sustain the conviction.
Affirmed.
Zenoff, C. J., dissented.
Gary A. Sheerin, of Carson City, for Appellant.
Robert List, Attorney General, and William P. Beko, District Attorney, Nye County, for
Respondent.
Homicide.
Evidence as to threats by defendant, shooting of decedent, and act of defendant in driving away from
medical center after shooting despite claim he was seeking medical attention for victim
supported first-degree murder conviction.
shooting despite claim he was seeking medical attention for victim supported first-degree murder
conviction.
OPINION
Petitioner Peoples has appealed from an order of the Fifth Judicial District Court denying
his petition for post-conviction relief, which order we affirm.
Peoples was tried to a jury and convicted of first-degree murder. The conviction was
affirmed on direct appeal to this court. Peoples v. State, 83 Nev. 115, 423 P.2d 883 (1967).
Peoples then sought relief in the federal courts. He filed a petition for habeas relief in the
United States District Court for the District of Nevada. That petition was denied. Peoples
appealed from that order of denial to the United States Ninth Circuit Court of Appeals. The
Ninth Circuit denied his application for habeas and affirmed the order of the United States
District Court. See Peoples v. Hocker, 423 F.2d 960 (9th Cir. 1970).
Peoples returned to the state courts and filed a state application for post-conviction relief.
The district judge of the Fifth Judicial District Court denied that petition, and Peoples has
now appealed to this court seeking relief.
The principal predicate upon which Peoples seeks relief in his present petition is his claim
that there is insufficient evidence in the record to support the jury's verdict. We do not agree.
The United States District Court, in denying Peoples' petition for habeas, ruled on this precise
point and found the record sufficient to support the verdict. The United States Court of
Appeals affirmed the Federal District Court. Peoples v. Hocker, supra. The Ninth Circuit
Court, in reviewing the facts as reflected in the record of the trial proceedings, said:
. . . On June 10, 1965 Peoples arrived in Beatty, Nevada and was met by one Dillard R.
Morton and the two children of Sharon Wilson, the decedent. Peoples was driven to the El
Portal Motel where he left his luggage in the room occupied by Sharon Wilson. Peoples,
Morton and the children then drove to the Oasis Bar where Sharon was employed. While
Peoples was talking with her in the bar a pistol which he was carrying was discharged
through his pocket and the bullet struck the floor near Sharon. Peoples then ushered the girl
and her two children into Morton's car and they returned to the motel. In the bar Peoples was
overheard threatening Sharon by saying that he was going to kill her.
the bar Peoples was overheard threatening Sharon by saying that he was going to kill her. At
the motel, Peoples, Morton and Sharon were alone in a room. A shot was fired which passed
through Sharon's shoulder, crossed her chest cavity piercing her heart, and came out on the
right side of her body. Peoples and Morton carried her out to Morton's car where she was
wedged between the front and back seats of the car. Her two children were put in the front
seat and the car was driven back to the Oasis Bar. As it arrived behind the Oasis the
occupants were approached by a deputy sheriff who was investigating the shot that had been
fired inside the bar. When the deputy had questioned Peoples and Morton about the earlier
shot, he looked inside the car and saw the woman in the back and an automatic pistol on the
front floor. The children were still seated in the front seat.
Peoples and Morton were both charged with first degree murder. They contended that
Sharon had committed suicide and that they had put her in the car with the intent of securing
medical attention. However they drove toward the bar and away from the local medical
center. The prosecution argued that Peoples, who had threatened Sharon's life on previous
occasions, had killed her. Peoples was convicted.
It is clear that there is sufficient evidence in the record to support the jury's verdict.
Peoples has asserted other specifications of error in his present petition that we find
equally meritless. Finally, he argues, as he did before the Ninth Circuit Court, that even if the
individual allegations of error are insufficient to support his petition for post-conviction
relief, the aggregate of all of them amounts to a denial of due process. We do not agree, for,
as the Ninth Circuit Court ruled, . . . [T]he things of which Peoples complains were not
errors at all, let alone errors of constitutional magnitude.
1

We find no merit in Peoples' appeal, and we therefore deny his petition and affirm the
order of the district court.
Batjer and Thompson, JJ., and Barrett, D. J., concur.
____________________

1
Peoples has failed to comply with the mandate of NRS 177.375, which provides:
All grounds for post-conviction relief available to a petitioner must be raised in his original, supplemental
or amended petition. Any ground not so raised or finally adjudicated or knowingly and understandingly waived
in the proceedings resulting in the conviction or sentence or in any other proceeding that the petitioner has taken
to secure relief from his conviction or sentence may not be the basis for a subsequent petition, unless the court
finds a ground for relief asserted which for reasonable cause was omitted or inadequately raised in the original,
Zenoff, C. J., dissenting:
We are bound by the record and what it reflects. An objective examination of it must lead
to the conclusion that the penalty of life imprisonment without possibility of parole is not
justified. Perhaps, this court should again find a reason to undo an injustice such as it claimed
to do in Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969), for in this case respected
members of our profession have examined the transcript and have agreed that Peoples is
serving a sentence for a premeditation that is not at all established in the record.
For instance, the Honorable Bruce Thompson of the United States District Court, at Reno,
Nevada, pointedly stated when the matter was before him that an injustice has been done in
this case. The theory of the state, he said, that petitioner deliberately shot and murdered
the victim strains credulity . . . The record is barren of evidence of any motive for a deliberate
homicide. Proof of the victim's suicidal tendencies is uncontradicted.
That respected jurist added, That the prior felony records of Peoples and his
co-defendant, Morton, while they cast doubt upon the credibility of their testimony,
undoubtedly influenced the jury to draw all possible inferences in support of a finding of
guilt. The fact that Morton, who was charged with holding the victim while Peoples shot
her, was permitted to plead guilty to involuntary manslaughter, is without a doubt of
significance.
As Judge Thompson stated, the police work on the case was not the best, also, there is a
complete absence of any motive for Peoples to shoot the girl. His anger at her earlier was
directed to her own drinking.
An incident took place in a Beatty bar prior to their retiring to a motel room which
involved the shooting of the gun by Peoples. If he intended to shoot her, he could have done
so because they were within a few feet of each other. He claimed that the firing of the weapon
was accidental. The explanation of his possession of the gun was reasonable, i.e., he had
picked it up for a friend who had forgotten it at the Oasis Bar in Beatty and was returning it to
the friend who was a real estate woman in Santa Barbara, California. This was corroborated
by the woman.
1

____________________
supplemental or amended petition. See also Mr. Justice Zenoff's concurring opinion in Nall v. Warden, 86 Nev.
489, 491, 471 P.2d 218, 219 (1970); and Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971).

1
At trial, she testified that the gun was hair trigger. Later, investigation disclosed that it was not.
My point is simply that the record does not support a penalty of life imprisonment without
possibility of parole. The facts are that while Peoples, Morton and the victim were in the
motel room in Beatty a shot rang out as Morton stepped from the bathroom. He did not see
the actual shooting. Peoples' explanation was that the girl grabbed for the gun which was on a
table nearby intending to shoot herself and that he grappled with her for the gun which went
off, fatally wounding her. At that point they could have run and left the victim dying. Instead,
they took her with the children to the bar to seek a doctor. Indeed, there are facts to show that
Morton at least knew of a registered nurse in the town nearby to the motel but for some
unexplained reason they first sought a doctor. While the victim was lying in the car she died.
On the facts as they were presented, the deliberateness and malice aforethought that is
required of first degree murder cannot be found. The difference is, of course, that a lesser
degree means a lesser penalty.
Perhaps, this is more properly a case for the Board of Pardons. That body has refused to
act until the legal avenues have been exhausted, but, nevertheless, I now, as previously, desire
that my views be known.
Under our powers provided by NRS 177.265, I would modify the judgment to life with
possibility of parole.
____________
87 Nev. 614, 614 (1971) Whittley v. Sheriff
DELMAR DILLARD WHITTLEY, Appellant, v. SHERIFF,
No. 6659
December 27, 1971 491 P.2d 1282
Appeal from order of Eighth Judicial District Court, Clark County, denying pre-trial
petition for writ of habeas corpus; John F. Mendoza, Judge.
Habeas corpus proceeding by petitioner charged with involuntary manslaughter after his
motor vehicle collided with another killing two people. The district court denied the writ, and
petitioner appealed. The Supreme Court held that results of chemical analysis of petitioner's
blood were admissible at preliminary examination without affirmative showing that vial into
which blood sample was placed, and petitioner's arm, had not been adulterated by cleansing
alcohol.
Affirmed.
Robert G. Legakes, Public Defender, and Jeffrey D. Sobel, Assistant Public Defender,
Chief Deputy of Appeals, Clark County, for Respondent.
1. Criminal Law.
Preliminary examination is not a trial, and state, at preliminary examination, is charged only with burden
of showing that crime has been committed and that accused probably committed it, rather than with proving
guilt beyond a reasonable doubt as required at trial.
2. Criminal Law.
Results of chemical analysis of blood of petitioner, charged with involuntary manslaughter after his motor
vehicle collided with another killing two people, were admissible at preliminary examination without
affirmative showing that vial into which blood sample was placed, and petitioner's arm, had not been
adulterated by cleansing alcohol.
3. Homicide.
Preliminary examination evidence that chemical analysis of blood of petitioner, whose motor vehicle
collided with another killing two people, showed blood alcohol content of .183, that speed of his vehicle at
time of accident was at rate in excess of 80 miles per hour, that he had been seen taking several drinks from
liquor bottle prior to accident, and that partially empty bottle of liquor was found in his vehicle after the
accident supported charge of involuntary manslaughter. NRS 200.070.
OPINION
Per Curiam:
The appellant's motor vehicle collided with another, and two people were killed in the
accident. The appellant was charged with involuntary manslaughter in violation of NRS
200.070. After a preliminary examination he was bound over to the district court for trial. He
sought a writ of habeas corpus on the grounds that there was not sufficient evidence to
constitute probable cause to support the charge. The writ was denied, and this appeal was
taken.
At the preliminary examination the state introduced into evidence the results of a chemical
analysis of the appellant's blood, which showed a blood alcohol content of .183. The test
results had been received by the magistrate over the appellant's objection. He had contended
that the test results were inadmissible, absent an affirmative showing by the state that the
blood sample had not been adulterated by alcohol or antiseptic on his arm or by alcohol in the
vial into which the blood sample was placed.
sample was placed. He argued that such an affirmative showing was a prerequisite to the
admissibility of the blood sample into evidence.
Other evidence presented by the state at the preliminary examination placed the speed of
the appellant's vehicle at a rate in excess of 80 miles per hour. There was testimony that the
appellant had been seen taking several drinks from a bottle of liquor prior to the accident. An
inventory of the appellant's vehicle after his arrest included a partially empty bottle of liquor.
The sole issue presented by this appeal is whether there was sufficient evidence offered at
the preliminary examination to constitute probable cause to bind the appellant over for trial.
The unlawful act alleged by the state to have been committed by the appellant to support the
involuntary manslaughter charge was driving under the influence of intoxicating beverage.
We find that the evidence adduced was sufficient to support the charge, at the preliminary
examination before the magistrate.
[Headnote 1]
A preliminary examination is not a trial. Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86
(1969). At the preliminary examination, where the state is charged only with the burden of
showing that a crime has been committed and that the accused probably committed it, the
quantum of proof is not so great as at the trial, where the state's burden is to prove guilt
beyond a reasonable doubt. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969); Miner v.
Lamb, 86 Nev. 54, 464 P.2d 451 (1970); Lamb v. Cree, 86 Nev. 179, 466 P.2d 660 (1970).
Moreover, we have held that to commit a defendant for trial the state is not required to negate
all inferences but need only present enough proof to support a reasonable inference that the
accused committed the offense. Lamb v. Holsten, 85 Nev. 566, 459 P.2d 771 (1969).
[Headnotes 2, 3]
Thus there is no merit to the appellant's contention that, at the preliminary examination,
the results of the chemical analysis of his blood were inadmissible without an affirmative
showing that the vial and his arm had not been adulterated by cleansing alcohol. We agree
with the magistrate's finding that there was sufficient evidence presented by the state to
support the charge against the appellant, and consequently the order of the district court
denying the writ of habeas corpus is affirmed.
of the district court denying the writ of habeas corpus is affirmed.
____________
87 Nev. 617, 617 (1971) Paradise Homes v. District Court
PARADISE HOMES, a Corporation, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, and
HONORABLE JOSEPH S. PAVLIKOWSKI, Judge Thereof, Respondents.
No. 6581
December 29, 1971 491 P.2d 1277
Petition for writ of prohibition to Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Original proceedings in prohibition. The Supreme Court held that where plaintiff did not
pursue the one action for recovery of debt or for enforcement of right secured by mortgage or
lien upon real estate as required by statute and did not take itself outside ambit of the statute
and plaintiff's second amended and supplemental complaint constituted culmination of an
attempt to enlarge plaintiff's rights through procedures not cognizable by the law, district
court would be prohibited from trying issues plaintiff intended to raise by the pleading.
Petition granted, writ of prohibition made permanent.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Petitioner.
Beckley, De Lanoy & Jemison, of Las Vegas, for Respondents.
1. Prohibition.
Although a purported pleading is before respondent court, a writ of prohibition may issue if court is
proceeding without or in excess of jurisdiction. NRS 34.320 et seq.
2. Prohibition.
Where plaintiff did not pursue the one action for recovery of debt or for enforcement of right secured by
mortgage or lien upon real estate as required by statute and did not take itself outside ambit of the statute
and plaintiff's second amended and supplemental complaint constituted culmination of an attempt to
enlarge plaintiffs rights through procedures not cognizable by the law, district court would be
prohibited from trying issues plaintiff intended to raise by the pleading. NRS 34.320
et seq., 40.430-40.450.
the law, district court would be prohibited from trying issues plaintiff intended to raise by the pleading.
NRS 34.320 et seq., 40.430-40.450.
OPINION
Per Curiam:
[Headnotes 1, 2]
Petitioner Paradise Homes (defendant below) asks us to prohibit the respondent court from
trying issues Nevada Savings and Loan Association (plaintiff below) has attempted to raise
by a pleading styled Second Amended and Supplemental ComplaintAction for Deficiency
Judgment. Although a purported pleading is before the respondent court, a writ of
prohibition may issue if the court is proceeding without or in excess of jurisdiction. NRS
34.320 et seq; cf. Tab Constr. Co. v. District Court, 83 Nev. 364, 432 P.2d 90 (1967).
Because plaintiff's second amended and supplemental complaint constitutes culmination of
an attempt to enlarge plaintiff's rights through procedures not cognizable by our law, we
therefore make permanent the alternative writ of prohibition hereinbefore entered.
In May, 1967, the plaintiff filed an action for deficiency judgment before a trustee's sale
of the property securing petitioners' promissory note to the plaintiff. Contemporaneously,
plaintiff recorded a lis pendens against property of the petitioner not covered by the deed of
trust. Having thus invoked the respondent court's jurisdiction, the plaintiff caused nonjudicial
trustee's sale of the security, purchasing the security for itself at a price resulting in a
deficiency. Then, the plaintiff filed a purported amended complaint, alleging the
completed trustee's sale and deficiency. Thereafter, the plaintiff filed the so-called second
amended and supplemental complaint that is challenged herein, setting up the
aforementioned trustee's sale and resulting deficiency. Under the latter pleading, plaintiff
proceeded to attach property of petitioner that it had theretofore held under its lis pendens.
It is clear that the plaintiff did not pursue the one action for the recovery of any debt, or
for the enforcement of any right secured by mortgage or lien upon real estate which NRS
40.430 required to be in accordance with the provisions of NRS 40.440 and 40.450. It is
also clear that the plaintiff did not take itself outside the ambit of those statutes, by first
causing a nonjudicial trustee's sale under the deed of trust, and thereafter seeking a deficiency
judgment. Cf. Paramount Ins. v. Rayson & Smitley, S6 Nev. 644
Rayson & Smitley, 86 Nev. 644, 472 P.2d 530 (1970); cf. Nevada Land & Mtge. v. Hidden
Wells, 83 Nev. 501, 435 P.2d 198 (1967); cf. McMillan v. United Mortgage Co., 82 Nev.
117, 412 P.2d 604 (1966). Instead, the plaintiff has sought to pursue a hybrid course of
action, contrary to the holdings of this court, to obtain advantages not contemplated thereby.
1

The writ is made permanent.
____________________

1
In McMillan, we said: In the absence of a preclusive statute, two remedies are open on default to the holder
of a secured promissory note. The debt may be enforced by a suit on the note, or by a sale of the land. At
common law the creditor could pursue either remedy, or both at once. 82 Nev., at 119. Although we determined
a suit on the note under NRS 40.430 did not preclude suit for deficiency after trustee's sale of the land, we
expressly stated: Once the security has been sold and the debt not satisfied, an action on the note . . . is
permissible. 82 Nev., at 122. We also indicated that the holder of a note, secured by trust deed, must first
exhaust the security before an action on the note and ancillary attachment is permissible. 82 Nev., at 122.
In the Nevada Land & Mtge. case, we said the remedies of a trustee's sale and a deficiency judgment cannot
be pursued simultaneously, but that a party can bring an action on the note for a deficiency judgment after the
trustee sale. 83 Nev., at 504; emphasis in original.
Thus, we quite clearly stated that Nevada law permitted two actions only, not three or four, and not such
blend of both as may be to the creditor's advantage.
(In 1969, our legislature enacted specific judicial safeguards for deficiency judgments after nonjudicial sales.
NRS 40.457 et seq. In Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971), we held such safeguards
applicable to deeds of trust executed before their effective date but foreclosed afterward, leaving open the
question of their applicability to foreclosures completed before their effective date. The instant case involves a
situation of the latter type; however, the applicability of NRS 40.457 et seq. to it need not be decided.)
____________
87 Nev. 619, 619 (1971) Reno Raceway, Inc. v. Sierra Paving
RENO RACEWAY, INC., and L. A. DUNSON, INC., Appellants,
v. SIERRA PAVING, INC., Respondent.
No. 6556
December 29, 1971 492 P.2d 127
Appeal from an order of the Second Judicial District Court, Washoe County, refusing to
set aside a default judgment; John F. Sexton, Judge.
The Supreme Court held that where defendants had appeared in the action and plaintiff
failed to serve upon defendants written notice of its application for default judgment, such
failure voided the judgment.
87 Nev. 619, 620 (1971) Reno Raceway, Inc. v. Sierra Paving
written notice of its application for default judgment, such failure voided the judgment.
J. Rayner Kjeldsen, of Reno, for Appellants.
Seymour H. Patt, of Reno, for Respondent.
Judgment.
Where defendants had appeared in the action and plaintiff failed to serve upon defendants written
notice of its application for default judgment, such failure voided the judgment. NRCP 55(b)(2).
OPINION
Per Curiam:
This appeal is from an order of the district court refusing to set aside a default judgment
entered against defendants who had appeared in the action. The record shows that the plaintiff
failed to serve written notice of its application for default judgment upon the defendants as
required by NRCP 55(b)(2).
1
This failure voids the judgment. Ray v. Stecher, 79 Nev. 304,
311, 383 P.2d 372 (1963). The appellants are given ten days after remittitur within which to
answer.
____________________

1
Rule 55(b)(2): . . . If the party against whom judgment by default is sought has appeared in the action,
he . . . shall be served with written notice of the application for judgment at least 3 days prior to the hearing on
such application. . . .
____________
87 Nev. 620, 620 (1971) Welfare Div. v. Washoe Co. Welfare
WELFARE DIVISION OF THE NEVADA STATE DEPARTMENT OF HEALTH,
WELFARE AND REHABILITATION, Appellant, v. WASHOE COUNTY WELFARE
DEPARTMENT, Respondent.
No. 6574 and No. 6628
December 29, 1971 491 P.2d 1281
Consolidated appeals from decisions of the Second Judicial District Court, Washoe
County; John E. Gabrielli, District Judge in Case No. 6574; Thomas O. Craven, District
Judge in Case No. 6628.
87 Nev. 620, 621 (1971) Welfare Div. v. Washoe Co. Welfare
Appeals from decisions of the district court transferring legal custody of minor children.
The Supreme Court held that question whether statute providing that State shall assume
responsibility for care of handicapped child embraces a mentally retarded child was moot
inasmuch as the children whose custody was transferred from county welfare department to
State Department of Health, Welfare and Rehabilitation were handicapped both mentally and
physically.
Affirmed in each case.
Robert List, Attorney General, and Margie Ann Richards, Deputy Attorney General, for
Appellant.
Robert E. Rose, District Attorney, and William L. Hadley, Deputy District Attorney,
Washoe County, for Respondent.
Action.
Question whether statute providing that State shall assume responsibility for care of handicapped
child embraces a mentally retarded child was moot inasmuch as the children whose custody was
transferred from county welfare department to State Department of Health, Welfare and Rehabilitation
were handicapped both mentally and physically. NRS 432.010 et seq., 435.010 et seq.
OPINION
Per Curiam:
This is a consolidated appeal from district court decisions transferring the legal custody of
two minor children from the Washoe County Welfare Department to the Welfare Division of
the Nevada State Department of Health, Welfare and Rehabilitation. In each instance the
child was shown to be mentally retarded and, to some degree, physically handicapped as well.
Relevant statutes provide that the County shall care for mentally retarded children [NRS ch.
435], and that the State shall assume responsibility for the care of the handicapped child
[NRS ch. 432]. We do not here decide the appellant-State's contention that a handicapped
child within the meaning of ch. 432 does not embrace a mentally retarded child, since the
minor children here involved are handicapped both mentally and physically. Indeed, this
definitional controversy between welfare departments is best resolved legislatively, and we
invite legislative attention to the problem.
Affirmed.
____________
87 Nev. 622, 622 (1971) Bustos v. Sheriff
GEORGE DANIEL BUSTOS, Appellant, v. SHERIFF,
No. 6635
December 29, 1971 491 P.2d 1279
Appeal from an order of the Eighth Judicial District Court, Clark County, denying habeas
corpus; Howard W. Babcock, District Judge.
Petition for habeas corpus alleging that justice of peace had illegally granted a continuance
of a scheduled preliminary examination. The district court denied relief and petitioner
appealed. The Supreme Court, Thompson, J., held that where subpoenas had been issued and
served upon witnesses almost one month before scheduled hearing, prosecutor did not learn
of their unavailability until he appeared for the hearing and he could have shown good cause
in support of his request for continuance had magistrate required his sworn testimony in lieu
of a Hill affidavit and such method of showing cause had not theretofore been suggested,
magistrate did not err in granting continuance.
Affirmed.
George Foley, of Las Vegas, for Appellant.
1. Criminal Law.
Prosecutor should be prepared to present his case to magistrate at time scheduled or show good cause for
his inability to do so.
2. Criminal Law.
Where subpoenas had been issued and served upon witnesses almost one month before scheduled
preliminary examination, prosecutor did not learn of their unavailability until he appeared for the hearing
and he could have shown good cause in support of his request for continuance had magistrate required his
sworn testimony in lieu of a Hill affidavit and such method of showing cause had not theretofore been
suggested, magistrate did not err in granting continuance. NRS 171.196, subd. 2.
3. Criminal Law.
Where prosecutor does not learn that witnesses will not be present until he appears for scheduled
preliminary examination, and he does not have time to prepare a Hill affidavit in support of his request
for continuance, procedure whereby prosecutor would be sworn and orally testify to same factual matters
that would be stated in affidavit form were time available would satisfy purposes of
Hill doctrine and establish a record for review.
would be stated in affidavit form were time available would satisfy purposes of Hill doctrine and establish
a record for review. NRS 171.196, subd. 2.
OPINION
This is an appeal from a district court denial of habeas corpus. The petition for discharge
from restraint alleged that the justice of the peace illegally granted a continuance of a
scheduled preliminary examination in that he failed to honor the directive of Hill v. Sheriff,
85 Nev. 234, 452 P.2d 918 (1969). In that case we ruled that the reasons underlying DCR 21
are equally appropriate to the continuance of a criminal proceeding in the justices' court and
that statutory good cause for continuance [NRS 171.196(2)] contemplates that the party
seeking a continuance of a preliminary examination upon the ground of the absence of
witnesses must prepare and submit to the magistrate an affidavit stating the names of the
absent witnesses and their present residences if known, the diligence used to procure their
attendance, a brief summary of their expected testimony and whether the same facts can be
proven by other witnesses, when it was first learned that the attendance of the witnesses could
not be obtained, and that the continuance was sought in good faith and not for delay.
The intendment of Hill, supra, has since been applied to related situations wherein there
was a willful failure of the prosecution to comply with important procedural rules, Maes v.
Sheriff, 86 Nev. 317, 468 P.2d 332 (1970), and where the prosecutor had exhibited a
conscious indifference to rules of procedure affecting the defendant's rights, State v. Austin,
87 Nev. 81, 482 P.2d 284 (1971).
In the case at hand, however, the magistrate and apparently the district court as well,
believed that the circumstances were different from those presented to the court in Hill, Maes,
and State v. Austin. For example, in Hill the prosecutor had not caused subpoenas to be
issued and served upon the witnesses. Here, subpoenas were issued and served upon the
witnesses almost one month before the scheduled hearing and the prosecutor did not learn of
their unavailability until he appeared for the hearing. There is nothing in the record to suggest
a willful disregard of the rules, Maes v. Sheriff, supra, nor a conscious indifference to the
rights of the defendant, State v. Austin, supra.
supra. Consequently, the respondent contends that the magistrate acted within permissible
limits in granting a one week continuance without requiring compliance with Hill v. Sheriff,
supra, and that the district court did not err in denying habeas relief.
[Headnote 1]
The prophylactic effect of the doctrine of Hill is worthwhile. A prosecutor should be
prepared to present his case to the magistrate at the time scheduled or show good cause for
his inability to do so. This is not an unfair burden. The business of processing criminal cases
will be frustrated if continuances are granted without good cause.
[Headnotes 2, 3]
The problem posed here is one of time. The prosecutor did not learn that the witnesses
would not be present until he appeared for the hearing. Until that moment he had every reason
to believe that the subpoenas would be obeyed. The prosecutor did not have time to prepare a
Hill affidavit in support of his request for a continuance. In these circumstances the
prosecutor need only be sworn and orally testify to the same factual matters that would be
stated in affidavit form were time available to prepare one. This procedure would satisfy the
purposes of the Hill doctrine and establish a record for review.
In this case it is reasonably clear that the prosecutor could have shown good cause had the
magistrate required his sworn testimony in lieu of affidavit, and since this method of showing
cause has not heretofore been suggested we shall not fault the magistrate for granting a
continuance in this instance, nor the district court for denying habeas relief. Hill v. Sheriff,
supra.
Affirmed.
____________
87 Nev. 624, 624 (1971) Gallues v. Harrah's Club
JOYCE E. GALLUES, Appellant, v. HARRAH'S
CLUB, Respondent.
No. 6547
December 29, 1971 491 P.2d 1276
Appeal from judgment of the Second Judicial District Court, Washoe County, entered on
jury verdict; Thomas O. Craven, Judge.
Defamation action pertaining to defendant club's dissemination to supervisory personnel of
unverified information that plaintiff had been fired from position as dealer for form of
cheating in which money is passed across gaming table by dealer to a confederate and that
plaintiff had been in collusion with person rumored to have operated cheating school. The
district court entered judgment for club, and plaintiff appealed. The Supreme Court,
Thompson, J., held that evidence warranted finding that dissemination of information was
made in good faith, without malice to plaintiff, with belief in its probable truth, and solely for
purpose of protecting security of club and integrity of its gaming facilities, and thus that
club's conditional privilege was not abused.
Affirmed.
Wait & Shamberger, of Reno, for Respondent.
Where plaintiff did not object, in defamation action, to instruction that information in question was
published on a conditionally privileged occasion, issue as to whether defense of conditional privilege was
available would not be considered on appeal.
2. Libel and Slander.
Evidence, in defamation action pertaining to club's dissemination to supervisory personnel of
unverified information that plaintiff had been fired from position as dealer for form of cheating in which
money is passed across gaming table by dealer to a confederate and that plaintiff had been in collusion
with person rumored to have operated cheating school, warranted finding that dissemination of
information was made in good faith, without malice to plaintiff, with belief in its probable truth, and
solely for purpose of protecting security of club and integrity of its gaming facilities, and thus that club's
conditional privilege was not abused.
OPINION
This is an action by Joyce Gallues to recover damages for defamation of her character. The
jury returned its verdict for the defendant, Harrah's Club. Although publication of defamatory
matter to supervisory personnel was admitted by Harrah's, it contended that the information
was published upon a conditionally privileged occasion and that the occasion was not
abused.1 We are asked to set aside the judgment entered upon the verdict on the grounds
that the defense of conditional privilege was not available to Harrah's and, alternatively,
if available, the privileged occasion was abused.
abused.
1
We are asked to set aside the judgment entered upon the verdict on the grounds that
the defense of conditional privilege was not available to Harrah's and, alternatively, if
available, the privileged occasion was abused.
The relevant facts are these: Joyce Gallues and two other 21 dealers were terminated at the
Holiday Hotel without explanation. Several days later the assistant general manager of
Harrah's Reno received a telephone call from an unidentified man advising that Joyce and two
other dealers were fired by the Holiday for dumping, a form of cheating by which the club's
money is passed across the gaming table by the dealer to a confederate. The informant also
stated that Joyce and the others had been in collusion with another named man who was
rumored to have operated a cheating school. None of this information was verified. It was,
however, transmitted to the shift manager at Harrah's Tahoe, reduced to memorandum form
and copies thereof distributed to supervisory personnel at the Tahoe club. Precautions were
taken to insure against others reading the memorandum. A photograph of Joyce also was
obtained and distributed to supervisory personnel at Harrah's Tahoe. She was thereafter
considered to be an undesirable person and would be asked to leave should she enter the
Tahoe casino.
[Headnote 1]
1. The trial judge apparently believed that the published information affected an important
interest of Harrah's Club and that its supervisory personnel should know of the defamatory
matter in order to protect that interest. Accordingly, by jury instruction, he ruled that the
information was published on a conditionally privileged occasion.
2
The plaintiff did not
object to that instruction. Had proper objection been made, the trial court would have had the
opportunity to consider the point in depth. That opportunity was precluded by the plaintiff's
silence, and we decline, at this juncture, to consider the point. Wadsworth v. Dille, 85 Nev.
86, 450 P.2d 362 (1969).
____________________

1
Rest. Torts 593: One who publishes false and defamatory matter of another is not liable therefor if (a) it
is published upon a conditionally privileged occasion and (b) the occasion is not abused. See also: Nev. Const.
art. 1, 9; Reynolds v. Arentz, 119 F.Supp. 82 (D. Nev. 1954).

2
Where, as in this case, the evidence is not in conflict, the privileged character of the occasion is an issue of
law for the judge to decide. Once the occasion is ruled by the judge to be privileged, the question whether it was
abused by the defendant is for the jury and the burden on that issue is the plaintiff's. Roscoe v. Schoolitz, 464
P.2d 333 (Ariz. 1970).
[Headnote 2]
2. We must, of course, review the appellate contention that the conditional privilege was
abused by Harrah's Club. The jury apparently found an absence of abuse. The record may be
read to show that dissemination of the defamatory matter to supervisory personnel was in
good faith, without malice to the plaintiff, with belief in its probable truth, and solely for the
purpose of protecting the security of Harrah's and the integrity of its gaming facilities. It was,
therefore, permissible for the jury to return a defense verdict.
Affirmed.
____________
EARL FAIRMAN, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6586
December 29, 1971 491 P.2d 1283
Appeal from judgment of conviction of sale of narcotics. Eighth Judicial District Court,
Clark County; Clarence Sundean, Judge.
The Supreme Court held, inter alia, that where court sustained timely objection when
prosecutor asked defendant Have you ever used any narcotics? and the question was never
answered, no prejudice resulted to defendant.
Affirmed.
Chief Deputy for Appeals, Clark County, for Respondent.
1. Poisons.
Conflicting testimony of officers and of defendant sustained conviction for unlawful sale of narcotics.
NRS 453.030, 453.210, subd. 2.
2. Criminal Law.
Statements of prosecutor did not warrant reversal where, in certain instances, there was no objection to
the remarks, while in others the court sustained objection and admonished jury to consider only their
recollection of the evidence, where the remainder of the comments were fair argument, and
where, in light of the evidence, defendant was not denied fair trial.
of the comments were fair argument, and where, in light of the evidence, defendant was not denied fair
trial.
3. Criminal Law.
In prosecution for unlawful sale of narcotics, where timely objection was sustained when prosecutor
asked defendant Have you ever used any narcotics? and the question was never answered, no prejudice
resulted to defendant.
OPINION
Per Curiam:
A jury found the appellant guilty of the unlawful sale of narcotics in violation of NRS
453.030 and NRS 453.210(2). This appeal seeks reversal of the judgment below on
essentially three grounds. First, the appellant contends that the evidence was insufficient to
support the conviction. Second, he argues that certain statements of the prosecutor, and the
conduct of the prosecutor generally during closing argument, deprived him of a fair and
impartial trial. And finally, it is asserted that the prosecutor improperly asked the appellant
Have you ever used any narcotics? and that prejudicial error resulted from such an inquiry.
The state's case consisted of the testimony of three witnesses, all officers of the Las Vegas
Police Department. From that testimony it was established that the sum of $25.00 was paid by
one of the officers to the appellant for a quantity of a substance which was identified as
heroin. While the substance was not delivered directly into the hands of the officer, the
testimony was that the appellant left it in a balloon next to a telephone pole located near
where the officer's car was parked; the appellant then told the officer where to find the heroin;
and it was retrieved by the officer from that particular location.
The appellant testified in his own defense, that he had not sold any narcotics to the state's
witness on the date when the sale was alleged to have taken place.
The jury resolved the conflicting testimony against the appellant, which it is entitled to do
[Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969)] and found him guilty as charged.
[Headnote 1]
Upon our review of the trial testimony we find that it contains substantial competent
evidence to support the jury verdict, and there is thus no merit to the appellant's first
assignment of error. Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971); Graham v. State, 86
Nev. 290, 467 P.2d 1016 (1970); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970).
[Headnote 2]
We have considered the appellant's second assignment of error and find it to be without
merit also. In certain instances there was no objection by defense counsel to the remarks of
the prosecutor which are now claimed to be offensive; in others the court sustained the
objection made and admonished the jury to consider only their recollection of the evidence
adduced during the trial. The remainder of the prosecutor's comments were fair argument and
unobjectionable. Layton v. State, 87 Nev. 598, 491 P.2d 45 (1971); Tucker v. State, 86 Nev.
354, 469 P.2d 62 (1970). In the light of the evidence presented at the trial we do not find that
the statements of the prosecutor amounted to a denial of a fair and impartial trial.
[Headnote 3]
With respect to the third assignment of error, the record reveals that defense counsel made
a timely objection to the question asked by the prosecutor; the court sustained that objection;
and the question was never answered. Under the circumstances of this case no prejudice
resulted to the appellant. Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962).
The appellant has thus failed to carry his burden of demonstrating reversible error, and
consequently, the judgment of conviction is affirmed.
____________

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