nevada reports 1914 (37 nev.).pdf

7/28/2019 Nevada Reports 1914 (37 Nev.).pdf

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37 Nev. 1, 1 (1914)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

State of Nevada

____________

JANUARY TERM, 1914

____________

37 Nev. 1, 1 (1914) Gander v. Simpson

[No. 1964]

ARNOLD W. GANDER, Respondent, v. JACOB COHN, JOHN W. O'BANION And

LOTTIE A. O'BANION (His Wife), and DANIEL C. SIMPSON, Defendants; DANIELC. SIMPSON, Appellant.

[137 Pac. 514]

1. Adverse PossessionAcquisition of TitleProof.

Proof that plaintiff had fenced and partially improved a tract of land established a sufficient

possession and occupancy to support title by adverse possession under Rev. Laws, sec. 4957, when

supported by proof of the other essentials necessary to the acquisition of such title, and entitled him to

judgment quieting his title in the land against a defendant who established no title thereto.

2. Adverse PossessionDeeds.

Where two claimants of uninclosed and unimproved land assert title by deed but it is impossible to

tell from the evidence which deed conveys the legal title, neither can be said to have established title by

adverse possession, both parties having paid taxes on the land and used the same for grazing purposes.

Appeal from the First Judicial Court, Lyon County; FrankP.Langan, Judge.

Action by Arnold W. Gander against Daniel C. Simpson and others. From judgment for

plaintiff, the defendant named appeals. Revised and remanded, with directions.

JamesR.Judge, for Appellant.


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Mack&Green, for Respondent.


By the Court, Norcross, J.:

Arnold W. Gander, respondent, brought this action against Daniel C. Simpson, appellant,

and a number of others to quiet title to an undivided one-half interest in the

following-described land: The SE 1/4 of section 36, township 11 N, range 23 E, lot 1, and the

SE 1/4 of the SW 1/4 of section 1, and the NE 1/4 of the NW 1/4 of section 12, township 10

N, range 23 E, less a certain tract in the complaint described. All the defendants, other than

the appellant, Simpson, disclaimed ownership in the land. Appellant, Simpson, by his answer,

admitted title in the plaintiff to the extent of an undivided one-fourth, but denied that

defendant had any greater interest therein. Simpson also set up title in himself to an undividedone-half interest in the land described, and prayed judgment in his favor that such interest be

quieted.

Neither the plaintiff nor the defendant traced title in themselves from the government.

Plaintiff offered in evidence a deed from Isador Cohn to Fannie Nudelman, dated June 22,

1901; from J. and Fannie Nudelman, his wife, to John W. O'Banion and Zadoc Pierce, dated

November 12, 1901; from Zadoc Pierce to plaintiff, dated May 18, 1903.

Defendant Simpson offered in evidence deeds from the Occidental Colony Company to J.

Nudelman and Ephram Friedman, dated December 14, 1898; from Ephram Friedman and

wife to A. M. Spiegel, dated October 10, 1899; from A. M. Spiegel to Jacob E. Cohn, dated

September 3, 1902; from Jacob E. Cohn and wife to defendant Simpson, dated August 13,

1906. All the foregoing deeds, whether offered by plaintiff or defendant, describe and purportto convey the property in controversy.

There is nothing in the evidence to show from what source either Isador Cohn, plaintiff's

predecessor in interest, or the Occidental Company, defendant's predecessor in interest,

obtained title, if any such either possessed, to the land in controversy.

As neither plaintiff nor defendant established a clear OHJDOWLWOHWRWKHODQGLQFRQWURYHUV\SODLQWLIIVULJKWWRWKHGLVSXWHGRQHIRXUWKLQWHUHVWPXVWGHSHQGXSRQDGYHUVHSRVVHVVLRQ

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legal title to the land in controversy, plaintiff's right to the disputed one-fourth interest must

depend upon adverse possession for the statutory period of five years.

The court below found, among other facts, the following: That on the said 18th day of

May, 1903, said plaintiff, Arnold W. Gander, entered into the quiet and peaceable possession

of said undivided one-half interest in and to the property set out in his complaint, and

thereafter paid the taxes thereon, and cultivated and raised crops on said lands ever since said


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date; and from the 22d day of June, 1901, said Arnold W. Gander, and his grantors and

predecessors in interest, under claim and color of title, held the quiet and peaceable

possession of said undivided one-half interest in said property. That said possession and

occupation of said lands and water rights was actual, open, notorious, and hostile to

defendants, and each of them, and has been continuous and uninterrupted ever since the said

22d day of June, 1901. That, by reason of said conveyances of said land and water rights tosaid Arnold W. Gander, and by reason of the further fact of his open, notorious, continuous,

uninterrupted, hostile, and adverse possession, under title and claim of title of said lands and

water rights, from and after the 22d day of June, 1901, said plaintiff is entitled to have his

title to an undivided one-half interest in and to said lands and water rights, quieted, settled,

and confirmed to him, as prayed for in his complaint, against said defendants, and each of

them.

The land in controversy is in two noncontiguous tracts, and are separated from each other

by a distance of more than half a mile.

There is evidence showing that 80 acres of the land described is fenced, and, of this 80

acres, some 35 or 40 acres had been and was being cultivated by the plaintiff and his

predecessors in interest for more than five years prior to the institution of the suit. It is notentirely clear whether this 80 acres under fence comprises the SE 1/4 of the SW 1/4 of section

1, and the NE 1/4 of the NW 1/4 ofVHFWLRQWRZQVKLSRULVSDUWRIWKHDFUHWUDFWWRWKHQRUWKEXWIURPWKHHYLGHQFHLWZRXOGDSSHDUPRUHSUREDEOHWKDWLWFRQVWLWXWHVDOO

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section 12, township 10, or is part of the 200-acre tract to the north; but from the evidence it

would appear more probable that it constitutes all of the former tract.It is clear that, as to the 80 acres described as inclosed by fence and partially improved, the

plaintiff has established a superior title, and is entitled to judgment, quieting title thereto.

(Rev. Laws, sec. 4957.)

As to the uninclosed land, it is impossible to say, from the evidence in the record, in whom

lies the superior title. Both parties have a deed to the undivided portion of the land in

controversy; but it is impossible to tell which deed conveys the legal title. Both parties have

paid taxes on the land, and both parties have used the land for grazing purposes. Neither has

established title by adverse possession. If the title to the land could be traced from the original

or from a common source, that would doubtless settle the controversy as to the uninclosed

and unimproved land.The judgment is reversed, and the cause remanded, with directions to the court below to

enter judgment in favor of the plaintiff for the 80 acres of inclosed land, particularly

describing the same, and dismissing the action, without prejudce, as to the other land in

controversy, or to grant a new trial.

Talbot, C. J.: I concur.


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[NoteThis case having been submitted prior to McCarran J., becoming a member of the

court, he did not participate in the decision.]

____________

37 Nev. 5, 5 (1914) Wong Kee v. Lillis

[No. 1998]

WONG KEE, Appellant, v. H. M. LILLIS, as Justice

of the Peace of Las Vegas Township,

Respondent.

[138 Pac. 900]

1. Appeal and ErrorDecisions AppealableJurisdiction.The supreme court has jurisdiction of an appeal from an order of the district court dismissing a writ of

certiorari to review a judgment of a justice of the peace attacked on jurisdictional grounds, regardless of

the amount in controversy.

2. Justices of the PeaceCertiorariJurisdictionPresumptions.On certiorari to review a judgment of the justice court because of a defect in the summons, the

judgment should be vacated where the docket of the justice did not affirmatively show a sufficient service

of summons.

3. IdemJurisdictionSummons.Facts essential to establish the jurisdiction of a justice of the peace must affirmatively appear. A

recital in a justice's docket that summons was duly served or that the attorney came into court and

made return on summons as by law provided, is insufficient.4. IdemService of ProcessSufficiency.

Where the summons issued out of justice court and served upon defendant was not signed by the

justice, it is voidable, and may be set aside upon appropriate motion.

Appeal from the Fourth Judicial District Court, Clark County;E.J.L.Taber, Judge.

Application by Wong Kee for writ ofcertiorari against H. M. Lillis, as Justice of the

Peace. From an order denying the writ, the petitioner appeals. Reversed and remanded, with

directions.

RichardBusteed, for Appellant.

Stevens&VanPelt, for Respondent.

By the Court, McCarran, J.:

This is an appeal from an order of the district court of the Fourth judicial district denying

petitioner's application for a writ ofcertiorari to review a judgment entered by respondent as

justice of the peace of Las Vegas township against petitioner and in favor of Antonio

Mendez, plaintiff in the justice court, in the case ofMendez v.:RQJ.HH


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WongKee. In the court below petitioner prayed that a writ ofcertiorari be issued and directed

to the justice of the peace commanding him to transfer to the clerk of the district court atranscript of the proceedings had in that court whereby judgment was rendered against

petitioner, and in this respect it is the contention of petitioner that the justice court had no

jurisdiction to proceed with the cause or render judgment in the case for the reason that there

was a defect in the service of summons. Petitioner's Exhibit A is a copy of the summons

served upon petitioner as defendant in the justice court, and it is admitted that the copy of the

summons as set forth in the transcript is true and correct. In that copy no signature of the

justice of the peace appears as having issued the summons. In the transcript of the docket of

the justice court the following entry appears: March 20th, Attorney Van Pelt came into court

and made a return on summons as by law provided.

[1] A motion to dismiss this appeal has been filed by respondent, and in suport of hiscontention we are referred to the case ofBienenfeldv. FresnoMillingCo., 82 Cal. 425, 22

Pac. 1113, wherein the Supreme Court of California held that an appeal from a judgment and

order of the superior court, dismissing a writ ofcertiorari and affirming a judgment of the

district court, could not be reviewed on appeal for the reason that appellate jurisdiction of the

supreme court did not extend to such a case. But in this respect it must be observed that the

Supreme Court of California, in the case ofHeinlen v. Phillips, 88 Cal. 557, 26 Pac. 366, in a

similar proceeding expressly overruled its decisions in the Bienenfeld case, and said: A

motion is made to dismiss the appeal upon the ground that, since the amount involved is less

than $300, the court is without jurisdiction. And the case ofBienenfeldv. FresnoMillingCo.,

82 Cal. 425, 22 Pac. 1113, decided by department 2 of this court, sustains the position. But

that case is in conflict with the prior decisions, which in the pressure of business wereoverlooked, and we thinkLWLVEHVWWRUHWXUQWRWKHVHWWOHGUXOH


it is best to return to the settled rule. The point was decided in Winterv. Fitzpatrick, 35 Cal.

269, which overruled a prior case. * * * This case was approved and followed in Morley v.

Elkins, 37 Cal. 456, and Palache v.Hunt, 64 Cal. 474, 2 Pac. 245. This would seem to be

sufficient to establish the rule; and, as the department did not have before it the case

mentioned, we think thatBienenfeldv. FresnoMillingCo., 82 Cal. 425, 22 Pac. 1113, mustbe overruled. The motion to dismiss is therefore denied.

Counsel for respondent refer us to the case ofAndrews v. Cook, 28 Nev. 265, 81 Pac. 303,

and also to the case ofTreadway v. Wright, 4 Nev. 119, and FloralSpringsWaterCo. v.

Rives, 14 Nev. 435. In the case ofFloyd&Guthrie v. SixthJudicialDistrictCourt, 36 Nev.

349, 135 Pac. 922, this court expressly overruled the doctrine as annunciated in the case of

Treadway v. Wright, 4 Nev. 119, andAndrews v. Cook, 28 Nev. 265, 81 Pac. 303.


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It is our judgment that the doctrine annunciated in the case ofHeinlen v. Phillips,supra,

establishes the better rule in a case of this kind, and this court will entertain an appeal from an

order and judgment of the lower court in certiorari from the justice court. The motion to

dismiss is therefore denied.

[2-3] On the merits of the case it must be observed that our civil practice act, applicable to

the manner of commencing actions in this justice court, prescribes that an action in the justicecourt is commenced by filing a complaint and the issuance of summons thereon. The

summons must be directed to the defendant and signed by the justice. (Sections 5722 and

5727, Revised Laws of Nevada.)

The record discloses that the only matter relative to the service of summons upon the

defendant was the docket entry made on March 20, as follows: Attorney Van Pelt came into

court and made return on summons as by law provided.

In the case ofMcDonaldv. Prescott,etal., 2 Nev. 109, 90 Am. Dec. 517, this court

established a rule directly DSSOLFDEOHWRWKHFDVHXQGHUFRQVLGHUDWLRQDQGKHOGWKDWQRWKLQJLVSUHVXPHGLQIDYRURIWKHMXULVGLFWLRQRIFRXUWVRIOLPLWHGMXULVGLFWLRQ


applicable to the case under consideration and held that nothing is presumed in favor of the

jurisdiction of courts of limited jurisdiction. The recital that the summons was duly served,

without stating the facts as to how, when, or where it was served, is not sufficient. It is merely

the opinion of the justice that service was sufficient. Jurisdiction cannot be presumed in favor

of the justice of the peace under such circumstances. In this respect it is a rule established

almost to a degree of uniformity that nothing is presumed in favor of the jurisdiction of the

justice of the peace, and it must be affirmatively shown.

In the entry of the justice court as certified to this court, there is a total absence of anyentry as to service of summons. The bald allegation, Attorney Van Pelt came into court and

made return on summons as by law provided, conveys none of the prerequisites to give the

court jurisdiction. There is an absence of the essential requisites as to how, when, where, and

by whom service of summons was had upon the defendant. As stated by this court in the case

ofMcDonaldv. Prescott,supra, nothing is presumed in favor of the jurisdiction of the

district court; its jurisdiction and all facts essential to establish jurisdiction must affirmatively

appear.

[4] As appears from the record in this case, the copy of the summons left with the

defendant was blank as to the signature of the justice of the peace. Service made in this

manner is voidable, and when motion is made, at the proper time, to quash the service, theparty making such motion should prevail. The mere entry of the justice of the peace that

return on summons as by law provided will not relieve such a defect. (Stewartv.Bodley, 46

Kan. 397, 26 Pac. 719, 26 Am. St. Rep. 105;Moore v.Hansen, 75 Mich. 564, 42 N. W. 981;

McDonaldv. Prescott, 2 Nev. 109, 90 Am. Dec. 517;Roy v. Whitford, 9 Nev. 370.)

It follows that the order of the district court, dismissing the writ, will be vacated, and the

district court is instructed WRHQWHUDQRUGHUGLUHFWLQJWKHDQQXOPHQWRIWKHMXGJPHQWRIWKHMXVWLFHFRXUW


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to enter an order directing the annulment of the judgment of the justice court.

It is so ordered.

____________

37 Nev. 9, 9 (1914) Lamb v. Lucky Boy Mining Co.

[No. 1976]

JOHN B. LAMB, Appellant, v. GOLDFIELD LUCKY BOY MINING COMPANY (aCorporation) and THE GOLDFIELD ARISTOCK MINING COMPANY (a

Corporation), Respondents.

[138 Pac. 902]

1. Appeal and ErrorAssignments of Error.In the absence of an assignment of error to the sustaining of a demurrer to the cause of action, the

ruling will not be reviewed.

2. Mines and MineralsLaborer's Liens.Persons performing labor in the development of mining property or to facilitate the extracting of ore

have a lien upon the interest of the lessee and the owner.3. Mines and MineralsLaborers' LiensAllegations of ComplaintKnowledge of Lessor.

Where the complaint, in an action to enforce a lien as against the owner upon mining property for

services performed for the lessee, alleged that the lease was executed by the owner for the purpose of

developing and extracting ore from the property, it must be presumed that the owner had knowledge that

laborers were being employed and materials furnished in developing the property under the lease.

4. Mechanics' LiensLaborers' Liens.The general theory upon which all labor liens are based is that they are remedial in their nature and

intended to assist the laborer to obtain a just price for his services.

5. Mechanics' LiensNature.Mechanics' liens are purely statutory.

6. Mines and MineralsConstruction of Statutes.While there must be a substantial compliance with the essential requisites of the statute in order toclaim a laborer's lien, such pleadings and notices as the statute requires should be liberally construed to

promote the object to be effected, and the statute in that respect should not be construed so technically as

to destroy claimant's right to a lien.



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7. Mines and MineralsLaborers' LiensEnforcement Against Lessor.Rev. Laws, sec. 2213, provides that all laborers and others who work upon any mine in an amount of $5

or more, or furnish material, whether done or furnished at the instance of the owner or his agent, shall have

a lien upon the mine for the value of the work or materials and that every contractor, subcontractor, or

other person in charge of any mining claim shall be held to be the agent of the owner for the purposes of

the chapter.Held, that one who furnished labor in developing a mine at the instance of a lessee was entitledto a lien on the property for his services, whether the lessee was a contractor working on the property in the

interest of the owner, or whether, under the lease, the lessee and owner were both to share in the benefits of

the lessee's work.

Appeal from the Seventh Judicial District Court, Esmeralda County; TheronStevens,

Judge.

Action by John B. Lamb against the Goldfield Lucky Boy Mining Company and another.

From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

James Donovan, for Appellant.

Thompson, Morehouse & Thompson, for Respondents.


This is an action to enforce a mechanic's lien. Two causes of action were asserted by

appellant, plaintiff in the court below. The Goldfield Aristock Mining and Leasing Company

was the lessee of those certain lode mining claims known as Lucky Boy No. 1 and Lucky Boy

No. 2. The Goldfield Lucky Boy Mining Company was the owner of the claims and the

lessor. The second cause of action relied upon by appellant is based upon services performed

upon the property and a claim of lien filed pursuant thereto by George B. Crowell, the latter's

claim of lien having been, for a valuable consideration, assigned to appellant, by reason ofwhich cause of action judgment is prayed for against respondents.

By the complaint of appellant it is averred that the lease executed by the Goldfield Lucky

Boy Mining Company to the Goldfield Aristock Mining and Leasing Company was for the

purpose of developing and improving and extracting ore from the Lucky Boy No. 1 and/XFN\%R\1R


Lucky Boy No. 2 lode mining claims, and it is further alleged that the lessor, the GoldfieldLucky Boy Mining Company, had knowledge that the materials furnished by the lien claimant

were used in the development of the claims, and that the lessor had full knowledge that the

lien claimant was working on the property. It is further alleged that no notices were posted by

the lessor exempting the mining claims leased from liability for materials furnished, or for

labor performed upon or in the development of that property.

On the 20th day of August, 1908, as appears from the record, the appellant filed in the

office of the county recorder of Esmeralda County his claim of lien, duly verified by him, and


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had the same recorded.

[1] A demurrer was sustained to the first cause of action, and, there being no assignment of

error as to the order of the court sustaining that demurrer, it is not involved.

Appellant, having proceeded to trial on the second cause of action, offered in evidence

George B. Crowell's notice of mechanic's lien, as filed in the office of the county recorder

August 20, 1908. An objection was interposed by the defendant upon the ground that theoffer of appellant was incompetent, irrelevant, and immaterial, and inadmissible for any

purpose in the case. The trial court, without sustaining the objection of defendants on the

ground stated, held that the lien notice was not admissible for the reason that, in order to

make the owner of the property responsible personally for that indebtedness, the work must

have been done for that owner himself.

The lien law of the State of Nevada (section 2213, Rev. Laws) provides that all miners,

laborers, and others who work or labor in the amount of $5 or more in or upon any mine, or

upon any shaft, tunnel, adit, or other excavation, designed or used for the purpose of

prospecting, draining, or working any such mine, and all persons who shall furnish any timber

or other material, to the value of $5 or more, to be used in or about any such mine, whetherGRQHRUIXUQLVKHGDWWKHLQVWDQFHRIWKHRZQHURIVXFKPLQHRUKLVDJHQWVKDOOKDYHDQGPD\HDFKUHVSHFWLYHO\FODLPDQGKROGDOLHQXSRQVXFKPLQHIRUWKHDPRXQWDQGYDOXHRI

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done or furnished at the instance of the owner of such mine, or his agent, shall have and may

each respectively claim and hold a lien upon such mine for the amount and value of the work

or labor so performed or material furnished.

In the notice of mechanic's lien, filed by George B. Crowell and offered as evidence in thecourt below, the lien claimant asserts the Goldfield Aristock Mining and Leasing Company to

be the agent of the Goldfield Lucky Boy Mining Company. It also asserts that the Goldfield

Lucky Boy Mining Company is the reputed owner of the Lucky Boy No. 1 and Lucky Boy

No. 2. The lien notice is sufficient in other respects and substantially conforms to the

requirements of the statute.

In appellant's second cause of action it is alleged that the Goldfield Aristock Mining

Company was the lessee of the Goldfield Lucky Boy Mining Company, and that the lease

given by the latter to the former was for the purpose of developing and improving and

extracting ore from the Lucky Boy No. 1 and Lucky Boy No. 2. Nothing is alleged in either

the lien notice filed by Crowell, or in the complaint of appellant, as to the terms of the lease,

or as to whether or not the lessor is to receive any part or percentage of the proceeds or

mineral productions that might be derived from the mining operations.

The trial court offered to enter judgment against the respondent Goldfield Aristock Mining

and Leasing Company as lessee. This the appellant refused to accept, stating that the company

was insolvent, and that the judgment against it was of no value.

There is practically but one question before this court to determine in this case, namely: Is

the mining property of a lessor to be held liable for materials furnished and labor performed


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on the property at the instance or request of the lessee?

It is our judgment that the trial court took an erroneous view of the matter presented. It

must be observed at the outset that from the pleadings and record in this case it is disclosed

that the respondent, the Goldfield Lucky %R\0LQLQJ&RPSDQ\DGPLWVWKHVHUYLFHVSHUIRUPHGDQGWKHPDWHULDOVIXUQLVKHGDVDOOHJHGLQDSSHOODQWVVHFRQGFDXVHRIDFWLRQEXWLQWKLVUHVSHFWWKH\DOOHJHWKDWWKHPDWHULDOVZHUHIXUQLVKHGDQGVHUYLFHVZHUHSHUIRUPHGDWWKHLQVWDQFHDQGUHTXHVWRIWKH*ROGILHOG$ULVWRFN0LQLQJDQG/HDVLQJ&RPSDQ\WKHOHVVHHDQGWKDWDVDOHVVRUWKH*ROGILHOG/XFN\%R\0LQLQJ&RPSDQ\ZDVQRWUHVSRQVLEOHIRUWKHGHEWVLQFXUUHGE\LWVOHVVHHLQWKHPLQLQJRSHUDWLRQVFDUULHGRQ

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Boy Mining Company, admits the services performed and the materials furnished, as alleged

in appellant's second cause of action, but, in this respect, they allege that the materials were

furnished and services were performed at the instance and request of the Goldfield AristockMining and Leasing Company, the lessee, and that, as a lessor, the Goldfield Lucky Boy

Mining Company was not responsible for the debts incurred by its lessee in the mining

operations carried on under the lease. They further contend that the mining claims of the

lessor cannot be bound by the lien.

In dealing with this subject, the courts of the land have not been at all harmonious. The

Supreme Court of Colorado, in dealing with this subject under a statute exempting the

leaseholder in certain instances, has held that a mechanic's lien will not attach to the interest

of the owner of the mine for work done or material furnished in working or developing a

mine, where the work is done or material furnished at the instance of, or under a contract

with, one whose only interest is that of lessee. (Wilkins v.Abell, 26 Colo. 462, 58 Pac. 612.)

The Supreme Court of Colorado has on several occasions referred to the case ofWilkins v.Abell, supra, and on each occasion has reaffirmed the rule as there laid down. In the case of

LittleValeriaGoldM.&N.Company v.Ingersoll, 14 Colo. App. 240, 59 Pac. 970, that

court, after referring to their decision in the case ofWilkins v.Abell, said: There must be

some showing to the point that the owner of the realty was in some manner obligated, either

because he was a privy and party to the contract of employment, or because, in some other

way than by the lease, he authorized the lessee to contract, or because the agreement, by its

terms, gave the lessee authority.

In the case ofGriffin v.Hurley, 7 Ariz. 399, 65 Pac. 147, that court laid down the rule that

the interest of the lessee is alone liable.

In the case ofGouldv. Wise, 18 Nev. 257, 3 Pac. 30, this court, speaking through Mr.Justice Belknap, held, in substance, that the interest of a lessor may be VXEMHFWHGWROLHQFODLPVQRWZLWKVWDQGLQJWKHODERUDQGPDWHULDOZHUHQRWIXUQLVKHGDWKLVLQVWDQFHLINQRZLQJWKDWDOWHUDWLRQVRUUHSDLUVZHUHEHLQJPDGHRUZHUHFRQWHPSODWHGKHIDLOHGWR

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11/368

subjected to lien claims, notwithstanding the labor and material were not furnished at his

instance, if, knowing that alterations or repairs were being made or were contemplated, he

failed to give notice that he would not be responsible therefor.

In the case ofRosina v. Trowbridge, 20 Nev. 105, 17 Pac. 751, this court approvingly

referred to the case ofGouldv. Wise,supra, and held, in substance, that the interests of the

owner or owners of mining claims were chargeable with a lien for labor performed on a

claim, although such labor was performed at the instance and request of one in the position of

lessee. In that case the court held that the lease and contract entered into between the owners

and the lessee constituted notice to the lessor of the work and improvements being done on

the mine, and that, to have avoided liability, it was the duty of the lessor to comply with the

statute and post notice to the effect that they would not be responsible for material furnished

or labor performed.

[2] The general underlying principle in cases of this kind is that those performing labor in

the development of mining property, or rendering services to facilitate the extracting of ore,

discovered or undiscovered, have a lien for such labor upon the interest of the lessee and the

owner. Work performed in mining property, whether it be in the extracting of preciousmetals, or in increasing the facilities for their extraction, or in sinking, driving, or tunneling,

with the view of discovering ore, all of such work alike inures to the development of the

property and to the benefit of the lessor.

[3] It is alleged by the appellant in this case, and his allegation in this respect is not

controverted by the answer of respondent, that the lease under and by reason of which the

Goldfield Aristock Mining and Leasing Company operated the mining property was given to

that company by the Goldfield Lucky Boy Mining Company, the owner of the property, for

the purpose of developing and improving and extracting ore from the property. From this it

must be presumed, HYHQWKRXJKLWZHUHQRWDGPLWWHGE\WKHSOHDGLQJVWKDWWKHUHVSRQGHQWWKH*ROGILHOG/XFN\%R\0LQLQJ&RPSDQ\KDGQRWLFHDQGNQRZOHGJHWKDWVXFKZRUNZDVJRLQJRQDQGWKDWODERUHUVZHUHEHLQJHPSOR\HGDQGPDWHULDOVZHUHEHLQJIXUQLVKHGLQIXUWKHUDQFHRIWKHGHYHORSPHQWDQGLPSURYHPHQWRIWKHSURSHUW\XQGHUWKH

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even though it were not admitted by the pleadings, that the respondent, the Goldfield Lucky

Boy Mining Company, had notice and knowledge that such work was going on and that

laborers were being employed and materials were being furnished in furtherance of the

development and improvement of the property under the terms of the lease.The Supreme Court of Missouri, in dealing with the question of estates affected by

mechanics' liens where the leasehold was a building, held that the lessor who authorized the

lessee to make improvements which effected the substantial betterment of the reversion at the

expiration of the term impliedly constitutes the lessee his agent for the purpose of subjecting

the lease held to liens for material furnished or labor performed. (Dougherty-MossLumber

Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405.)

In the case ofHiggins v. CarlottaGoldMiningCompany, 148 Cal. 700, 84 Pac. 758, 113


12/368

Am. St. Rep. 344, the Supreme Court of California, in construing the provisions of a statute

similar to ours, said: The purpose of the statute obviously is to allow a lien for mining work

done upon a mine against the estate or interest therein of the person who is to be benefited

thereby, whether done directly for him and at his request, or indirectly for his benefit, at the

request of some other person operating in pursuance of some express or implied contract with

him. In that case the court held that, where the lessor or owner of the property posted nonotice disclaiming liability for labor performed or material furnished, it followed as a

consequence that his estate in the property stands charged with a lien for the value of such

labor.

[4] The general theory upon which all labor liens, or mechanics' liens, are based is that

they are remedial in their natureintended to aid the laborer who gives his services, or the

materialman or merchant who furnishes his goods or wares, to secure the contract price or at

least a just price for the services or material furnished. This is based on the principle that the

material used or the ODERUSHUIRUPHGXSRQDVSHFLILFSURSHUW\KDVHQKDQFHGLWVYDOXHDQGWKDWLWLVULJKWWKDWWKHSHUVRQIXUQLVKLQJPDWHULDOPD\IROORZKLVPDWHULDOLQWRWKHVWUXFWXUHRIZKLFKLWEHFDPHDSDUWRUWKDWWKHODERUHUVKRXOGSXUVXHWKHUHVXOWRIKLVWRLO

LQRUGHUWRVHFXUHKLVMXVWFRPSHQVDWLRQEHFDXVHWKHVWUXFWXUHLVWKHUHVXOWRIWKHPDWHULDOIXUQLVKHGRUWKHODERUGRQHDQGLWLVMXVWWKDWWKHRZQHUWKHUHRIVKRXOGQRWDFTXLUHWKHEHQHILWVRIWKHODERURUWKHLPSURYHPHQWVDFFUXLQJIURPWKHPDWHULDOZLWKRXW

FRPSHQVDWLQJWKHSHUVRQIXUQLVKLQJVXFKODERURUPDWHULDO


labor performed upon a specific property has enhanced its value, and that it is right that the

person furnishing material may follow his material into the structure of which it became a

part, or that the laborer should pursue the result of his toil in order to secure his just

compensation because the structure is the result of the material furnished, or the labor done,

and it is just that the owner thereof should not acquire the benefits of the labor or the

improvements accruing from the material without compensating the person furnishing such

labor or material.

[5] Mechanics' liens are purely creatures of statute, and the right to enforce such liens

emanated entirely from statutory provisions. The property that may be subject to lien, the

class of laborer that may have the benefit of lien, the time within which and the manner in

which a lien may be enforced are all matters which rely entirely upon statutory provisions.

The several statutory enactments in the states in which the right of lien exists are the basis

for the many decisions rendered by courts of last resort in dealing with this subject, and hence

we find a lack of unity in the expressions of the courts upon the various phases that havearisen. The right of lien was unknown at common law, and had no place in equity

jurisprudence. The principle itself, although having sanction in the civil law, had its statutory

initiative in the spirit of justice to give to every person of ordinary intelligence the means

whereby he might be secured for services rendered or materials furnished. The general

principle upon which the statute laws relative to mechanics' liens is grounded being broad, it

follows that it was never intended that provisions of the law should furnish a snare and

involve claimants in the intricacies of pleading.


13/368

[6] Hence, while there must be a substantial compliance with the essential requisites of the

statute, such pleadings and notices as the law requires should be literally construed in order

that justice might be promoted and the desired object might be effected.


It has been held that, while courts always require a substantial compliance with the statute

in regard to the statement in the notice of lien and the proceedings thereunder, yet they will

not give the statute such a narrow or technical construction as to fritter away, impede, or

destroy the right of the lien claimant. (Castagnetto v. CopperTownM.&L.Co., 146 Cal.

329, 80 Pac. 74.)

[7] By the provisions of our statute the right of lien was granted to persons furnishing

timber or other materials to be used in or about any mine and also to laborers and others who

work or labor in or upon any mine, shaft, tunnel, adit, or other excavation designed for the

purpose of prospecting, draining, or working any such mine. This right of lien is provided forwhether the work is done or the material furnished at the instance of the owner of the property

in person, or of his agent. By the provisions of the statute, it is expressly stated that every

contractor, subcontractor, architect, builder, or other person in charge or control of any

mining claim or any part thereof shall be held to be the agent of the owner for the purpose of

the application of the law.

If the lease in question, given by the Goldfield Lucky Boy Mining Company to the

Goldfield Aristock Mining Company, was given with the sole object and view of prospecting

the property, or of improving the property in the way of determining the existence of ore

bodies thereon, or for the extraction of ores without any provision for the lessee to acquire

benefit from the ore extracted, then the lessee was a contractor, working on the property in

the interest of the lessor, and must be held to be the agent of the owner, under the provisionsof section 1 of our lien law. On the other hand, if, by provision of the lease under which the

Goldfield Aristock Mining Company operated the property, the lessor was to derive a

stipulated benefit from the ores extracted by the lessee or some share in the net profits derived

from the property, then the lease was a contract between the parties, and by its covenants the

lessee undertook to do the mining work, and both the lessee and the lessor were WRVKDUHLQWKHSURFHHGVDQGWKHEHQHILWRIWKHZRUN


to share in the proceeds and the benefit of the work. Hence the lessor was not only the

indirect, but the direct, beneficiary of the labor performed in the property and all the material

furnished therein, and it is obviously the intent of the statute and manifestly its spirit to allow

a lien for mining work done upon a mine against the estate or interest therein of the person

who is to be benefited thereby. (Higgins v. CarlottaMfg.Co., 148 Cal. 700, 84 Pac. 758, 113

Am. St. Rep. 344.)


14/368

The rule as established by this court in the case ofGouldv. Wise,supra, andRosina v.

Trowbridge,supra, has never been questioned or modified by this court since its

establishment, and we see no occasion at this time for the establishment of a different rule,

notwithstanding the fact that many courts have held to the contrary. The statute makes

provisions as to how a lessor may relieve himself and his estate from liability as against lien

claimants, and, where one fails to throw about himself the protection which the statuteaffords, he cannot in justice remain silent and receive the benefit of labor and services

performed on his estate and then avoid liability for a just compensation therefor.

One other point is raised by appellant in this case, namely, that the court erred in

dismissing the action. It is manifest, however, that had the court admitted in evidence the

notice of lien offered by appellant it would not, as a matter of course, have dismissed the

action; hence it is unnecessary for us to dwell upon this phase.

The order sustaining respondents' objection to the admissibility of the lien notice and the

judgment of dismissal are reversed, and the case remanded.

____________

37 Nev. 19, 19 (1914) State v. Lamb

[No. 2098]

STATE OF NEVADA, Ex Rel. M. SUGARMAN, Petitioner, v. S. G. LAMB, as Sheriff of

Humboldt County, Respondent.

[138 Pac. 907]

1. ReplevinReturn of Property to Defendant.Rev. Laws, sec. 5128, relating to actions to recover possession of personal property, declares that the

defendant may, within two days after the service of a copy of the affidavit and the undertaking, give

notice to the sheriff, who has seized the property, that he excepts to the sureties, and, if he fails to do so,

he shall be deemed to have waived all objection to the sureties. Section 5129 declares that, at any time

before the delivery of the property to the plaintiff, the defendant, if he does not except to the sureties,

may claim the property upon giving to the sheriff a written undertaking executed by two or more sureties,

and section 5130 declares that the defendant's sureties, upon notice to the plaintiff of not less than two or

more than five days, shall justify before the clerk or judge in the same manner as upon bail on arrest, and

upon justification the sheriff shall deliver the property to the defendant.Held, that justification by

defendant's sureties upon notice to plaintiff was a condition precedent to the delivery of the property tohim; the plaintiff not being required to justify his sureties unless called upon by the defendant.

2. CourtsMandamusOriginal Writ by Supreme Court.In an action for the possession of personal property, where the sheriff redelivered it to defendant,

although defendant's sureties had not justified in accordance with the statute, and the trial court refused to

issue a writ ofmandamus compelling the sheriff to deliver the property to the plaintiff, plaintiff is entitled

to petition the supreme court for the issuance of an original wit of mandamus, having exhausted his

remedies below.

3. MandamusPossession of PropertyDuty of Sheriff.


15/368

In an action for the possession of personal property, the sheriff, after seizing it, redelivered it to the

defendant, although defendant's sureties on his undertaking had not justified themselves before the clerk

or the court as required by statute. The property still remained within the county.Heldthat, as Rev. Laws,

sec. 5127, requires the sheriff, upon receipt of the affidavit, notice, and written undertaking executed by

the plaintiff, to take the property and retain it in his custody until delivery to plaintiff or redelivery to the

defendant after justification of the latter's sureties, the sheriff will by an appropriate writ ofmandamus be

compelled to retake the property and deliver it to plaintiff; the defendant having waived exceptions toplaintiff's sureties and not having established his own right to a return.

37 Nev. 19, 20 (1914) State v. Lamb

4. ReplevinFees and Expenses of Sheriff.Under Rev. Laws, sec. 5133, the sheriff may retain possession of property taken in claim and delivery

until his fees and expenses are paid.

Original proceeding by the State, on the relation of M. Sugarman, for a writ ofmandamus

against S. G. Lamb, Sheriff of Humboldt County. Writ issued.

Salter&Robins and Geo.B.Thatcher, for Petitioner.

C.A.Gillette and ThomasA.Brandon, for Respondent.


This is an original proceeding in mandamus. The petitioner was the plaintiff in an action

for claim and delivery in the district court of Humboldt County. After the regular

commencement of his action, by the filing of complaint and the issuance of summons,

petitioner, in compliance with chapter 20 of the civil practice act of this state, claimed the

delivery of certain personal property enumerated in his petition. In accordance with his claim

he made an affidavit setting forth the essential requisites under the civil practice act, and

thereby required the respondent, as sheriff of Humboldt County, that being the county in

which the personal property was situated, to take the personal property from the defendant.

It is admitted by the pleadings in this case that all of the steps necessary to justify the

sheriff in taking possession of the property from the defendant were accomplished by the

petitioner, as plaintiff in the case below. From the petition and answer in this proceeding it

appears that the respondent, as sheriff, nominally took possession of the personal property.

Petitioner alleges that more than five days elapsed and no notice was served on him, as

plaintiff in the action in the lower court, by respondent, or by any other person, that defendant

required the return of the personal property, or that the defendant had given to the respondentDZULWWHQXQGHUWDNLQJDVSUHVFULEHGE\VHFWLRQRIWKHFLYLOSUDFWLFHDFWDQGQRQRWLFHKDGEHHQVHUYHGRQSHWLWLRQHUWKDWGHIHQGDQWVVXUHWLHVZRXOGMXVWLI\EHIRUHWKHMXGJHRIWKHGLVWULFWFRXUWLQZKLFKFRXUWWKHDFWLRQZDVSHQGLQJRUEHIRUHWKHFOHUNRIWKDWFRXUW

DVSUHVFULEHGE\VHFWLRQRIWKHFLYLOSUDFWLFHDFW5HY/DZVHF

37 Nev. 19, 21 (1914) State v. Lamb


16/368

a written undertaking as prescribed by section 187 of the civil practice act, and no notice had

been served on petitioner that defendant's sureties would justify before the judge of the

district court, in which court the action was pending, or before the clerk of that court, as

prescribed by section 188 of the civil practice act (Rev. Law, sec. 5130). After the expiration

of five days from the date of the taking of the property by the respondent, petitioner made

demand on the respondent for the delivery of the property to him under section 187 of the

civil practice act.

In the answer filed by respondent it is claimed that the defendant, in the action in the lower

court, made demand and delivered an undertaking to respondent within five days from the

date ofthe taking of the property by respondent, and that thereafter the sureties on the

undertaking qualified before a notary public in and for the county of Humboldt. Respondent

further states that the undertaking was approved by him in his official capacity as sheriff, and

that after the delivery of the undertaking to respondent he returned the property to defendant.

Having surrendered possession of the property, respondent alleges that he has not now legal

control thereof.

[1] In our practice in matters of claim and delivery, section 5128, Revised Laws,prescribes: The defendant may within two days after the service of a copy of the affidavit

and the undertaking, give notice to the sheriff that he excepts to the sufficiency of the

sureties. If he fails to do so, he shall be deemed to have waived all objection to them. When

the defendant excepts, the sureties shall justify on notice in like manner as upon bail on

arrest; and the sheriff shall be responsible for the sufficiency of the sureties until the objection

to them is either waived, as above provided, or until they justify. If the defendant except to

the sureties he cannot reclaim the property, as provided in the next section.

As appears from the record in this case, the defendant in the lower court did not except to

the sufficiency ofSODLQWLIIVVXUHWLHVJLYHQLQWKHODWWHUVXQGHUWDNLQJLQFODLPDQGGHOLYHU\KHQFHLWIROORZVWKDWWKHGHIHQGDQWLVGHHPHGWRKDYHZDLYHGDOOREMHFWLRQVWKDWKHPLJKW

KDYHWRWKHVXUHWLHVRIIHUHGRQWKHXQGHUWDNLQJRISODLQWLII

37 Nev. 19, 22 (1914) State v. Lamb

plaintiff's sureties given in the latter's undertaking in claim and delivery; hence it follows that

the defendant is deemed to have waived all objections that he might have to the sureties

offered on the undertaking of plaintiff. The defendant having failed or refused to avail

himself of the right of excepting to the plaintiff's sureties, he had the right to demand of the

sheriff the return of the property taken as soon as he had complied with the provisions of

section 5129 and section 5130, Revised Laws.

Section 5129 (section 187 of the civil practice act) prescribes: At any time before the

delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties

of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking,

executed by two or more sufficient sureties, to the effect that they are bound in double the

value of the property, in gold coin of the United States, as stated in the affidavit of the

plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for


17/368

payment to him of such sum, in gold coin of the United States, as may for any cause be

recovered against the defendant. If a return of the property be not so required within five days

after the taking and serving of notice to the defendant, it shall be delivered to the plaintiff,

except as provided in section 192.

Section 5130, being section 188 of the civil practice act, prescribes: The defendant's

sureties, upon notice to the plaintiff of not less than two or more than five days, shall justifybefore the judge or the clerk in the same manner as upon bail on arrest: and upon such

justification, the sheriff shall deliver the property to the defendant. The sheriff shall be

responsible for the defendant's sureties until they justify, or until the justification is completed

or expressly waived, and may retain the property until that time. If they or others in their

place, fail to justify at the time and place appointed, he shall deliver the property to the

plaintiff.

Under the provision of the statute quoted above, where WKHGHIHQGDQWUHTXLUHVWKHUHWXUQRIWKHSURSHUW\DQGSXUVXDQWWRKLVUHTXLUHPHQWJLYHVDZULWWHQXQGHUWDNLQJWRWKHVKHULIIWKHSODLQWLIILVQRWUHTXLUHGWRH[FHSWWRWKHVXIILFLHQF\RIWKHVXUHWLHVRQWKH

GHIHQGDQWVXQGHUWDNLQJ

37 Nev. 19, 23 (1914) State v. Lamb

the defendant requires the return of the property and, pursuant to his requirement, gives a

written undertaking to the sheriff, the plaintiff is not required to except to the sufficiency of

the sureties on the defendant's undertaking. On the contrary, the defendant must take the

initiative and after giving notice to plaintiff, of not less than two days nor more than five

days, proceed to have his sureties justify, either before the judge of the court in which the

action was instituted, or before the clerk of that court, in the same manner as upon bail on

arrest. These several acts are prerequisites to the return of the property to the defendant by thesheriff. After the sheriff has taken possession of the personal property in an action of this

character, he is required by the statute to retain possession of the property until the time has

expired in which the defendant may take advantage of the provision of the statute be demand

for the return of the property and by filing his undertaking, giving notice to the plaintiff and

justifying his sureties. But if a return of the property be not required by the defendant, within

the time prescribed, or, if having made demand, the defendant fails to notify the plaintiff and

fails to justify his sureties on the undertaking offered, the sheriff must, under the provisions

of the statute, deliver the property to the plaintiff, unless the property taken be claimed by a

third party, in which instance section 192 of the civil practice act (Rev. Laws, sec. 5134)

prescribes the procedure to be followed.

After demand is made by the defendant for the return of the property and an undertaking is

filed by him, should the plaintiff expressly waive justification of the sureties on the

undertaking, such waiver, when filed and presented to the sheriff, would have the same force

and effect as though the sureties had justified, and the sheriff would be authorized to restore

the property to the defendant.

The Supreme Court of Montana, in a proceeding analogous to the one at bar, and under

statutory provisions the same as ours, said: If we are to arrive at WKHOHJLVODWLYHLQWHQWIURP


18/368

WKHODQJXDJHHPSOR\HGE\WKHOHJLVODWXUHLWEHFRPHVDSSDUHQWDWRQFHWKDWWKHGXW\LVLPSRVHGXSRQWKHGHIHQGDQWZKRVHHNVWRUHFRYHUWKHSRVVHVVLRQRIKLVSURSHUW\LQDFODLPDQGGHOLYHU\DFWLRQWRKDYHWKHVXUHWLHVRQKLVUHGHOLYHU\ERQGMXVWLI\DVDFRQGLWLRQ

SUHFHGHQWWRKLVULJKWWRWKHUHWXUQRIWKHSURSHUW\

37 Nev. 19, 24 (1914) State v. Lamb

the legislative intent from the language employed by the legislature, it becomes apparent at

once that the duty is imposed upon the defendant, who seeks to recover the possession of his

property in a claim and delivery action, to have the sureties on his redelivery bond justify as a

condition precedent to his right to the return of the property. In other words, when the

defendant seeks a redelivery of his property, he must tender to the sheriff a redelivery bond

and give notice to the plaintiff of not less than two or more than five days that the sureties

will justify before the judge or clerk of the court, in the manner provided for the justification

of sureties upon bail on arrest. (State, ex rel. Johnson, v. Collins, Sheriff, 41 Mont. 526, 110

Pac. 526.)The interpretation of the statute as set forth in the case ofJohnson v. Collins,supra, we

believe to be the correct one, and being applicable to the matter at bar, and being under

identical statutory provisions, it is our judgment that the rule there annunciated is decisive of

the matter under consideration. To the same effect is the holding of the Supreme Court of

California, in the case ofRyan v. Fitzgerald, 87 Cal. 345, 25 Pac. 546.

[2] This matter having been presented to the court below by affidavit and application for a

writ ofmandamus commanding the sheriff to deliver the property to the plaintiff, and that

court having refused to issue the writ, it is our judgment that the petitioner has exhausted his

remedies in the district court and is entitled to have the matter heard and determined by this

court. (State, ex rel. Johnson v. Collins,supra.)[3] Respondent in his answer sets forth that, having returned the property to the defendant

prior to the time at which the petition for writ was filed in this court, he is not in possession

of said property, nor has any legal control thereof. In this respect the verified reply of

attorneys for petitioner asserts that, at the time of the taking of possession of the personal

property by the sheriff under the order for claim and delivery, the property was situated in a

room in Golconda, Humboldt &RXQW\DQGWKDWWKHSURSHUW\LVVWLOOLQWKHURRPDWWKDWSODFHDQGWKDWWKHUHKDVEHHQQRFKDQJHLQWKHVLWXDWLRQRIWKHSURSHUW\H[FHSWLQJWKDWWKHVKHULIIGHOLYHUHGWKHNH\RIWKHURRPFRQWDLQLQJWKHSURSHUW\WRWKHGHIHQGDQWLQWKH

FDVHEHORZ

37 Nev. 19, 25 (1914) State v. Lamb

County, and that the property is still in the room at that place, and that there has been no

change in the situation of the property, excepting that the sheriff delivered the key of the

room containing the property to the defendant in the case below. From this it appears that the

property is still in Humboldt County and so situated that respondent may immediately take


19/368

possession of it, if, as a matter of fact, his erroneous act of delivery to the defendant ever

really divested him of possession or control.

The law requires the sheriff, upon the receipt of the affidavit, notice, and written

undertaking provided for in section 5127, Revised Laws, to forthwith take the property

described in the affidavit and retain it in his custody. The law presumes that the sheriff shall

retain custody of the property until he delivers the same to the plaintiff or until he delivers thesame to the defendant, if the latter makes demand for the return thereof and complies with the

provisions of the statute heretofore discussed.

In an action for claim and delivery after the officer has taken possession of the property,

and between that time and the time it is delivered to either of the parties to the action, the

property is in custody of law. The wrongful delivery of the property to either party to the

action does not relieve it from this rule. The sheriff, in an action of this kind, is charged under

the law with the duty of ultimately delivering the property to one of the parties to the

litigation. (Welterv.Jacobson, 7 N. D. 32, 73 N. W. 65, 66 Am. St. Rep. 632.) The sheriff, in

an action of this character, is charged under the law with the duty of finally delivering the

property to one of the parties to the litigation. It follows, where the record discloses that the

property, although wrongfully put out of the hands of the sheriff, is still within the county, thesheriff may, and it is his duty to, retake the property.

Where, in an action in claim and delivery, the property is seized by a sheriff and afterwards

released to the defendant upon a forthcoming bond, it is still in the custody RIWKHFRXUWLQZKLFKWKHDFWLRQZDVLQVWLWXWHGDQGUHPDLQVLQWKHFXVWRG\RIWKDWFRXUWWRDELGHWKH

UHVXOWRIWKHUHSOHYLQVXLW

37 Nev. 19, 26 (1914) State v. Lamb

of the court in which the action was instituted, and remains in the custody of that court toabide the result of the replevin suit. (34 Cyc. p. 1381.) In this case, the sheriff having

erroneously released the property to the defendant, after that property was taken by him as an

officer of the court, it is still in contemplation of the law in his control and possession.

It is manifest from the record in this case that defendant, in the action in claim and

delivery, failed to comply with the terms of the statute in that no notice was given to the

plaintiff, and the sureties on the undertaking of defendant did not justify, as prescribed by

section 188 of the civil practice act. In fact, on the part of the defendant, there was no

compliance with the statute. It was therefore the duty of the sheriff, upon receipt of his lawful

fees for taking and the necessary expenses for keeping, to deliver the property to the plaintiff.

[4] If the party entitled to receive the possession of the property from the sheriff failed orrefused to pay the officer his lawful fees for taking the property and the necessary expenses

incurred in keeping the property, it was the privilege of the sheriff to retain possession until

such fees and expenses were paid. (Section 5133, Revised Laws.)

It follows that the respondent in this case should immediately retake the property

enumerated in the petition herein, or as much thereof as was enumerated in the affidavit and

notice originally received by him in the action in claim and delivery, and upon receipt of his

lawful fees, at the time at which he delivered the property to the defendant, and the necessary


20/368

expenses incurred by him to that time, deliver the property to petitioner herein.

The writ as prayed for should issue. It is so ordered.

____________

37 Nev. 27, 27 (1914) Robinson M. Co. v. Riepe

[No. 1925]

ROBINSON MINING COMPANY, Appellant, v. RICHARD M. RIEPE, HENRY FULMER,

ROY R. IVES, Doing Business Under the Firm Name and Style of Fulmer & Ives,

Respondents.

[138 Pac. 910]

1. CorporationsTransfer of SharesRefusal to TransferSufficiency of Evidence.In an action against a corporation for conversion of stock by refusing to register its transfer on its

books, evidence heldto support a finding that the transfer was a bona fide transaction.

2. ConversionIssuesProof and VarianceDate of Conversion.In an action against a corporation for conversion of stock in refusing to register its transfer on its

books, it was not necessary that the proof should be in strict conformity with the averment as to the date

of conversion.

3. ConversionRefusal of Corporation to Transfer StockConditions Precedent to Action.Where the secretary of a corporation refused to register a transfer of stock when presented by the

transferee, no formal demand was necessary before bringing an action for conversion, since the refusal

was an assertion of ownership by the corporation.

4. Appeal and ErrorFindingConclusiveness.Where there is a substantial conflict in the testimony, the appellate court will not substitute its

judgment for that of the trail court, and will only interfere when it is clear that a wrong conclusion was

reached.

5. ConversionRefusal of Corporation to Transfer StockMeasure of Damages.In an action against a corporation for the conversion of stock in refusing to register its transfer on its

books, the measure of damages was the value of the stock at the date of conversion, with legal interest

from the conversion to judgment.

6. New TrailNewly Discovered EvidenceDiligenceAffidavit.Where, on motion for new trial on the ground of newly discovered evidence, the affidavit of the

moving party merely stated conclusions as to exercise of diligence, without setting out the facts, so that

the court could draw its own conclusions, it was insufficient.


7. New TrialNewly Discovered EvidenceDiligence.Where the alleged newly discovered evidence would consist of the testimony of witnesses who

resided at the place of trial and were present at the trial to the knowledge of the moving party, or who


21/368

testified as witnesses in the case, sufficient showing of diligence is not made out.

8. New TrialNewly Discovered EvidenceImpeaching Evidence.It is not abusive of discretion to refuse a new trial upon alleged newly discovered evidence where

such new evidence is only of an impeaching character.

Appeal from the Fourth Judicial District Court, White Pine County; GeorgeS.Brown,

Judge.

Action by the Robinson Mining Company against Richard A. Riepe, Henry M. Fulmer,

and others. From a judgment for defendant Fulmer on his cross-complaint, plaintiff appeals.

Affirmed.

S.W.Belford, for Appellant.

Chandler&Quayle and GilbertA.McElroy, for Respondent.


This is an appeal from an order of the Ninth judicial district court denying appellant's

motion for a new trial. Judgment in this case was rendered on the counterclaim interposed by

Henry M. Fulmer, who was made defendant in an action brought against himself, together

with other defendants, by the appellant corporation. Respondent Fulmer's cause of action was

acquired by him through assignment from one E. W. Hulse. The latter had purchased from

Fulmer 21,500 shares of the capital stock of appellant corporation, giving in payment thereof

his personal promissory note unsecured and $100 in coin. The secretary of the appellant

corporation refused to transfer the stock on the books of the company when Hulse presented

the certificate purchased from Fulmer. Respondent Fulmer consented to a rescission of the

contract existing between himself and Hulse relative to the purchase of the stock; the stock

being returned to Fulmer, together with an assignment of Hulse's cause of action. HulseUHFHLYHGEDFNKLVLQFRLQDQGDOVRWKHSURPLVVRU\QRWH


received back his $100 in coin, and also the promissory note.

The appellant company moved the trial cout to set aside the decision and judgment, and

grant a new trial thereof upon the counterclaim of Henry M. Fulmer against appellant upon

the following grounds: FirstThat the evidence is insufficient to justify the judgment of the

court in favor of defendant Henry M. Fulmer, and against plaintiff, * * * and that saidjudgment is against the law. SecondThat the said plaintiff Robinson Mining Company has

newly discovered evidence to offer in its behalf material for the plaintiff, and pertaining to the

said claim of the said defendant Henry M. Fulmer, against the defendant, which it could not

with reasonable diligence have discovered and produced at the trial.

Respondent Fulmer's cause of action, as set forth in his counterclaim, being an action in

trover, was based upon the assignment of a cause of action accruing in favor of Hulse, due to


22/368

the fact that the appellant company, having refused to transfer the shares of stock upon its

books, had converted the stock to its own use to the damage of Hulse; Hulse's cause of action

having been assigned to Fulmer.

[1] The record in this case discloses a series of most peculiar transactions. In Fulmer's

counterclaim it is asserted that the conversion took place on the 17th day of June. The

testimony of D. W. Ellis, secretary of the appellant company, is as follows: Mr. Hulseapproached me on the street, and I refused to cut up the stock. There was some little

discussion there; but I did not give him any reason at that time. When he handed me the stock

at the office I told him the reason I would not cut up that stock was because it was pooled. I

was under the impression that the pool was not out yet; but I was wrong in that impression.

There were a few further reasons which I would not state at that time. The company had

grievances against several people; but I did tell him there were other reasons.


The testimony of Fulmer and Hulse, as disclosed by the record, substantiates a bonafide

transaction in the transfer of the stock from the latter to the former. Although the transaction

itself was one of an unusual character, and perhaps subject to some suspicion, there is nothing

disclosed that would cause one to believe that it was other than that of a bonafide nature.

Fulmer's acceptance of an unsecured promissory note in payment for a large sum of money,

and his delivery of the stock to Hulse upon receipt of that note, is emphasized by the

appellant as indicating a suspicious transaction; but the dealings of men in matters of this

character cannot be viewed with suspicion merely because one appears to place unusual faith

in the honesty of another. After the company had refused to transfer the stock for Hulse, or to

cut it up, as he terms it, Fulmer's act in permitting a rescission of the contract between

himself and Hulse appears from the record to have been one of a voluntary nature, by whichhe gave back what he had received for Hulse, and in return accepted the stock from Hulse and

an assignment of the latter's cause of action against appellant. Nothing in these transactions

would indicate anything other than a peculiar yet honest dealing between the two men.

Prior to the assignment of Hulse's cause of action to Fulmer it is admitted that he had

instituted proceedings in mandamus to have the stock transferred. With reference to Hulse's

cause of action against appellant corporation, which cause of action was assigned to Fulmer,

and upon which cause of action judgment is rendered in favor of Fulmer, it is alleged in the

counterclaim that the presentation of the stock was made on the 17th of June. The testimony

both of the witness Ellis and Hulse discloses that this presentation was made upon the street,

in the way of a request by Hulse to have the stock cut up. A subsequent presentation wasmade in the office of the company. The secretary of the company, Mr. Ellis, to whom this

request was made, both on the 17th of June and on the next occasion, whether it be on the

18th, 19th, or 20th, refused to transfer the stock; the principal UHDVRQJLYHQWR+XOVHDWWKDWWLPHE\WKHVHFUHWDU\EHLQJWKDWWKHVWRFNZDVVWLOOLQSRROEXWLQKLVWHVWLPRQ\DWWKHWULDO

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23/368


reason given to Hulse at that time by the secretary being that the stock was still in pool, but in

his testimony at the trial it is disclosed that there were other reasons in his mind.

He says: There were other reasons which I would not state at the time. The company had

grievances against several people; but I did tell him [Hulse] there were other reasons.

In his cross-examination Mr. Ellis states: Well, the board of directors, Mr. Dickerson and

Mr. O'Neil, we knew they were selling that stock for a great deal less than they should sell it

for, and that the stock belonged to the company, and it was the 50,000 shares that we had that

I had notified Mr. Dickerson and Mr. O'Neil that was still left, and that we would take some

action in regard to having it put back into the treasury. I did not want to make any more

certificates on that account.

[2] As to whether or not the conversion actually took place on the 17th of June is

immaterial. It was not necessary at common law, and is not necessary under our practice, that

the proof should be in strict conformity with the averment as to date of conversion, and the

allegation as to the time of conversion is immaterial. This point has been heretofore settled bythis court. (Hixon v. Pixley,15 Nev. 475; Bancroftv.Haslett, 106 Cal. 151, 39 Pac. 602.)

[3] Appellant contends that the evidence is not sufficient to support the judgment, because

there was no evidence to support a formal demand for the transfer of the stock to any specific

person, or in any designated number of certificates. The rule applying to this contention, as

well as to that of the variance in time, is well established, and is well stated by a very recent

case decided by the Supreme Court of Oklahoma, in which that court held that, in a suit for

conversion of personal property, where the taking possession and conversion is wrongful, no

demand is necessary before bringing suit, for the wrongful taking and conversion is an

assertion of ownership. (Bilby v.Jones, Okl. 136 Pac. 414.)

From the testimony of the witness Ellis, it is disclosed WKDWXSRQLQVWUXFWLRQIURPWKHERDUGRIGLUHFWRUVKHUHIXVHGWRWUDQVIHUWKHVWRFNZKHQWKHVDPHZDVSUHVHQWHGE\

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that, upon instruction from the board of directors, he refused to transfer the stock when the

same was presented by Hulse. It was immaterial as to whom Hulse might have requested the

stock to be made out, or as to how the certificate was to be cut up. The conversion took place

when the refusal was made to transfer the stock. This of itself constitutes an assertion of

ownership on the part of the appellant corporation, acting through its instructedrepresentative, the secretary. It is not contended that any different postion would have been

taken by the appellant corporation with reference to the transfer of the stock, had Hulse

designated the names of the parties to whom the stock was to be made out.

[4] The findings of the trial court upon the facts presented by the evidence, in so far as that

evidence is disclosed by the record, is in our judgment substantiated. If there is any conflict, it

is our judgment that it is a conflict that is substantial, and it is a rule long since established by


24/368

this court that, where there is a substantial conflict in the testimony, this court will not

substitute its judgment for that of the trial court, and will only interfere when upon all of the

evidence it is clear that a wrong conclusion has been reached. (Wattv.Nev.Cen.R.R.Co., 23

Nev. 154, 44 Pac. 423, 46 Pac. 52, 726, 62 Am. St. Rep. 772; PotosiZincCo. v.Mahoney,et

al., 36 Nev. 390, 135 Pac. 1078.)

The testimony of Hulse and Fulmer and the entire transaction between them as related bythe record is not entirely free from suspicion. On the other hand, the record fails to clear the

appellant of suspicion. There are transactions set forth by the record on the part of both

parties that demand careful scrutiny. However this may be, there is nothing in the record

relative to the transaction between Hulse and Fulmer that would justify a court of review in

saying that their testimony was utterly untrustworthy. In a case of this character it was the

duty of the trial judge to determine from all the facts before him the truth or falsity of the

testimony as JLYHQE\WKHUHVSHFWLYHSDUWLHVDQGWKHVHYHUDOZLWQHVVHV


given by the respective parties and the several witnesses. In this respect it appears from the

decision of the trial judge in the files of this case that he carefully considered everything

applicable to the case as it was presented to him, and after a careful scrutiny said that he saw

no reason why he should refuse to believe the evidence of Hulse and Fulmer, or that there

was other than a bonafide transfer of the 21,500 shares of stock from Fulmer to Hulse prior

to the demand made upon the appellant for the transfer of the stock upon its books. The trial

judge having considered the testimony of Hulse and Fulmer worthy of credit, the evidence is

sufficient to sustain the judgment. (Pinschower,etal., v.Hanks, 18 Nev. 99, 1 Pac. 454.)

[5] In fixing the value of the stocks at the time of conversion, the trial court determined on

40 cents per share. The appellant company, in its complaint, alleged that the stock of thecompany was worth 50 cents per share at the time of bringing suit. This allegation was not

denied by respondent in his answer. The witness Hulse testified: I could not get Robinson at

that time [referring to the time of the refusal of appellant to transfer the stock] for less than 40

cents, except this large block of stock which I purchased at a smaller figure. * * * I had a few

sales on at 40 cents.

This point has been settled by this court, and the rule established that in cases of this

character the damages which necessarily follow from the wrongful act of conversion are the

value of the property at the time of conversion, with legal interest from conversion to

judgment. (Boylan v.Huguet,8 Nev. 345; Wardv. CarsonR.WoodCo., 13 Nev. 44.)

[6] In furtherance of their motion for a new trail appellant sought to rely upon newlydiscovered evidence, and in support thereof they filed the affidavit of Denver S. Dickerson,

president of the appellant corporation, supported by the affidavits of George Devecmon and

Anthony Jurich.

It appears from the written decision of the trial court, PDGHDSDUWRIWKHUHFRUGLQWKLVFDVHWKDWWKHDIILDQW'HYHFPRQZDVDZLWQHVVDWWKHWULDODQGWKDWWKHDIILDQW-XULFKKDG

DOVREHHQSUHVHQWGXULQJWKHWULDODQGKDGIRUPHUO\EHHQDQDWWRUQH\IRUWKHGHIHQGDQWV


25/368


made a part of the record in this case, that the affiant Devecmon was a witness at the trial, and

that the affiant Jurich had also been present during the trial, and had formerly been an

attorney for the defendants. While the record does not bear this out in other respects than bythe written decision of the trial judge, his remarks in that respect are not controverted, hence

we assume that they are correct. Regardless of what may be stated in the affidavits of Jurich

and Devecmon, the affidavit of D. S. Dickerson, representing the moving party, is the one

that must be especially subject to scrutiny, because, to entitle a party to anew trial on the

ground of newly discovered evidence, it must be shown by the moving party, or his

representatives, that such evidence could not with reasonable diligence be discovered and

produced at or during the trial. It must be shown that the same is true, and it is in the affidavit

of the moving party that the facts must be set out showing the diligence used to procure such

evidence.

The affidavit of the affiant Dickerson, after setting forth his official position as presidentof the corporation, sets forth: That, prior to and during the trial of the above-entitled cause,

he endeavored with all reasonable diligence to assist the plaintiff in procuring evidence, and

in ascertaining the facts out of which said controversy arose. That he has read the affidavit of

Anthony Jurich, and that the contents thereof were not known to affiant prior to or during the

trial of the said cause, and that he first learned of such facts set forth in said affidavit after the

decision had been filed in said cause. Affiant further states that he could not have procured

such testimony in time for the use thereof at the trial, nor with reasonable diligence could he

have so procured it.

The declarations of diligence in this affidavit are mere conclusions, and set out no showing

of diligence or facts from which diligence might be inferred. Where newly discovered

evidence is asserted as grounds for a new trial, the affidavit of the moving party is the basic

thing upon which a new trial may be granted, because it is in WKDWWKDWDWULDOFRXUWPXVWILQGWKHHVVHQWLDOHOHPHQWVQHFHVVDU\WRDXWKRUL]HLWWRDFWLQJUDQWLQJDQHZWULDODQGXQOHVV

WKHVHHVVHQWLDOVDUHVHWIRUWKWKHFRXUWLVQRWZDUUDQWHGLQGLVWXUELQJWKHMXGJPHQW


that that a trial court must find the essential elements necessary to authorize it to act in

granting a new trial, and, unless these essentials are set forth, the court is not warranted in

disturbing the judgment. (Wardv. Voris, 117 Ind. 368, 20 N. E. 261.)[7] If the witnesses from whom this newly discovered evidence is to be obtained were

witnesses at the trial, or were present in court during the trial, their testimony if material,

could have been procured by reasonable diligence. If they were really in possession of the

facts set forth in their affidavit, inquiry on the part of the representatives of the appellant

company would have disclosed these facts, and their testimony could have been produced at

the trial. It has been held that a motion for a new trial on the grounds of newly discovered


26/368

evidence is properly denied, where the proposed new witnesses were residents of the city

where the trial was held, and one or both were present at the trial to the knowledge of the

moving party, and their testimony, if material, could have been procured by reasonable

diligence. (Goodeve v. Thompson, Or. 136 Pac. 670.)

[8] Moreover, the newly discovered evidence as set forth by the affidavits of the proposed

witnesses in this case savors strongly of being impeaching in character. While the recordbefore us as to the testimony given at the trial is not entirely complete, the trial judge was in a

position to know whether or not it was true, and his refusal to grant a new trial, if the

proposed newly discovered evidence was of an impeaching nature, was no abuse of

discretion. (Whise v. Whise, 36 Nev. 16, 131 Pac. 967, 44 L. R. A. n. s. 689;Armstrong v.

YakimaHotelCo., Wash. 135 Pac. 233.)

Moreover, the statements made by the affiant Dickerson, representing the moving party, to

the effect that he endeavored with all reasonable diligence to assist the appellant in

procuring evidence, and ascertain the facts out of which such controversy arose, and, nor

with reasonable diligence could he have so procured it, are too general. This matter has been

decided by the case RI3LQVFKRZHUHWDOY+DQNVVXSUDZKHUHLQWKLVFRXUWVDLG7KH

DFWVSHUIRUPHGE\WKHP>WKHPRYLQJSDUW\@VKRXOGEHSDUWLFXODUO\VWDWHGVRDVWRHQDEOHWKHFRXUWWRGHWHUPLQHZKHWKHUWKHFRQFOXVLRQVVWDWHGLQWKHDIILGDYLWDUHVXSSRUWHGE\

WKHIDFWV


ofPinschower,et.al., v.Hanks,supra, wherein this court said: The acts performed by them

[the moving party] should be particularly stated, so as to enable the court to determine

whether the conclusions stated in the affidavit are supported by the facts. It is the duty of the

litigant to be active and diligent in procuring the testimony upon which they rely to maintaintheir cause. Trials are not to be encouraged as experiments. A party is not allowed to present

his case by piecemeal; to take a part of the facts first, and then, if he fails, apply for a new

trial, and seek to strengthen his case by a statement of other facts which were reasonably

within his power to present at the first trial. He must make diligent search and inquiry in

advance of the trial, and be able to show, to the satisfaction of the court, that he used

reasonable diligence.

Whatever may be said as to the peculiarities of the transactions on the part of the

prevailing party to this judgment, or whatever may be said as to the peculiar attitude of the

representatives of the appellant corporation relative to their refusal to transfer the stock when

the same was presented by Hulse, the trial judge had opportunity to view the witnesses and

observe their attitude upon the stand, and, unless the record brought to this court showed

evidence which preponderated against his judgment, his determination of the case should not

be interfered with.

In denying the motion for anew trial upon the ground of newly discovered evidence, it is

our judgment that no error of law was committed, and there was no abuse of discretion.

It follows that the order of the trial court in refusing a new trial should be affirmed, and it

is so ordered.


27/368

____________

37 Nev. 37, 37 (1914) State v. Brodigan

[No. 2108]

STATE OF NEVADA, Ex Rel. EMILIO DOTTA, Relator, v. GEORGE BRODIGAN, as

Secretary of State, Respondent.

[138 Pac. 914]

1. Constitutional LawReferendum Provisions.

Const. art. 19, sec. 1, declares that, whenever 10 per cent of the voters shall express their wishthat any law or resolution of the legislature shall be submitted to a vote of the people, the officers charged

with the duty of announcing elections shall submit the question to be voted on. Section 2 declares that, ifa majority of the voters at an election shall signify approval of a law or resolution, such law shall stand

or, if the majority be against it, it shall be void. Section 3 declares that the electors reserve to themselves

the power to propose laws and propose amendments of the constitution, and to enact or reject the same at

the polls independent of the legislature, that the first power is the initiative, and no more than 10 per cent

of the qualified voters shall be required to propose any measure, and that initiative petitions, except in

municipal legislation, shall be filed with the secretary of state not less than thirty days before any regular

session of the legislature, and the secretary shall transmit the same to the legislature as soon as it

convenes, and that the second power by the people is referendum, which shall be exercised in the manner

provided.Heldthat, while this article declares that it shall be self-executing, yet it does not impose upon

the secretary of state the duty to file a referendum petition for the submission of an act of the legislature

to the voters of a county at the next general election, and hence the filing of such a petition cannot be

coerced by a mandamus for, though a constitutional provision declares it shall be self-executing, yet, if itdoes not provide for the manner of its execution, the execution must be provided for by statute.

2. Constitutional LawReferendumConstruction.The provisions of section 3 of article 19 of the state constitution that the second power reserved by

the people is the referendum, which shall be exercised in the manner provided in sections 1 and 2, apply

to state elections.

3. Constitutional LawReferendumSelf-Executing Provisions.While it is provided that the provisions of article 19 shall be self-executing, but legislation may be

enacted to facilitate its operation, the further provision that the legislature may provide by law for the

manner of exercising the initiative and referendum powers as to county and municipal legislation, makes

it apparent that it was intended that further legislation should be enacted for carrying into effect that part

relating to county matters, as the article itself makes no such provision.

37 Nev. 37, 38 (1914) State v. Brodigan

Original proceeding. Petition by the State, on the relation of Emilio Dotta, for writ of

mandamus directed against George Brodigan, as Secretary of State. Petition denied.


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OttoT.Williams, for Relator.

Geo.B.Thatcher, Attorney-General, andMiltonB.Badt, for Respondent.

By the Court, Talbot, C. J.:

Relator, as a taxpayer, applies for a writ ofmandamus commanding respondent, as

secretary of state, to file a referendum petition which asks for the submission to the qualified

voters of Elko County, upon the official ballot at the next general election, of the act passed at

the last session of the legislature, entitled An act to authorize the board of county

commissioners of the county of Elko, State of Nevada, to issue bonds to provide for the

construction, equipment, and furnishing of a high-school building in the town of Wells,

Nevada, and authorizing the county board of education of said county to construct, equip, and

furnish said building.

It is alleged that the number of signatures of qualified voters appearing on the petition

presented to the secretary of state is more than 214; that the total vote cast in Elko County for

justice of the supreme court at the last general election was 2,015, and that the petition wassigned by more than 10 per cent of the qualified electors of that county.

The constitution, as amended by article 19, provides:

Section 1. Whenever ten per centum or more of the voters of this state, as shown by the

number of votes cast at the last preceding general election, shall express their wish that any

law or resolution made by the legislature be submitted to a vote of the people, the officers

charged with the duty of announcing and proclaiming elec

nevada reports 1914 (37 nev.).pdf

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